The Attorney General’s report on the state’s legal strategy towards legacy nursing home charges and disability payments has been criticised as “blinkered”.
On Tuesday, the Cabinet received a report from Attorney General (AG) Rossa Fanning, which found that the state’s approach to settling cases outside of court legally “sound, accurate and appropriate”.
Commenting on criticism of a state legal strategy to settle cases taken by medical card holders who had paid for care in private nursing homes before 2005, rather than risk an adverse outcome in court, Mr Fanning said “this is precisely how our legal system works”.
He said that the state had acted “prudently” to settle a small number of claims involving care in private nursing homes rather than risking an adverse outcome in a test case, “which could have provoked many more historic cases, all for the account of the taxpayer”.
There has been criticism from the opposition of the Attorney General’s report, with Labour leader Ivana Bacik saying the analysis failed to take into account of the state’s ethical duty, and People Before Profit TD Brid Smith calling the report “quite political”.
Aontú leader Peadar Tóibín said that the government has a duty of care to its most vulnerable citizens and should not “do citizens out of their entitlements”.
During Leaders’ Questions, co-leader of the Social Democrats Catherine Murphy said the Attorney General’s report was “incredibly blinkered”, and said that “cost containment is repeatedly conflated with public interest”.
“In summary, keeping costs down is good, screwing over vulnerable citizens is legally sound,” she told the Dáil.
She also criticised the Attorney General’s analysis of the state’s liability in relation to disability payments that had not been paid to people in residential care prior to 2007.
Despite the Taoiseach indicating last week that the state did not “have a leg to stand on” in relation to legacy disability payments, Mr Fanning concluded that the state had no legal obligation to provide redress, and any claims that might now be brought are “very historic indeed, if they are not all statute barred”.
Ms Murphy said: “Even in the case of the state effectively illegally stealing disability payments from the most vulnerable citizens, the AG tells us there is no positive legal obligation to repay those funds.
“I have been thinking about that line since since I read it in the report – ‘no positive legal obligation’ – and have to say, I find that really extraordinary.
“This is a bold admission that the state had no valid legal authority to withdraw the meagre disability payments from extremely vulnerable citizens who are in residential care – and no strict legal duty to repay that money, so effectively it didn’t bother.”
Comparing the case to the tracker mortgage scandal, Ms Murphy asked whether the state would prefer if banks took the same “scorched earth approach” that had been adopted in these instances.
She argued that the many Irish people do not have the capacity to sue the state to enforce their rights and entitlements, and added that “we expect the state to own up to its wrongs and to undo those wrongs”.
“In this case, we have a state behaving with less of a moral compass than the banks,” she said.
Taoiseach Leo Varadkar raised the AG’s report analysis that highlighted the need to balance the cost of redress with providing for its citizens in the future, as well as the right to a confidential strategy when taking legal cases.
Mr Varadkar also raised a point made by the AG that the state “is not a normal litigant”.
“I’ve heard people describe the state as being callous or operating like a company in the way it defends cases – that isn’t the case,” the Taoiseach told the Dáil.
“All the time, the government takes a decision to do things that it’s not legally required to do so.
Legal approach
“He also points out, which I think is important, is that in settling a case, it is essentially a compromise.
“Settling a case doesn’t mean that you’re accepting that you’re in the wrong.
“It is done by agreement on both sides, cases can’t be settled unless both sides agree to the settlement. Nobody can be forced into a settlement, they’re always free to have their cases tested in court and these cases may yet be tested in court.”
Mr Varadkar added that the partially leaked draft memo from 2009 on the state’s legal approach to legacy disability payments “didn’t cover all of the facts”.
“One thing we know now, just since (the leaked memo was published), is there actually were three periods involved – a period between ’83 and ’96 when the law was one thing; a period between ’96 and ’99, when the law was another thing, and a period between 1999 and 2007 when the law was different again,” he said.
“And that just gives you an example of how much more complexity there is to this, and how much more truth there is to this, than what has been presented in certain places in recent times.”
Following Leaders’ Questions, when asked by Sinn Fein president Mary Lou McDonald whether he would make himself available to the Dáil to address questions about his involvement, Mr Varadkar said he is available to the house twice a week.
“I’m happy to answer any questions that the deputy has on those matters to the best of my ability, and where decisions I made were correct I’ll explain why, and if they were wrong, I’ll say they were wrong,” he said.
The Minister for Health and Minister for Social Protection are also examining the issue – including looking at documents from the 1970s and 1980s – and are to produce a report within three months, the Taoiseach said.
The Dáil is due to hear statements on the issue on Thursday afternoon.
