Investigation Report

Published  November 2012

Complainant: 

Mr Noel Ryan on behalf of his son, Michael Ryan

Public Bodies:

The Department of Health

Health Service Executive

 

An Investigation under section 4 of the Ombudsman Act 1980
Office of the Ombudsman
November 2012

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Contents

  • AO                  Appeals Officer
  • AMO              Area Medical Officer
  • DDMBA         Disabled Drivers Medical Board of Appeal
  • HSE                Health Service Executive
  • MTG               Motorised Transport Grant
  • PMC               Primary Medical Certificate
  • SAMO            Senior Area Medical Officer

Ombudsman Investigation- Motorised Transport Grant Scheme

Complaint against the Health Service Executive and against the Department of Health

Summary

This was an Investigation by the Ombudsman of a complaint about the refusal of the HealthService Executive (HSE) to award a Motorised Transport Grant (MTG) to a man with a profound intellectual disability. The investigation looked at the actions of the HSE, which decided the application, as well as those of the Department of Health (the Department) which has overall responsibility for the MTG scheme. The HSE refused the application on the grounds that the applicant did not meet the medical criteria for eligibility. Following a detailed investigation, the Ombudsman upheld the complaint. She found that the interpretation of the medical criteria for eligibility used by the HSE was unacceptably restrictive and contrary to Equal Status legislation. She also found that the Department of Health had failed to properly oversee the scheme.

The Case

In July 2010 the father of Mr Ryan (not his real name) complained to the Ombudsman about the refusal of his application for a MTG for his son, a young Donegal man. The HSE’s refusal was on the basis that Mr. Ryan did not meet the relevant medical criteria. The applicant’s father believed that his son's condition was such that he did meet the medical criterion, which is stated in the scheme to be a "severe disability". He also contended that his son met the other eligibility criteria which relate to a means test, age, and the need to have transport.

The MTG is a non-statutory scheme in operation since 1968. It was set up by theDepartment to assist severely disabled people with grants to acquire or adapt a car in order to retain employment. The maximum grant payable is €5,020. The scheme also has an "exceptional circumstances" clause which allows for grant aid to severely disabled people with transport difficulties who are not in employment but who would otherwise suffer socialisolation.

The HSE

The investigation looked in detail at the HSE's handling of Mr. Ryan's case. The HSE acknowledged that Mr. Ryan has a profound intellectual disability in addition to other,severely debilitating conditions. The HSE also accepted that he cannot walk independently as he would pose a risk of injury to himself and others. The HSE's position was that, although severely disabled, he is physically able to walk and this was seen as the determining factor in refusing him the grant. The Medical Officers in Donegal had undertaken a review of the medical eligibility requirements between 2009 and 2011 which resulted in the current interpretation of the term "severe disability" for the scheme. InDonegal (and possibly in other areas also) “severe disability", in the context of the MTG, isunderstood to refer to a disability involving a severe and permanent restriction of movement in the lower limbs, or where walking would cause severe complications. In this view, there is no scope for having regard to the consequences for mobility of psychological or intellectual disabilities.

The Ombudsman found that this approach is unacceptably restrictive. It is contrary to the Equal Status Acts which prohibit discrimination not only against persons with disabilities when compared to those with none but also against persons with disabilities when compared with others with different disabilities. The approach also flies in the face of the very explicit 2009 finding of an Equality Officer, who, in dealing with a similar scheme, was very critical of the “failure to assess the intellectual and/or psychological capacity of theapplicant in relation to their mobility”. The Officer recommended to the HSE and to theDepartment at that time that they should “examine the various allowance schemesgoverning people with disabilities to ensure that they and the associated assessmentprocesses comply with the requirements of the Equal Status Acts”. The Ombudsman found no evidence that any such review had taken place.

The Department of Health

Since its inception in 1968 the MTG has remained an administrative scheme without a statutory basis. The Department was joined to this investigation as, although it has no inputinto the decisions made on individual cases, it has overall responsibility for the scheme. The Department took the view that it is the job of the HSE to define what is meant by "severe disability". The Department told the Ombudsman during the course of this investigation that policy proposals relating to the scheme have been formulated and are awaiting decision by the Minister for Health.

The Ombudsman examined the Department's role and concluded that it is reasonable to assume that it is the Department which has legal responsibility for the MTG scheme. She criticised the Department for failing to oversee the implementation by the HSE of the scheme in general and for neglecting to provide adequate and clear guidance on the interpretation of its terms and, in particular, the term "severe disability".

The HSE Appeals Process

The Ombudsman's investigation also scrutinised the actions of the HSE Appeals Office as ithad made the final decision to refuse the grant in this case. The Appeals Officer involvedwas of the view that an Appeals Officer could not interfere with a clinician’s medical opinion. The Ombudsman found this position to be inconsistent with an appeal system acting with independence and authority.

Recommendations

The Ombudsman made a number of recommendations based on her investigation findings. She recommended that the HSE review Mr Ryan's MTG application in the light of her report; that all MTG applications refused on the basis of the revised approach taken by the Donegal Medical Officers since 2009 also be reviewed and that the HSE review its appeal arrangements under the MTG scheme with a view to ensuring all Appeals Officers have the freedom to exercise authority and independence in carrying out their functions.

