It is most regrettable that the Department of Health failed to find a solution to the problems surrounding the Mobility Allowance Scheme and the Motorised Transport Grant Scheme and that the Government has now chosen to discontinue them. The illegality of these schemes has been known about for almost thirteen years.
In the case of the mobility allowance, the Ombudsman first drew the attention of the Department to the fact that the upper age limit was illegal in February 2009. This finding was subsequently conveyed formally to the Department in April 2011. The Department would in any case have been have been aware that the upper age limit was illegal from a much earlier date; ever since the enactment of the Equal Status Act 2000 the Department should have been aware of this defect in the scheme.
In 2008, the Department would have been aware that operating a scheme for people with disabilities, on the basis of criteria that discriminated unfairly within the overall category, was contrary to the Equal Status Acts. This consideration applies both to the mobility allowance and to the motorised transport grant. This conclusion was made clear in two decisions of an Equality Officer of the Equality Tribunal who was critical of the fact that, in considering a person's mobility, the scheme fails to take account of the extent to which "a person's intellectual and/or psychological health may restrict their mobility as effectively as some physical disabilities do". The Equality Officer found that this failure showed that the scheme "has not been updated to comply with the requirements set out in the Equal Status Acts (enacted in October 2000)...".
In October and November 2012 the Ombudsman, Emily O'Reilly, reported to the Dáil and Seanad in relation to these two schemes. Her reports followed on from complaints she had dealt with where, following investigation, she found that both schemes were operating on the basis of eligibility conditions which are in breach of the Equal Status Acts. The mobility allowance operates with an upper age limit which excludes applicants who are over 66 years; the motorised transport grant operates on the basis of a very narrow definition of disability which discriminates unfairly within the category of people with disabilities.
The Department accepted that the Ombudsman's findings in each case were correct and that the schemes were operating on the basis of illegalities. However, the Department said that it was unable to accept the Ombudsman's recommendations that each of these schemes should be brought into compliance with the law. The Department said that the costs of bringing the schemes into compliance with the law could not be borne in present circumstances. At a meeting of the Joint Oireachtas Committee for Public Service Oversight and Petitions on 6 February 2013 the Minister for Health, James Reilly T.D. announced that he intended to appoint an external consultant to review the transport needs of people with disabilities and to report back to him. It appeared then that the two schemes were to remain in operation pending the outcome of that review. Minister of State at the Department of Health, Kathleen Lynch T.D. told the Committee: "The comprehensive review required will be considered and if that can be done in a shorter period than six months we will be very happy. We need to emphasise again than this should not be an exercise that will drive fear into people."
The Ombudsman understands that a number of cases are pending before the Equality Tribunal in which the upper age limit for the mobility allowance is being challenged.
It is entirely regrettable that the Department's failure to tackle these matters in a timely, coherent and rational manner, has now imposed hardship on more than 5,000 people with disabilities who will find their transport needs compromised when the schemes are discontinued.
The Ombudsman hopes that the promised review of the transport needs of people with disabilities will proceed as speedily as possible and that new arrangements to meet these needs will be put in place as a matter of urgency.
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Fintan Butler
Senior Investigator
Office of the Ombudsman
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087 972 1138
fintan_butler@ombudsman.gov.ie
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