THE ATTORNEY GENERAL has said there were “weaknesses” in the State’s stance on disability allowance payments to people in residential care. 

The report by Attorney General Rossa Fanning also said that the State’s legal strategy itself on nursing home payments charges was “appropriate”. 

Fanning’s report, which was requested by the Government last week, looked into two issues: a confidential legal strategy used by the State to attempt to limit payouts to nursing home residents over historic, unlawful charges, and the revelation that 12,000 vulnerable people in residential care were denied the Disabled Persons’ Maintenance Allowance (DPMA). 

Controversy over the State’s legal strategy on nursing home charges began after the Irish Mail reported a whistleblower’s claims of a secret government strategy to limit payouts to people on medical cards, who were incorrectly charged for public nursing home care, by settling cases out of court. 

The Government has since claimed that the issue was “misrepresented”, and requested that the Attorney General conduct a report to shed light on the reality of the issue. 

In the report Fanning has stated that he is “satisfied that that legal advice “furnished by the Office in respect of the litigation concerning charges levied for private nursing home care was sound, accurate, and appropriate”. 

Fanning further said that he is aware that the State has been reported to have had a “secret litigation strategy” in newspaper articles, but he refuted the suggestion that this is in anyway “sinister” or abnormal, as in every court case the parties involved have a legal strategy and that each side “keeps that strategy to itself”. 

“Any suggestion that a “secret litigation strategy”, without more, is in some way improper betrays significant unfamiliarity with the civil litigation process”, Fanning further stated. 

He also said that it is “surprising” that the State has been criticised for settling cases outside of court, and suggested that it is the opposite of “dragging” plaintiffs through court – which the state is “sometimes criticised for”. 

Disability allowance

However, Fanning did find issue with the State’s legal strategy over non-payments of the Disabled Persons’ Maintenance Allowance (DMPA). 

Fanning said that he understood that the policy intent behind the non-payment of DPMA and Disability Allowance to people in State residential care was that that there was a “clear and logical distinction between the financial needs of those living in the community in their own homes and those living in a State-provided residential care environment”.

He said that this policy was a “reasonable one” with a “rational basis”, and stated that had the policy been given effect by primary legislation, “it would have been a legitimate exercise of policy making function”. 

Fanning concluded that the State was incentivised to settle proceedings in 2008, and a further claim that was brought forward in 2014. 

He said there was a “significant legal weakness” associated with the State’s legal position.

However, he clarified that the State had no “positive legal obligation to provide redress”, and that any claims that may now be brought against the State are “very historic indeed”, if not “statute barred”. 

Last week, Taoiseach Leo Varadkar said that the “State didn’t have a leg to stand on” following a decision not to pay the disability allowances, after the situation was reported on in RTÉ Investigates.

According to the report, a secret Cabinet memo said that the State could be liable for claims of up to €700 million if cases were taken.

Speaking during Leaders’ Questions, Varadkar said that this particular case was different from the legal strategy around nursing homes saying that it was “different in substance” due to different legal advice provided.

He added that while the Government had a responsibility to “do what’s right”, it also had a responsibility to protect the taxpayer and that a balance had to be struck between the past and future issues.