The Ombudsman recommended to theDepartment that it revise the terms of the MTG scheme, to provide explicitly that the term "severe disability" be understood in the light of the findings of her investigation and in the light of the 2009 comments of the Equality Officer on the need to have regard to the broad definition of disability in the Equal StatusActs. She specified time frames for the implementation of each recommendation.

The Department of Health said that it was not in a position to amend the circular relating tothe MTG as this would have serious financial implications. The Department accepted that significant issues were raised by the investigation and it is working on options to bring all schemes into line with the Equal Status Acts.

The HSE accepted the recommendations made to it and is implementing them without delay.

This is a report of an Investigation by the Ombudsman into a complaint which arose from the refusal of the Health Service Executive (HSE) to award a Motorised Transport Grant (MTG) to a young Donegal man, Michael Ryan, whose grant application was made in February 2010. The HSE refused the application on the grounds that Mr. Ryan did not meet the medical criteria for eligibility. Subsequently, a HSE Appeals Officer upheld this decision.

Following investigation, detailed in this report, the Ombudsman upheld the complaint.

The investigation looked at the actions of the HSE, which decided Mr Ryan’s application, as well as those of the Department of Health which has overall responsibility for the MTG scheme.

The report sets out the responses of the Department and of the HSE to a draft of the report (both of which are at Appendix 4).  While the HSE supplied a detailed commentary on the draft, the Department noted its findings but did not comment on the content. The HSE Appeals Officer was also given an opportunity to comment on an earlier draft of the report and availed of that opportunity.

1. An outline of the Complaint

In July 2010 Mr. Ryan’s father complained to the Ombudsman about the refusal, by the HSE, of his application for a MTG for his son. The HSE’s refusal of the grant was on the basis that Mr. Ryan did not meet the relevant medical criteria.  The applicant’s father believed that his son's condition was such that he did meet the medical criteria.  Furthermore, he contended that his son met the other eligibility criteria which relate to income, age, and the need to have transport.  Mr. Ryan (Senior) drew attention, in particular, to the fact that, while the MTG scheme is aimed primarily at helping people retain employment, it may also be awarded in exceptional circumstances to "...  a person with a severe disability who lives in very isolated circumstances", though in such cases, the person's “disability must prevent them from using public transport and they must have severe transport difficulties".  Mr. Ryan (Senior) contended that his son should qualify on the basis of exceptional circumstances.

A Brief History of the Motorised Transport Grant

The MTG scheme is a non-statutory scheme established in 1968 under a circular issued by the Department of Health (the Department). The main consideration in establishing this scheme was to provide a grant to persons with disabilities for the purchase/adaptation of a car in order to obtain employment.  Other "less compelling" considerations mentioned in the initial circular were that “it would enable the disabled person to reside at home or in a hostel rather than in an institution, or if the home is very isolated that transport wouldenable the disabled to maintain social contacts".  Therefore, right from the inception of the scheme, it was recognised that the grant could be awarded in cases where disabled persons needed transport in order to maintain social contacts.

In February 1974 the Department issued a revised circular.  In it, the Department urged the health boards to “take a sympathetic approach to the making of a grant to a personwho has not already taken up employment but who would be able to do so if transport difficulties were overcome.”  A significant change was that the scheme was now to be extended to facilitate people with disabilities in self-employment. Also, the circular noted that hitherto in some cases grants had been paid to a person with a disability, qualified to drive, "living in isolated circumstances and who has serious transport difficulties...even though the matter of holding a job did not arise" and encouraged health boards to consider such cases more generally. (Both the 1968 and 1974 circulars are somewhat vague as to whether grants should actually be paid in such cases.)  Finally, the circular urges the health boards to give “sympathetic consideration” to situations in which a “severely handicapped person” is unable to drive and must be driven to and from work; in such cases, a grant might be paid on the understanding that the car would be driven by another person.

In March 1974 the Department wrote to the health boards devolving responsibility to Community Care Programme Managers "to judge cases on their merits within the terms of thescheme as laid down in Circular No. 7/68 and modified in ...February 1974 and within budgetary limits".  This letter lists five criteria as the “chief indications” for when a grant should be paid; these criteria appear to exclude (a) people living in isolated circumstances who cannot work and (b) people who have employment but are incapable of driving.

The MTG scheme was not modified, apart from changes to the grant rates, for many years thereafter.

In July 2002 the Department issued a more comprehensive circular to replace those of 1968 and 1974. On this occasion the Department specified, under the heading “Medical Criteria”, that the applicant must have a “severe disability” and that this disability “must impede him/her from using public transport”.  For the first time, a lower age limit (17 years) and an upper age limit (65 years) were prescribed.

This was notwithstanding the enactment of the Equal Status Act 2000 which prohibited discrimination on the grounds of age. In 2008 the Department accepted that the upper age provision in the MTG scheme was in contravention of the Equal Status Act and it dropped the upper age limit. The lower age limit of 17 years is unremarkable given the purposes of the scheme. 

Also, for the first time, a detailed means test was included. In this circular, it was made clear that the grant could be paid either to retain employment or to obtain employment. Also, an explicit "exceptional circumstances" clause was included which said:  "The grant may also be considered in exceptional circumstances for a person with a severe disability,subject to the above age limits, who lives in a very remote location and whose disability impedes him/her from using public transport".

