Taoiseach Leo Varadkar has said the State had no legal defence to withhold disability payments from people in institutional care, but he stressed it is “different in substance” to the nursing home charges story.
It comes after RTE Investigates revealed the State denied thousands of vulnerable people in residential care their Disabled Persons Maintenance Allowance (DPMA).
A memo which dates back to 2009 reportedly outlined that if families were to take cases, they would likely succeed.
Sinn Fein president Mary Lou McDonald said it was another strategy to “conceal, to deny, to cover up”, instead of protecting vulnerable citizens.
It comes after the Mail On Sunday revealed a legal strategy by the State in relation to families who were forced to use private nursing homes when public spaces were not available.
It has been reported the strategy sought to settle the cases out of court to prevent further cases from being taken, in relation to charges for nursing home care deemed “illegal” by a 2010 Ombudsman’s report into the issue.
Whether the charges are illegal has never been tested in the courts, but the State maintains there is no obligation on it to pay for private nursing home care.
Ms McDonald said vulnerable people need government “to stand up for them – instead of governments facing them down and fighting them tooth and nail at every turn to deny them things that they were entitled to”.
Mr Varadkar said the two issues are very different.
During leaders’ questions on Wednesday, he told Ms McDonald: “The legal advice in relation to the DPMA was that the State didn’t have a leg to stand on.
“The legal advice in relation to the nursing homes is that those charges were not illegal, and that’s never been established, deputy.
“You’re making an assertion that is not established and hasn’t been established and your ultimate assertion that people are prevented from going to court – nobody is prevented from going to court, deputy. You can’t prevent somebody from going to court in Ireland. That’s an entirely false statement.
“There were cases that were settled and there are cases that have not been settled and they may yet go to court, deputy, so that assertion is also false.”
He added: “The Disabled Persons Maintenance Allowance… was paid between ’73 and ’96 under the Health Act of 1970 by the former health boards.
“I’m advised that the allowance – which could be and was used for food, heating, electricity, rent and so forth – was paid to people who could not provide for themselves.
“The policy position at the time – rightly or wrongly, this going back to the ’70s, ’80s and ’90s – was that this money was no longer required as the individuals were living in state-funded residential care and those needs were being met.
“And so people with a disability who were resident in long-term care facilities did not receive this allowance after the first weeks in residential care. In 1996, the allowance was renamed the disability allowance and responsibility for it was transferred to the department of social, community and family affairs, as it was called at the time.
“Since 2007, it has been paid in full to people with disabilities living in long-term care, so this matter was resolved 15 years ago.
“However, the question that arose in 2009 is whether there should have been back pay – whether there should have been retrospection. It is a historic issue, it is a legacy issue, but it does appear different to the nursing home charges issue to me.”
He said the government would look into the issue in the coming weeks before responding further.
Labour leader Ivana Bacik said the State’s approach to litigation was “indistinguishable from any faceless private corporate entity – it’s a war of attrition against those who dare to sue it”.
She called on the Government to re-evaluate the role of the Attorney General, and said it “wasn’t right or transparent” that ministers can “hide behind unpublished legal advice” given by that office.
Mr Varadkar repeated that the issues are very different.
“It does appear different to the nursing home charges issue to me, it appears different in substance because the legal advice is different,” he said.
He added that the governments he has been a part of have worked to right the past wrongs of the State – mentioning cases of redress provided to people affected by Magdalene Laundries, Mother and Baby Home institutions, symphysiotomy, and mica and pyrite defects.
“We’ve put a huge amount of time and care and resources into putting right some of the wrongs of the past, even where there is no legal liability on the State,” he said.
He said that this also involves protecting the taxpayer and to protect the common good, which “means balancing the future and the past”.
“I do think the government has a responsibility to do what is right and just, and we do also have a responsibility to protect the taxpayer and the common good. You can’t spend the same euro twice,” he said.