PEOPLE WILL HAVE up to five years to apply for compensation under the Government’s redress scheme for survivors of mother and baby homes and related institutions.
Cabinet signed off on the controversial €800 million scheme last Tuesday – despite mounting criticism over the exclusion of many survivors.
The Mother and Baby Institutions Payment Scheme Bill 2022, which was published today, states that the scheme shall cease to operate five years after it is established, or at an earlier date if specified by the minister in question.
The legislation is expected to pass through the Dáil and the Seanad before Christmas before opening to applications in the new year.
People can apply to receive compensation on their own behalf, or on behalf of a relative (living or deceased) once they can prove they or their relative stayed in an institution for a certain time period.
A Chief Deciding Officer (CDO) will be appointed to examine applications made under the scheme and determine if a person is eligible for redress or not. If an applicant is not satisfied with the CDO’s decision, they can seek a review within 60 days. An Appeals Officer will then review the case in question.
The Bill notes: “For the purposes of an appeal under this section, the appeals officer may require an applicant to provide, within such reasonable period as the appeals officer may specify (a) documentation or information, or (b) where the appeals officer considers it necessary to do so for the purposes of the review, information by affidavit, in relation to any matter that may be relevant to the determination of the appeal.”
The appeals office may determine that the CDO’s initial decision was correct, or they may seek to amend or overturn it.
In some cases, the CDO may refer a decision about an application to the High Court “on a point of law”. The Bill states that a decision by the High Court on the matter will “be final and conclusive”.
The Bill states that an applicant who “knowingly gives information” when applying for compensation under the scheme “which is false or misleading shall be guilty of an offence and shall be liable on summary conviction to a class A fine or to imprisonment for a term not exceeding six months, or to both”.
The document also notes that the Government may “provide financial support to applicants to facilitate their seeking the assistance of a legal practitioner in providing an affidavit for the purposes of an application, and where relevant, availing of independent legal advice for the purpose of their decision to accept or reject an offer”.
A review of the legislation will be carried out “as soon as possible after the second anniversary of the establishment day” and “as soon as possible after the cessation date”.
Refined payment bands
Details of the scheme were first announced last November and have remained largely unchanged since then – bar some changes to the payment bands.
Children’s Minister Roderic O’Gorman last week confirmed that the payment rates people are eligible to apply for had been “refined”.
Details of the new bands are set out in today’s document. For example, someone who spent between 180 and 360 days in an institution is entitled to €12,500, while people who spent 450 days are entitled to €15,000.
In a statement sent to survivors last Tuesday, O’Gorman said that “an important difference between the original rates approved by Government in November 2021 and the rates set out in the Bill today is that I have improved the overall approach by introducing more refined payment bands”.
These more refined bands, which are defined by reference to days and are supplemented by additional quarterly rate bands, will serve to benefit applicants, particularly where they would have been at the upper end of a given annual band under the original proposals. They will smooth and narrow the gap between payment amounts for applicants, and increase fairness and transparency.
“Another key improvement is that the Bill provides for periods of temporary absence of up to 180 days to be included when calculating the total duration of a person’s time in a relevant institution and their corresponding financial payment.”
Mothers who had to work while living in an institution can apply for a separate work-related payment which also increases based on the length of time in question.
All mothers who spent time in an institution are eligible for redress under the scheme, but people who spent time in an institution as a baby are not eligible for compensation unless they spent more than six months there.
There has been much criticism of this fact in recent months, with experts saying it does not take into consideration the lifelong impact of family separation and early trauma.
People who accept redress under the scheme will have to sign a legal waiver confirming they will not take future legal action against the State.
The Bill notes that a person who receives compensation under the scheme “shall not institute civil proceedings, and shall discontinue any other proceedings instituted by or on behalf of the applicant, against a public body, that arise out of the same, or substantially the same, circumstances as the circumstances to which the application concerned related”.
Calls to extend scheme
The Social Democrats are tabling a motion in the Dáil on Wednesday that seeks to extend the scheme to include all survivors, remove the legal waiver, and “give recognition for the different forms of abuse and human rights violations”.
The Irish Human Rights and Equality Commission today also called for the scheme to be extended.
The IHREC is calling for a “two-track approach” to the provision of redress, where survivors would have the option of applying to either track.
Each track would similarly include a payment for “the historic wrong of being resident” in a relevant institution for any length of time, “which impacted on the mother and child bond”.
Track One would include a modified version of the Government’s proposed time-based approach to payment, while Track Two would include an individualised assessment of harm.
In a statement, the IHREC said: “There is the potential for the Payment Scheme to adopt an adversarial approach to individualised assessment. To avoid this and to negate the possibility of re-traumatisation of survivors, it is important that survivors have the option of applying for an award under Track One.
However, alongside this, an option should also exist to pursue an individualised payment based on their informed choice. For some survivors, financial payments for specific harms experienced, alongside a general payment, would recognise the different forms and levels of harm that survivors experienced.
The IHREC also recommends the removal of the six-month length-of-stay requirement for a person who was resident as a child in a relevant institution to be eligible to apply to the scheme.
“The six-month requirement is not an indicator of whether a child suffered harm, such as from the forced separation of mother and child. We are also of the view that all survivors who were resident as a child in a relevant institution for any length of time should be eligible to apply to the scheme,” the statement notes.
There have been numerous calls, both nationally and internationally, for the redress scheme to be extended.
The United Nations Human Rights Committee and the Oireachtas Children’s Committee are among the high-profile groups calling for the scheme to be extended.
A number of survivors are considering legal action if they remain excluded from the scheme.
Several other UN human rights experts have criticised the Government’s response to the “systemic racism” faced by mixed-race people who passed through State and religious-run institutions between the 1940s and 1990s.
As revealed by The Journal last month, these experts believe the Government has not sufficiently addressed this issue, and that its planned redress scheme is inadequate.
‘Cost-saving’
Many survivors have been critical of the scheme, describing it as a “cost-saving exercise”.
Joe McManus, who spent his early years in St Patrick’s mother and baby institution in Dublin, believes many people are excluded from the new scheme, or only eligible for small amounts, in a bid to keep costs down.
Speaking to The Journal last week, McManus said the final report of the Commission of Investigation into Mother and Baby Homes, and its redress scheme, “is defined by those reports that went before it”.
The redress scheme set up following the Ryan Report – which detailed the endemic sexual and physical abuse in many industrials schools and reformatories – cost the State in the region of €1.5 billion.
McManus told us: “It’s just sad that the most important lesson learned by the State [after the Ryan Report] was not what could be done for the casualties of the process, but how they could limit the financial cost.
“I think the minister sees the metaphorical end in sight and wants to be remembered as a minister who got things done. No matter what the emotional cost.
“The more you read on the topic, the more you see the Department’s actions in trying to control expenditure.”
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