Further circulars were issued by the Department in March 2007 and July 2008. The 2007 circular confined eligibility (other than under the heading of “exceptional circumstances) to circumstances in which the grant would enable a person retain employment; this was at odds with the earlier circulars which recognised that the grant could support both the obtaining and the retaining of employment. Some changes were made also to the wording of the “exceptional circumstances” provision. Another change of some significance was that the applicant’s disability was no longer required to be such as to “impede him/her from using public transport”, although a similar provision was now to be applied under the ”exceptional circumstances” clause.

The July 2008 circular, which is still in force, was issued following the Department’s acceptance that the imposition of an upper age limit contravened the Equal Status Act 2000. Other than deleting the upper age limit, the July 2008 circular is in all other respects the same as that issued in March 2007. 

Copies of all of the Department’s circulars pertaining to Motorised Transport Grant are contained in Appendix 3 of this Report.


2. The Preliminary Examination and Commencement of the Investigation

2.1. Preliminary Examination

The Ombudsman’s preliminary examination involved detailed scrutiny of the relevant HSE files as well as an exchange of correspondence and other engagement with the Health Service Executive. Following the preliminary examination, the Ombudsman took the view that Mr. Ryan had been affected adversely by the decision of the HSE and that this decision might have been taken on the basis of one or more of the grounds of maladministration identified at section 4(2)(b) of the Ombudsman Act 1980. Accordingly, the Ombudsman decided to investigate the complaint under section 4 of the Ombudsman Act 1980. Because of its overall responsibility for the MTG scheme, and the fact that the HSE’s actions were taken in purported compliance with that scheme, the Ombudsman decided to join the Department of Health to the investigation.

On 6 December 2011 the Ombudsman notified both the HSE and the Department of the investigation. (The Statement of Complaint sent to both parties is at Appendix 1.)  In notifying the Department that it was being joined to the complaint, the Ombudsman’s Office explained that, as “the Motorised Transport Grant scheme is administered under the direction of Circulars issued by the Department of Health, the investigation will examine the Department's role in overseeing the operation of the scheme and providing clear rules.” As the MTG scheme is an administrative scheme under the control and direction of the Department of Health, it was necessary to include that Department's actions relating to the scheme in general in the investigation in order to (1) explain the context in which the specific case arose and (2) explore any general issues which might arise during the course of the investigation of the specific complaint.

2.2. The Conduct of the Investigation

The Ombudsman looked, in particular, at the following matters in the course of her investigation:

  1. The procedures followed by the medical officers in forming their views on the medical eligibility of the applicant.
  2. The actions of the Appeals Officer in making her decision to uphold the original decision.
  3. The legal and administrative context in which the scheme is operated by the HSE and the Department of Health.

The responses of the Department and of the HSE to the notification of the investigation are at Appendix 2.

Both the Department and the HSE provided the Ombudsman with relevant material covering both the particular case and the MTG scheme more generally. All relevant submissions, reports, records and files were examined by the Ombudsman’s Office.

The following people were either interviewed or supplied relevant information in the course of the investigation:   

  • Mr. Ryan (Senior)
  • Dr. Nadia Ghoniem, HSE Area Medical Officer
  • Dr. Lynne McBride, HSE Senior Area Medical Officer
  • Ms. Eithne O’Sullivan, HSE Appeals Officer
  • Dr. Cate Hartigan, HSE Assistant National Director, Disability Services
  • Ms Bairbre Nic Aongusa, (former) Director, Office for Disability and Mental Health, Department of Health
  • Dr Jacinta Morgan, Chairperson, Disabled Drivers Medical Board of Appeal.

 

Administration of the Motorised Transport Grant

The MTG scheme is administered by the HSE on the basis of the 2008 circular issued by the Department of Health. Following an application, the usual first step is to apply the means test. Where the applicant’s means exceed the specified level the application will be refused. If the means are below the specified level, the application will then be considered to see if the applicant meets the medical criteria of suffering from a severe disability. This is assessed by an Area Medical Officer (AMO) of the HSE who will give an opinion on the matter. Usually, the AMO opinion will be considered by the Senior Area Medical Officer (SAMO). Assuming the AMO opinion is endorsed by the SAMO, this opinion is then communicated to the "authorising officer" who will decide on the application.

Where the applicant is found to have a severe disability, but is not seeking the grant to retain employment, it is necessary to consider whether the exceptional circumstances clause will apply, that is, whether the applicant lives in very isolated circumstances, whether the disability prevents the use of public transport and whether the applicant has serious transport difficulties. Information on these issues may be collected by the AMO and/or by the local Community Welfare Officer who will have been involved in the means test. Again, the ultimate decision on the application is taken by the "authorising officer". Where the application is refused, there is a right of appeal to a HSE Appeals Officer.


3. The Facts of the Case

An important factor in this investigation is that Mr. Ryan was found, on appeal, to be entitled to a Primary Medical Certificate (PMC).  In Co. Donegal the HSE uses a common medical assessment to cover both MTG and PMC applications. The facts set out below are taken from the HSE’s files on Mr. Ryan’s MTG and PMC applications.

