4.1 This investigation is not concerned with the decision to terminate the man's DA payment in October 2004. The termination of payment came about because his mother returned her son's DA book to the Department on the understanding that her son ceased to be entitled to DA by virtue of his placement in Northern Ireland. It is clear on the basis of the legislation governing DA that he was not entitled to payment of DA for the period of his placement with the voluntary organisation in Northern Ireland.
In the course of this investigation it became clear that, in practice, the Department does in certain circumstances pay DA (or its equivalent) to some applicants notwithstanding that they are not resident within the State. The family in this case, it would appear, were not aware that the Department operated such extra-statutory arrangements. The central issue in this investigation is the failure of the Department, prior to the Ombudsman's investigation, to rely on the existing extra-statutory arrangements as a basis for paying DA arrears.
4.2 It is unclear as to whether the Deciding Officer who rejected the application for DA arrears considered the option of paying them on an extra-statutory basis. The recipient's mother was not told by the Department that an extra-statutory arrangement existed; nor was she invited to argue the case that her son should have the benefit of an extra-statutory arrangement. Indeed, prior to the involvement of the Ombudsman's Office, it appears that the existence of extra-statutory arrangements was not mentioned to her nor to any of those supporting her. In his written response of October 2007 to the representations made by the Minister of State, the Minister for Social and Family Affairs explained that DA "is not payable for any period in respect of which the claimant is resident away from the State excepting where the person is pursuing second or third level courses of education outside the State under the Back to Education Allowance Scheme or while receiving medical treatment"(our emphasis). However, this letter did not make clear that the exceptions mentioned operate on the basis of an extra-statutory arrangement rather than on the basis of legislation. This is not an academic distinction: while the Department would be required to construe and apply a legislative provision strictly, it would have greater discretion in the application of an extra-statutory provision. Furthermore, in as much as the extra-statutory arrangements are Department-made, it is reasonable to expect that in their terms and in their application they will be fair and equitable.
4.3 In considering the relevance of the extra-statutory arrangements, two questions arise. The first is whether the Department acted reasonably in the manner in which it chose to interpret the term "medical treatment". The second question is whether, in any event, confining the advantage of the extra-statutory arrangements to "medical treatment" represents a fair and equitable approach.
4.4 As regards the first of these questions, it is necessary to decide what constitutes a reasonable and fair interpretation of the term "medical treatment". In the course of this investigation the Department gave its understanding of the term on three separate occasions. In a letter of 9 December 2008 the Department relied on the following definition: "professional treatment for an illness or injury or professional services administered by a physician or another professional provider for the treatment of an illness or accidental injury". The Department emphasised that the medical treatment in question must be treatment "not normally available within the State" and expressed the view that what the man received in Northern Ireland was "supported residential care" rather than medical treatment. In a subsequent letter, dated 6 February 2009, the Department commented that "the in-service care as provided in [-] case would not be deemed to be medical treatment for the purpose of the administrative provision".(see Appendix 1 (pdf 173kb) Finally, in a letter of 27 March 2009 , the Department elaborated further by expressing the view that, in the present context, the "phrase 'absent from the state for medical treatment' would have a meaning for the ordinary citizen that the treatment would be carried out by a medical doctor or similarly qualified person and that the provision of such treatment is not incidental but is the primary reason for absence from the State".
4.5 In fairness to the Department, the Ombudsman accepts that such a construction is one possible construction of the term 'absent from the state for medical treatment'. But it is not the only possible construction nor is it necessarily the fairest construction of the term. In its letter of 9 December 2008, the Department said it was relying on a definition (quoted above) of "medical care" provided by the Deputy Chief Medical Officer in the Department of Health and Children. Unfortunately, the Department did not quote the entirety of what the Deputy Chief Medical Officer actually said; omitted from the quotation was the following qualification: "The issue is probably: does it refer to care delivered by a doctor or care provided in a medical setting by a nurse, doctor, physio etc. In truth the definition will depend on the context and on who is using the term". Clearly, the term is an inexact one and, as the Deputy Chief Medical Officer in the Department of Health and Children observed, the context is all important.
4.6 It is striking that the Department appears not to have made any specific enquiries to establish the precise details of the service regime in the centre in Northern Ireland. While it is not necessary to deal with this here in any great detail, it is clear that the regime involved a mix of elements including supervision, medication, activation, psychological, nursing, and medical support as well as various therapeutic elements (physiotherapy and occupational therapy). This mix of elements constitutes "in-patient services" in the sense in which that term is used in the Health Act 1970. The relevance of this is that the service provided to hospital in-patients in Ireland, ranging from acute care to long-stay care and all of the stages in between, is "in-patient services"; while it is a term that includes acute, high-tech medical treatment, it also includes nursing home-type care. It appears the Department has singled out one element of the package which constitutes "in-patient services" and taken the view that this is the element - and only that element - which will have the benefit of the extra-statutory arrangement.
4.7 It may be inherent in administrative or extra-statutory arrangements that the terminology used will lack the precision of definition which usually is a feature of arrangements provided for in statute. This may have the advantage that administrators will have some flexibility in the application of the extra-statutory arrangements. One would then expect this flexibility to be used to the advantage of applicants rather than to their disadvantage. In this case, it appears that the Department relied on a term (medical treatment) which is capable of a wide range of meanings and then used discretion to apply the term in a restrictive way to the disadvantage of applicants. In short, therefore, the answer to the first question posed at Para. 4.3 above is that the Department did not act reasonably in the manner in which it chose to interpret the term "medical treatment" for the purposes of the extra-statutory arrangements which apply in the case of Disability Allowance. While this conclusion applies generally it has even greater force in the very particular, and difficult, circumstances of this case.
4.8 The second question posed at Para. 4.3 is whether confining the advantage of the extra-statutory arrangements to "medical treatment" represents a fair and equitable approach. The Department has expressed the view (letter to Ombudsman of 6 February 2009) that it is "not considered that confining the (extra-statutory) arrangements to medical treatment discriminates against someone who goes abroad for the purpose of care facilities". This is a remarkable position to have adopted given the fact that a person going abroad for medical treatment could benefit from the arrangements whereas a person going abroad "for the purposes of care facilities" could not.
4.9 The logic of the "medical treatment" extra-statutory arrangements would seem to be that a person who needs to go abroad for medical treatment, because that treatment cannot be provided within the State, should not be further disadvantaged by the loss of Disability Allowance. In principle, this is a fair and reasonable approach. However, people with illnesses or disabilities will occasionally need to go abroad for necessary services which for whatever reason are not being provided by the statutory service provider in this State. There is no rational basis for distinguishing between the needs and rights of a person sent abroad for acute hospital treatment (where that treatment cannot be provided within the State) and a person with an intellectual or psychiatric disability who is sent abroad because an appropriate residential place cannot be provided within the State. Leaving to one side the fact that the residential placement is likely to constitute "in-patient services", within the meaning of the Health Act 1970, it is a matter of fact that both cases involve the provision of services which are necessary and which, in the normal course, should be provided within the State by the relevant statutory authority.
4.10 The general point which must be made here is that when the Department devises administrative arrangements, with a view to mitigating the negative consequences of a strict application of the law, it must do so in a manner which avoids the creation of some further unfairness. The Ombudsman appreciates that the Department's action in establishing the extra-statutory arrangements was undoubtedly well intentioned. Nevertheless, as regards the second question posed at Para. 4.3, the answer must be that the Department's approach cannot be regarded as being fair and equitable. It may well be that, in its belated decision to give the claimant in this case the advantage of the extra-statutory arrangements, the Department now recognises that its original approach was neither reasonable nor equitable.