Attorney General backs Government legal stance on care home charges and disability payments

The Attorney General has backed up the controversial Government stance on historic nursing home charges and discontinuance of the disabled allowance for people entering State-run institutions.

Rossa Fanning SC concluded that the legal advice given to Government over lawsuits concerning charges levied for private nursing home care was “sound, accurate and appropriate.”

He found there “is and was” a genuine legal defence to cases taken against the State — even though a small number were settled.

The determination will act as a huge deterrent to anyone who may have been considering fresh legal action as a result of the leaking by a whistleblower of internal Department of Health documents that appeared to cast doubt on the defensibility of the nursing home cases.

A secret memo prepared for Cabinet in 2009 warned the State could face €700m in claims for the cancelled disability payments, it was revealed last week.

On the discontinuity of the disabled allowance — when those institutionalised would separately be fully maintained and be allowed so-called “pocket money” — the Attorney General has found no illegality and no requirement to make restitution.

The attitude of the State was criticised heavily in the Dáil last week after the selective leaks, which Taoiseach Leo Varadkar warned were likely to give a “false impression” on nursing home liability.

He insisted it had not been established that the State had illegally charged any medical card holders in private nursing homes.

But the Taoiseach also admitted that the legal advice on disability welfare denial in the past was that the State “didn’t have a leg to stand on,” Leo Varadkar said. Some 12,000 people are thought to have been affected.

The Ministers for Health and for Social Protection, Stephen Donnelly and Heather Humphreys, will now consider the AG’s report and revert to Government within three months.

The report will also be discussed in the Dáil this week.

The Attorney General points out that the public interest is “the only interest that the State can have regard to,” and points out that this must include consideration of the interests of taxpayers.

It must also consider those dependent on public services today, as well as claims relating to the past, he finds.

While emphasising that the policy choices arising from the legal advice were ultimately matters for the Department of Health, the Attorney General states that it is clear the Department “acted prudently” in settling claims involving care in private nursing homes out of court.

This was preferable from the point of view of the public purse to “risking an adverse outcome in a test case, which could have provoked many more historic cases, with a very substantial potential exposure for the taxpayer”.

The report also considered the Disabled Persons Maintenance Allowance (DPMA) and the historical question of the legal authority of the Minister to withhold payment of the allowance to persons in full-time residential care.

Mr Fanning confirms that there was “no positive legal duty to make retrospective payments,” a finding that the Government will greet with relief, although an official statement only said that ministers “noted” the conclusions.

The report analyses the nature of the State’s overall approach to civil litigation and provides an explanation of the litigation process.

It stresses the importance of privilege — in terms of legal advice — to the State’s ability to defend itself in legal proceedings.

The AG also notes that Cabinet confidentiality is enshrined in the Constitution.

The report deals with the statutory background to the nursing homes charges, the Fair Deal scheme and litigation relating to the charging for in-patient services.

The AG concludes that the legal advice on litigation over charges levied for private nursing home care was sound, accurate and appropriate.

Mr Fanning concludes that there was good reason for the State to be concerned about its prospects of successfully defending one particular case that was brought, at least as insofar as the period between 1983 and 1996 was concerned.