3.1. Applications and Assessments

Mr. Ryan suffers from a profound intellectual disability, autism and grand mal epilepsy.  He has no speech, does not respond to commands and is doubly incontinent. He is hyperactive.  He cannot walk independently in public places as he would pose a risk of injury to himself and others.  These facts, documented on its file, are not disputed by the Health Service Executive.

Michael Ryan was 23 years old when his parents applied for the MTG on his behalf on 21 February 2010.  They had already, on 19 January 2010, applied on his behalf to the HSE for a Primary Medical Certificate.   As the HSE Donegal uses the one form for the provision of medical details in the case of both PMC and MTG applications, the medical details provided by the Ryans for PMC purposes were used also to determine the subsequent MTG application.  In fact, the HSE’s medical assessment of Mr. Ryan was done on 8 February 2010, two weeks prior to the making of the MTG application. It is the practice in Donegal to obtain information relating to the eligibility requirements of both the PMC and MTG schemes at the same medical assessment.The outcome of that assessment was that Mr. Ryan was found not to be medically eligible for the PMC and, in principle, not medically eligible for the Motorised Transport Grant.  Thus, when his parents applied on his behalf on 21 February 2010 for the MTG, Mr. Ryan had in principle already been found ineligible for that grant.

In their application, the Ryans described their son as “mentally disabled and autistic ... epileptic and would be hyperactive”.  In terms of how this affected his mobility, his parents said that their son “would be unable to walk at all alone for a number of reasons. Firstly due to medication his balance would be unstable.  Also his inability to sense danger prevents him from being allowed to walk alone.”  They said that, while their son does not use a stick when walking, “whoever is with him would restrain and support him”.

Primary Medical Certificate (PMC): 

This is a certificate issued by the HSE which certifies that a person is a severely disabled and permanently disabled person for the purposes of the Disabled Drivers and Disabled Passengers Regulations 1994. The benefits of this certificate include refunds of Vehicle Registration Tax, VAT and Excise Duty when buying a car.

To qualify for a PMC, the applicant will be regarded as severly and permanently disabled where he/she meets one of the following tests:

  1. Be wholly or almost wholly without the use of both legs.
  2. Be wholly without the use of one of their legs and almost wholly without the use of the other leg such that they are severely restricted as to movement of their lower limbs.
  3. Be without both hands or without both arms.
  4. Be without one or both legs.
  5. Be wholly or almost wholly without the use of both hands or arms and wholly or almost wholly without the use of one leg.
  6. Have the medical condition of dwarfism and have serious difficulties of movement of the lower limbs.

Mr. Ryan’s parents said he needed a car to bring him to and from a day care centre, respite care, medical appointments and “[for] pleasure as he enjoys getting out”. In answer to a question on whether the car needed to be adapted, they said that as their son is “very active and often in an uncontrolled manner a stronger than normal seat and one which would make access to the car easier would be beneficial”.  His parents also commented that getting their son in and out of a car “can be difficult as he is uncooperative and his legs have to be lifted into the car. It is proving to be more of a strain as Michael gets older”.

The medical assessment of 8 February 2010 was conducted by a AMO of the Health Service Executive.  In her assessment report, the AMO recorded that Mr. Ryan was very hyperactive and “running and jumping in clinic room".  As regards the level of mobility, she recorded that Mr. Ryan could walk more than 50 yards “without aid” (See Note 1 below).

Under the heading “Relevant clinical history related to disability/mobility assessment”, the AMO recorded that Mr. Ryan needs total assistance in bathing and dressing, that he is incontinent, has no speech and does not respond to commands. The AMO noted, under the heading “Other information relevant to the allowance applied for”, that his parents were seeking to have his car seat changed for a more suitable one with a sufficient restraint “to keep him stay still” in the car.  The AMO also noted under this heading that Mr. Ryan  ”can’t use public transport because of his behaviour in public and he can’t travel on his own”.   The AMO had available on the form a choice of five options ranging from “Total assistance” to “None required”.   Despite the level of disability noted above,the AMO recorded her view that Mr. Ryan was able to use public transport with “close supervision only".  The option “Close supervision only” was option number four of the five options available.

Following this assessment, the opinion expressed by the AMO was that Mr. Ryan did not meet the medical criteria either for the MTG or for the Primary Medical Certificate.  The AMO assessment was endorsed by her Senior Area Medical Officer.  On 8 March 2010 the HSE informed Mr. Ryan that he did not qualify for the PMC as “your disability does not come within the categories specified”.  On 8 April 2010 the HSE informed him that his MTG application had been refused as “your medical condition does not satisfy the criteria of the Motorised Transport Grant scheme”.  In both instances, he was told of his right to appeal the refusal.

The HSE file shows that, following the means test, Mr. Ryan was found to be potentially eligible for a MTG payment of €5,020.  However, this payment was subject to his satisfying the other conditions of the scheme.

3.2.   Appeals

Mr. Ryan’s parents appealed both the MTG and PMC refusals on his behalf.  The PMC appeal was successful following his assessment in Dublin by the Disabled Drivers Medical Board of Appeal (DDMBA) on 29 April 2010 (see Note 2 below).

