Explainer: The ‘secret plan’ to block nursing home refunds

What’s this latest controversy about?

Nursing home charges. Questions have been raised about whether the State ever had the power to levy contributions from some individuals and families over elderly care in institutions.

Why is it coming up now?

Because a whistleblower has gone to a Sunday newspaper, apparently with authentic internal papers, in which officials seem to concede that the State has potential liabilities – and that the cost could run to €12bn.

That’s a big figure. It must have been of huge concern, reached the desks of successive health ministers and been debated around the cabinet table?

Well, that’s just it, you see. Despite these memos and a supposed secret strategy to fight claimants tooth and nail – in fact, almost all the way to the steps of the court before the State would suddenly settle – some former health ministers claim to be unaware of it.

There is no public evidence of a cabinet conference on the matter. However, all cabinet discussions are top secret.

Who are the people once in charge who seem never to have been taken into the confidence of civil servants or the State’s legal advisers?

Well, the Tánaiste for one. Micheál Martin was minister for health when it blew up. He received a file in preparation of a top-level meeting in December 2003. But two years later, he told the Dáil’s Health Committee that he didn’t read it.

The document within suggested some nursing home charges were illegal. Mr Martin said he finally read the legal opinion, which he said was “of significance” in 2005.

But he said he had only got the file via email the night before a meeting in Dublin. He then received a hard copy in the car on his way to the meeting, for which he was late. “There was no opportunity for me to read the briefing material,” he told the committee.

Leo Varadkar, who became minister for health much later, said: “I was never party to devising a legal strategy relating to nursing home charges.”

Does this make a huge state payout for mica, pyrite and apartment defects look like chump change?

Probably not. In the first place, as the Taoiseach has pointed out, the State has at no point conceded that private nursing home charges were covered by medical cards, or that legislation was lax in conferring the power to extract onward charges.

It might still take a contested court case to provide final legal clarity. Secondly, there could well be legal limitations to bringing a case for compensation now, almost two decades after the fact, and in relation to a person who has very likely since died, and who is not the complainant, or chargeable person.

What’s likely to happen?

A lot of political charge-making and shape-throwing. In relation to any question of refunds, it could be that the Exchequer’s attitude boils down to their alleged “secret” approach in the first place – “Come on, if you think you’re hard enough”.