LAST UPDATE | 7 Feb 2023
THE ATTORNEY GENERAL has found that a strategy pursued by the Government to limit pay-outs to people entitled to nursing home care was “sound, accurate and appropriate”.
Attorney General Rossa Fanning has found that the legal advice provided to the State that oversaw the legal strategy was sound and that the public interest – including protecting the taxpayer – was the only interest of the State.
The full report, which was considered by Cabinet today, has since been published.
According to a Government spokesperson, both the Health Minister Stephen Donnelly and Social Protection Minister Heather Humphreys will examine the report and return within three months to decide on the next steps.
The strategy, which was first revealed by whistleblower Shane Corr, aimed to reduce payouts to people on medical cards – who could have been entitled to nursing home care provided by the State – by settling cases out of court.
Fanning found that the Department of Health had been “prudent” to settle cases out of court which were related to private nursing home care, rather than risking a test case.
According to a 2011 Department of Health report, up to 250,000 nursing home residents with medical cards were incorrectly charged for public nursing home care since 1976.
These incorrect charges were also applied to people who had to pay for private nursing home care due to a lack of availability of public nursing home care, with potential liabilities to the State worth €7 billion.
The total maximum liability to the State, including both public and private nursing home cases, totalled €12 billion.
Fanning says that that while the State had a viable defence against any test case, there were large numbers of potential claimants and if unsuccessful, there would be a significant maximum exposure to the State’s finances.
“Against that backdrop, the legal strategy was, understandably, one of caution. The consequences of the State losing a ‘test case’ would have been very serious,” Fanning says in the report.
However, a test case did not materialise and many of the cases taken were settled out of court.
Fanning adds that the legal strategy taken by the State “reflected a justifiable and reasonable approach to the claims brought against the State in relation to private nursing home charges”.
In summary, the risks to the State of contesting the litigation were such that it was prudent to settle with the plaintiffs.
“Despite these risks, it was never clear or obvious that the plaintiffs would be successful in their claims,” Fanning says.
He added that any suggestion that the legal strategy was secret “betrays significant unfamiliarity with the civil litigation process”.
The report also mentions issues with Disabled Persons’ Maintenance Allowance (DPMA), where 12,000 people were denied access to the payment after they entered residential care.
Fanning examined the legal authority of the then-Government to withhold payments but found that there was no existing legal duty to make retrospective payments.
He concluded that there were “good reasons” for the State to be concerned about defending cases if they were brought, particularly for the period between 1983 and 1996.
Taoiseach Leo Varadkar last week said that the State “didn’t have a leg to stand on” and that if cases had been brought forward, claimants would likely succeed.
Varadkar had previously said that the coverage of the controversy was “misrepresented” and related to residents in private nursing homes rather all public residents.
However, Varadkar said that the strategy employed by successive Governments has been a “sound policy approach”.
“I don’t specifically know if I was asked to sign off on it being continued but if I had been asked deputy, I would have,” Varadkar said, in response to Sinn Féin leader Mary Lou McDonald last week.
“This was a sound policy approach and a legitimate legal strategy by the government at the time.”
On the responsibility of individual Ministers for the strategy, Fanning said that – on a legal basis – it is redundant.
“A Minister of the Government is legally responsible for every act of his or her Department,” Fanning said.
“Thus, in legal terms, whether the relevant Minister was personally involved in deciding on the litigation strategy finally adopted or whether they were even aware of it is irrelevant. The Minister is legally responsible for the acts of the Department irrespective.
“Such an inquiry could only be of relevance if it were the case that the Department of Health acted unlawfully or unethically and there was in that context a legitimate political question as to the Minister’s personal knowledge of the matter.
“However, this is not the situation that pertains here. The advice provided by the Office and my predecessors offered a robust justification for the Department of Health to act in the manner that it did.”
Additional reporting by Christina Finn
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