The MTG appeal was lodged on 5 May 2010 - shortly after the success of the PMC appeal.  The MTG appeal included a letter from Mr. Ryan’s GP, two letters from his day centre and a copy of the Certificate from the Disabled Driver's Medical Board of Appeal.  The GP certified that Mr. Ryan "is severely mentally handicapped with features of Autism and also suffers from Grand Mal epilepsy. He is doubly incontinent...".  A staff nurse at the day centre stated that Mr. Ryan "requires 24 hour care and will always require this."  She noted that he is fully mobile but that his mobility is "extreme and classified as hyperactive. ...he has no awareness of safety for himself or others, this poses great risks when [he] can run (despite being held) in the path of traffic or other environmental dangers".  A separate letter from the day centre stated that Mr. Ryan was attending the centre and noted that the “HSE W does not provide transport and therefore his parents are required to transport [him] in and out of the Day Centre daily”.

The copy of the PMC, provided in support of the appeal on the MTG application, stated that Mr. Ryan is " a severely and permanently disabled person who meets one or more of the medical criteria set out in the Disabled Drivers and Disabled Passengers (Tax Concessions) Regulations, 1994" and described his disablement as "... wholly or almost wholly without the use of both legs."

In fact the HSE had already been informed by the DDMBA that Mr. Ryan had been successful in his PMC appeal.  The Chairperson of the DDMBA wrote to the relevant SAMO on 29 April 2010 sending her a copy of the actual certificate as well as a copy of the DDMBA assessment notes, made when Mr. Ryan attended for the appeal.  The Chairperson’s notes included the following: "Epileptic, 2- weekly grand-mal seizures- would injure himself. Never walks alone- requires one with him at all times- distractible/very unsafe.  Dangerous walker.  Meets criteria A." (See Note 3 below) One of the other DDMBA members included the comment: “Can not walk on his own”.  The assessment was co-signed by the three clinicians sitting on the Disabled Driver's Medical Board of Appeal.

On 19 May 2010 (following receipt of the MTG appeal) the SAMO wrote to the DDMBA Chairperson asking to discuss its decision in Mr. Ryan’s case.  The SAMO observed that “we do assess quite a few young adults with Autism/Learning Disability for mobility allowances ... [we] may need to review the criteria we are using. (in the past tended, on balance, only to grant PMC where Autism/severe LD rendered the adult virtually wheel chair bound, although they retained the use of their lower limbs).”  There is a file note to show that the Chairperson rang the SAMO on 1 June 2010 but the content of their discussion is not recorded. The SAMO made no comment on the case when passing it to the Appeals Officer.

On 9 June the HSE Appeals Office recorded its decision not to uphold the appeal against the refusal of the MTG on the grounds that the applicant "does not meet the medical criteria as assessed by medical officers of the HSE."  The decision letter to the applicant, confusingly, is dated 2 June 2010.   Mr. Ryan’s father complained to the Office of the Ombudsman on 7 July 2010.

 

Note 1

By “without aid”, the AMO was recording that the applicant could walk without the aid of a stick, walking frame etc. Aid given by another person to the applicant to assist his mobility was excluded from consideration.

Note 2

The DDMBA is a statutory independent appeal board comprising three medical doctors, at least one of whom is a consultant, which sits for this purpose at the National Rehabilitation Hospital in Dublin.

Note 3

This is that the PMC applicant is “wholly or almost wholly without the use of both legs.”

4. Some Issues from the HSE File

In the course of the Ombudsman’s Examination of the HSE file, some issues emerged:

  • The HSE in Donegal referred to the MTG scheme as based on a circular dated March 2009.  In fact, the most recent MTG circular to issue from the Department of Health is from July 2008. While the March 2009 document is in significant respects the same as the July 2008 circular, its existence means that some staff of the HSE may not be acting on the basis of the correct circular (see note 1 below). The Department has, at the time of writing this report, told the HSE that MTG circulars can be issued only by the Department.
  • The HSE told the Ombudsman that it provides transport for clients attending the day centre attended by Mr. Ryan, that this transport was available to him, but that his parents had opted not to use it.  The Ombudsman accepted this information at the time and informed the Ryans that, in these circumstances, she would not pursue their complaint further (see note 2 below). It then transpired that the information was incorrect.  The HSE had never made any transport available to Mr. Ryan.  The only transport in his locality is SITT (Seirbhís Iompair Tuaithe Teoranta), a rural transport initiative which receives funding from the HSE, but which is not at all suitable for Mr. Ryan for attending the day centre.  In the words of one of the staff of the centre, "...because of his high needs he would pose a huge risk on SITT transport for himself and others".  The HSE apologised for the error, which appeared to have arisen from a failure to check the facts at local level.
  • The SAMO, in an email reply to the Ombudsman’s Office, explaining how the refusal decision was reached in the case, said: "We apply a strict interpretation of the guidelines available to us, and in the case of the [MTG], we ally the assessment along the medical criteria outlined in the Primary Medical Certificate. These criteria have been accepted by the HSE as a list of conditions that describe "severe and permanent" disability, for the purposes of the 1994 regulations of Section 92 of the 1989 Finance Act".  This was confusing on two counts, firstly, because the PMC is an entirely separate scheme from the MTG with a different purpose (tax concessions) and with narrow, prescriptive criteria and, secondly, in this particular case the applicant had, in fact, been awarded a PMC on appeal.

