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Ombudsman Publishes Report on Nursing Home Subventions By Health Boards 30/1/2001

Ombudsman Publishes Report on Nursing Home Subventions By Health Boards 30/1/2001

The Ombudsman , Kevin Murphy, has today ( 30 January ) published his report on the payment of nursing home subventions by the health boards. The report, which he has presented to the Dáil and the Seanad, examines the operation of the subvention scheme by the health boards; it deals also with the role of the Department of Health and Children (the Department) in making regulations and in overseeing the introduction and operation of the scheme nationally. The report considers the nature of the relationship between the Department and the Oireachtas on the one hand, and that between the Department and the health boards, on the other.

The Ombudsman's Office has been receiving complaints about this issue since the subvention scheme was introduced in 1993. The Ombudsman found that maladministration had occurred on a significant scale. The actions or inactions of the Department and the health boards were "taken without proper authority", were "improperly discriminatory" and were generally "contrary to fair or sound administration"

As a result of this investigation fundamental changes, which mirror the concerns expressed by the Ombudsman, have been made to the content of the Regulations. Family assessment has been removed and the health boards were provided with additional funding of �2.1m in 1999, to cover the cost of the removal on a current basis. The Department subsequently received approval from the Department of Finance for the payment of arrears in those cases where family assessment operated. The Department's rough calculation is that such payments would cost up to �6m. In December 1997 the Department allocated a sum of �4m for the purpose, among others , of paying subvention arrears to claimants affected by the failure to correctly apply the " pocket money " provisions in the regulations. In addition the Department has now advised that the subvention rates are to be increased with effect from April 2001. The new maximum weekly rates will be �90, �120 and �150 in place of the current maximum rates of �75, �95 and �120.

The report is concerned with a particular social policy initiative, how it was conceived, provided for in legislation, funded and implemented. Serious issues in regard to the relationship, on the one hand, between the Oireachtas and the Executive and, on the other, the relationships within the Executive between the political and administrative levels are identified. These issues include the effective vetting of secondary legislation, the relationship between Ministers and senior civil servants, the funding of entitlements and human rights issues in relation to the elderly. In the report the Ombudsman outlines how these issues might be progressed.

The investigation report is being published in full because of the important issues analysed in the report and in order to improve public awareness of the detailed and painstaking research required in such investigations.

A summary of the report is attached. Copies of the full report are available on request and on the Office's website ( http://www.irlgov.ie/ombudsman/ ). For a fuller briefing on the report please contact either Michael Brophy or Bernard Rooney at 01 6785222

SUMMARY

The Report describes the Ombudsman's investigation into the payment by health boards of subsidies or subventions to patients in private nursing homes as provided for in the Health (Nursing Homes) Act, 1990 (the 1990 Act). The report is a case study in public administration which examines the operation of the subvention scheme by the health boards; it deals also with the role of the Department of Health and Children (the Department) in making regulations (as provided for in the 1990 Act) and in overseeing the introduction and operation of the scheme nationally. The report considers the nature of the relationship between the Department and the Oireachtas on the one hand, and that between the Department and the health boards, on the other.

The report arises from an investigation conducted by the Ombudsman in accordance with Section 4(2) of the Ombudsman Act, 1980. It focuses on two aspects of the subvention system. First, the assessment of family circumstances whereby the health boards were effectively ( but wrongly ) including the income of the applicants' children in the calculation of subvention entitlement. Second, the application of the subvention system in a manner which negatived the clear intention that nursing home patients should retain a minimum level of their own income as pocket money.

The Ombudsman found that maladministration had occurred on a significant scale. The actions or inactions of the Department and the health boards were "taken without proper authority", were "improperly discriminatory" and were generally "contrary to fair or sound administration". Despite the actions which have now been taken by the Department to remedy the situation, the question must be raised of to whom, or to what, is this maladministration to be attributed and consideration must be given to whether or not there were mitigating circumstances. It is the Ombudsman's view that any attempt simply to apportion blame, without regard to the complexities of the framework within which government in Ireland operates, runs the risk of the central message in this report being overlooked. There was a failure of the Houses of the Oireachtas in supervising the making of the regulations, and in ensuring the accountability of successive Ministers. There was a breakdown in the accountability relationship between Ministers and senior civil servants and , at the very least, a distinct lack of transparency in that relationship. And there was an absence of any awareness on the part of the Department of Finance, the Department of Health and Children and the Health Boards, that people's entitlements and human rights cannot arbitrarily be put to one side in the interest of saving money. With regard to mitigating circumstances, it has to be accepted that, as a result of the cut backs of the 1980s and the rationalisation of the hospital system, the Department could no longer deliver on the entitlements provided for in earlier legislation. In addition, the Department and, in turn, the health boards faced serious funding constraints. The question remains as to whether or not these difficulties could have been faced up to in ways which would not have involved maladministration.

The Report makes a series of recommendations which address the underlying issues in the investigation. New arrangements for the vetting of secondary legislation and the funding of entitlements are proposed, and the human rights of the elderly are also addressed.

In conclusion the Ombudsman is not convinced that his recommendations can, by themselves, deal adequately with what is fundamentally a constitutional matter. In the longer term, the relationship between the Oireachtas and the Executive, as well as the relationships within the executive, may need to be thought through afresh in the context of a wider programme of constitutional reform. There is already a momentum in support of such reform and the Ombudsman hopes that this report will make a contribution to the debate