 

5. The operation of MTG by the HSE in Co. Donegal

In its submission to the Ombudsman (at Appendix 2) the HSE explains that a review of the operation of the MTG scheme in Co. Donegal was begun in 2009 and continued into subsequent years.  The circumstances prompting the review were:

  • a significant increase in the number of applications;
  • the removal of the upper age limit of 65 years in 2009;
  • the publication of the national document "Towards excellence in Clinical Governance – A Framework for integrated Quality, Safety and Risk Management across HSE Providers"; and
  • necessary cost containment measures.


The HSE in Donegal obtained information (through "informal communication") which indicated that "other regions [of the HSE] aligned their assessments much more strictly with the medical criteria of the Primary Medical Certificate, particularly on the Eastern side of the country".  The submission goes on to say that, "it became apparent that Donegal had an excessive number of applications, and awarded a disproportionate number of MTGs, when compared to other areas of the country".   This view, according to the HSE, was supported by statistics obtained for other areas of the country for a six month period in 2010. This led to a review in Co. Donegal of the medical criteria for the grant. In order to help in standardising assessments, an algorithm (see note 3 below) was developed for use by the medical officers when assessing "severe disability" for MTG applications. However, the Ombudsman understands that this algorithm is in use in Co. Donegal only and is not used in the rest of the country.

The term "severe disability”, in the context of the MTG in Co. Donegal, is now taken to mean a severe disability which results in permanent, serious restriction of movement of lower limbs or where walking would cause severe complications or where the person is so disabled as to meet the PMC medical criteria.  Other forms of disability (for example, sensory disability, learning disability) are discounted as not coming within this ambit unless the person involved also has a co-morbidity which affects mobility (see note 4 below). There is a more detailed discussion of these issues later in this report.

The current HSE Assistant National Director for Disability Services, when interviewed for this investigation, expressed the view that the medical criteria for the PMC are, in fact, used as a guideline by Medical Officers around the country when assessing eligibility for the MTG scheme.  However, she could not confirm that every HSE area took the same approach.

It is clear from information provided in response to a Dáil Question (see table hereunder) that there has been a very marked increase in the level of rejections of MTG applications in Co. Donegal since 2010. Between 2007 and 2011 the success rate of applications dropped from 75% to 25 per cent (see note 5 below).

Year Applications Approved Applications Refused
2007 145     (75%) 47     (25%)
2008 179     (72%) 67     (28%)
2009 143     (62%) 86     (38%)
2010 192     (63%) 113     (37%)
2011 (to end October 2011) 41     (25%) 125     (75%)

Data supplied by the HSE in response to a PQ -- October 2011.

The available statistics indicate that there may be social and geographical factors influencing the large number of MTG applications in the Donegal area (see note 6 below):

  • In 2006, there were 12,214 persons with a disability living in private households in Co. Donegal.  While not all of these would have a severe disability, it is nevertheless a relatively high number given the population of the county (147,264 in 2006).
  • Donegal is the fourth largest county in the State in terms of landmass and has one of the highest percentages of its population (75% or 110,679) living in rural areas compared to the State average of 39.3 per cent.
  • The most popular mode of transport to work in Co Donegal in 2006 was by car (approximately 67% of the working population or 37,085 people).  Only 1.8% of the working population, or 1,015 people, used public transport to get to work.
  • There are 37,004 households located in the Aggregate Rural Areas within Co. Donegal of which 16.4% or 6,055 households do not have a car. The corresponding figure for the State as a whole is 11.4 per cent.


There appears to be a view within the HSE Donegal that, relative to other parts of the country, it has too many MTG recipients.   In this context, it is worth noting that, for the three year period 2009-2011 there were, according to the HSE, 946 MTG awards made nationally; of these 382 (40%) were from Co. Donegal.

There is no obvious basis for believing that HSE Donegal was not operating the MTG appropriately simply because its applications numbers were higher than in other parts of the country. Rather, the low number of applications elsewhere raises questions as to whether a scheme with such a low uptake is reaching its target groups. This Office has not carried out an analysis of how each HSE area has approached the administration of the scheme. Neither has the Department, nor the HSE nationally, conducted such an analysis.

6. The Decision to Refuse

The current circular setting out the eligibility conditions for the MTG is at Appendix 3.  The sole medical condition is that the applicant must be “a person with a severe disability”. The circular does not elaborate on what constitutes a “disability” nor on what constitutes a “severe disability”. No directions or guidance have been issued, either by the Department of Health or by the HSE nationally, to guide decision makers on the interpretation of these terms. An applicant who is found by the HSE not to be “a person with a severe disability” cannot qualify for the grant.

The HSE’s medical officers accepted that Mr. Ryan has a profound learning disability, that he suffers grand-mal epilepsy and that he cannot walk unaccompanied as he would pose a risk to himself and others. However, they appear to have been taking the view that, in the context of the MTG, in order to meet the test of  “severe disability” the applicant must not be physically mobile. As it was clear that Mr. Ryan was able to walk, and thus physically mobile, he was not found eligible.

Under the algorithm developed by the HSE in Co. Donegal, a MTG applicant will meet the medical eligibility where the answer is YES to any one of these questions:

  1. “Does the applicant have a severe disability that affects their mobility sufficient that they meet the criteria for PMC ?”
  2. “Has the applicant had a CVA/brain injury/CNS condition/chronic arthropathy/RTA causing severe disability resulting in serious restrictions of movement of the lower limbs?”
  3. “Does the applicant have a cardiovascular disease to such an extent that they have severe mobility restrictions and limitations, to include persons with post heart surgery restrictions or persons awaiting heart surgery, persons with lung and respiratory difficulties where walking would cause severe complications?”

Unless YES is the answer to one of these three questions, a Co. Donegal applicant will not be found to satisfy the medical test for the Motorised Transport Grant.

When the SAMO was interviewed for the purposes of this investigation, she elaborated on the question of whether the PMC medical criteria will always be sufficient to qualify for the Motorised Transport Grant.  Taking the example of dwarfism, which apparently will qualify a person for a PMC, the SAMO said that this condition by itself would not satisfy the MTG medical test. This, according to the SAMO, is because dwarfism does not affect mobility; in using the algorithm the emphasis is on functional mobility.  The SAMO said that this was appropriate in determining what severe disability means in the context of a scheme which seeks to improve a person's ability to travel, through the provision of transport.

The SAMO commented that this approach (functional mobility) mirrors that underpinning the Disabled Drivers Parking Permit (see note 7 below) scheme. To qualify for the permit, the practical test applied is that an applicant must not be able to walk 50 yards except with the support of a crutch. According to the SAMO, this test is used as an assessment tool in MTG applications. In the case of Mr. Ryan, because he was capable of walking 50 yards without the aid of a crutch, he was seen as ineligible for the Motorised Transport Grant. 

The SAMO made it clear that in assessing Mr. Ryan for the MTG (and for the PMC), the HSE did not take account of his intellectual disability and of how this affects his mobility. The algorithm focuses solely on physical ability to walk. The fact that Mr. Ryan was awarded a PMC at appeal stage may seem to amount to a YES answer to the first of the algorithm questions. However, the HSE in Donegal pointed out that its algorithm question asks whether the person has a “severe disability that affects their mobility sufficient that they meet the criteria for PMC ?”, and, in this case, the HSE did not accept that YES was the correct answer in Mr. Ryan’s case. This, in effect, appears to be a rejection of the appeal decision of the DDMBA which found that Mr. Ryan’s mobility problems were such that they did meet the criteria for the Primary Medical Certificate.

7. The MTG Appeal

The HSE Appeals Office has provided information (see note 8 below) on how it deals with MTG appeals generally and on the appeal decision in the Ryan case.  In general, in dealing with MTG appeals, it takes account of a number of matters, including the terms of the scheme, the information supplied to it on the appellant’s file (which includes details of the means assessment and of the assessment by the Medical Officers) as well as any new information provided in the course of the appeal. 

In this case, the Appeals Office did have additional evidence and information, not available when the first decision was made, which it was required to consider.  The principal change which had occurred, since the refusal of the MTG, was that the PMC had since been granted on appeal.  The DDMBA Chairman had informed the HSE of this decision, and, in addition to providing the HSE with a copy of its appeal notes, made it clear that the DDMBA had taken the view that Mr. Ryan is "wholly or almost wholly without the use of both legs".

The Appeals Officer who decided this case stated that the overriding consideration, in making the decision in the case of Mr. Ryan, was the HSE Medical Officer's opinion that he did not meet the medical test of "severe disability".  The Appeals Officer shared the view of the SAMO that the test of “severe disability”, which is a prerequisite to MTG eligibility, should be understood in terms of functional mobility.  She took the view that the decision of the DDMBA was not sufficient to displace the existing decision, which was based on the opinion of the HSE’s Medical Officers.  In particular, the Appeals Officer noted that the other documents supplied with Mr. Ryan's appeal (letters from his GP and from the day care centre) made it very clear that Mr. Ryan could walk.

The Appeals Officer explained, when she was interviewed for the purposes of this Investigation, that, generally, she would not dispute a Medical Officer's opinion.  However, in cases where she felt the appeal merited further consideration of the medical evidence, she would refer the case to a different Medical Officer of the HSE West for an opinion.  She did not seek the views of another Medical Officer in this case, as the decision, which she reviewed, had been made in accordance with the scheme guidelines, and was consistent with decisions made in similar cases.

The Appeals Officer also said that she could not comment on the DDMBA decision to grant a PMC, which certified the applicant to be “wholly or almost wholly without the use of both legs”, when all the evidence confirmed him to be fully mobile. The fact that it is unsafe for Mr. Ryan to be allowed walk on his own, and that he must always be supervised and restrained when walking, did not (in the opinion of the Appeals Officer) compromise his functional mobility.

The Appeals Officer said that, at the time she considered the appeal, she was aware of the letter from the SAMO to the Chairperson of the DDMBA and did not make her decision on the appeal until after the SAMO had spoken to the Chairperson on 1 June 2010.  She, in turn, spoke to the SAMO before making her decision.  The content of neither conversation is recorded by any of the parties involved. In any event, the Appeals Officer has stated very clearly that, in her view, the assessment of Mr. Ryan’s medical eligibility was a matter for the SAMO and the decision on whether or not he had a “severe disability” was one to be taken by the SAMO and not by the Appeals Officer.  Nevertheless, the Appeals Officer contends that she adopted an independent approach in making her decision; she instances the fact that she did not “seek to adopt the decision of a body with (sic) [which] is a separate and distinct statutory body to the HSE”, presumably, the Disabled Drivers Medical Board of Appeal.

In this case Mr. Ryan was not seeking the MTG with a view to retaining employment; and, if he were to qualify, it would have to be on the basis of the “exceptional circumstances” provisions in the scheme. Because the Appeals Officer upheld the decision that he was not “severely disabled”, it was not necessary for her to look at whether or not the “exceptional circumstances” provision would apply (see note 9 below).

While it is not immediately relevant, it is nevertheless appropriate to draw attention here to a matter which has a direct bearing on one of the provisions of the “exceptional circumstances” clause. In order to qualify under this clause, the applicant’s disability “must prevent [him] from using public transport and [he] must have serious transport difficulties”. While no decision was made on this matter, relevant information was gathered in the course of the application and appeal.

The HSE was made aware at the time of the appeal, if not earlier, that there is no public transport available to Mr. Ryan and that, due to his medical condition, he cannot travel on any form of public transport.  The AMO who saw him recorded that Mr. Ryan was able to use public transport but "with close supervision".  The AMO said (see note 10 below) that she ticked this box with the agreement of Mr. Ryan’s mother.  However, this is at odds with the views of the three DDMBA clinicians who saw him and is at odds also with the views of the staff at the day care centre who are well acquainted with Mr. Ryan’s condition.  In a letter to the HSE dated 29 July 2011, the centre said that Mr. Ryan, “has no awareness of safety for himself or others and because of his high needs he would pose a huge risk on SITT transport for himself and others". It seems from this that it is highly unlikely, even if it were available, that he could use any form of public transport safely, even with close supervision. Mr. Ryan’s father told the Ombudsman’s Office that it was simply impossible for his son to use public transport, even with close supervision.  He said that, even in a car, he must be physically restrained and constant verbal reassurance is necessary.

8. Disabled Drivers Medical Board of Appeal

The Disabled Drivers Medical Board of Appeal (DDMBA) is an independent statutory body (http://www.revenue.ie/en/tax/vrt/leaflets/drivers-passengers-with-disabilities-tax-relief-scheme.html) whose members are appointed by the Minister of Finance.  While HSE Medical Officers assess an applicant's eligibility for the PMC in the first instance, appeals are dealt with by the Board.  The current DDMBA chairperson is a Consultant in Rehabilitation Medicine in the Acquired Brain Injury Service at the National Rehabilitation Hospital and there are four ordinary members all of whom are experienced medical practitioners drawn from diverse clinical backgrounds. The adjudicating panel at each appeal session consists of the Chairperson and two ordinary board members who together decide appeals against the refusal of PMC applications.

Under the algorithm in use for MTG assessments in the HSE Donegal, the first step poses the question: "Does the client have a severe disability that affects their mobility sufficient that they meet the criteria for the PMC?"  If YES is the answer then, on the face of it, the applicant will have satisfied the medical condition for the grant. For reasons already described above, both the Medical Officers and the Appeals Officer of the HSE decided that the award of the PMC did not mean that Mr. Ryan satisfied the medical condition for the grant.

The Chairperson of the DDMBA has told (see note 11) this Office that the Board has had a number of conversations about cases like Mr. Ryan’s with HSE Medical Officers. While no notes were made of the conversation of 1 June 2010 in this case between the Chairperson and the SAMO, the Chairperson was clear that she would have said what she always says in such cases.  She would have explained that the key question in such cases is whether the applicant has effective use of his legs.  In a case where walking can involve potential injury to the self or to others, the DDMBA would see that person as not having effective use of his legs.  Mr. Ryan was noted at the DDMBA assessment as being an extremely unsafe walker. The DDMBA also commented that he certainly could not use public transport even with supervision as he needs to be restrained from injuring himself (and potentially from causing injury to others, a point made by the day care centre at the appeal stage). From the perspective of the DDMBA, these are not unusual considerations in the case of young adults who suffer from Autism who may also, (as in this case), suffer from epilepsy.

Note 1

The Appeals Office has said that it is aware that the 2008 Circular is the correct one and is the document used in dealing with appeals. The provenance of the 2009 document was explained as having emanated from a National Review Group (comprising HSE staff) set up by the Department of Health. However, this Office has noted another MTG case where a decision of July 2012 cited the Department of Health Guidelines “as revised in 2009”.

Note 2

The availability of transport to the day centre could be regarded as an important consideration in whether the exceptional circumstances clause of the MTG scheme should be invoked.

Note 3

Defined as a set of prescribed computational procedures for solving a problem or achieving a result.

Note 4

HSE submission Appendix 2 and information supplied by SAMO at interview with Ombudsman staff

Note 5

PQ 31083/11. Reply from HSE direct to Caoimhghín Ó Caolain TD dated 25 October 2011

Note 6

Statistics are from the publication Planning for Inclusion in County Donegal 2009, by the Research and Social Policy Unit, Donegal County Council. The Census 2011 figures on persons with disabilities have not yet been published.

Note 7

This is a statutory scheme. For the purposes of this scheme, a disabled person is defined as a “person with a permanent condition or disability that severely restricts his or her ability to walk.” [S.I. No. 239/2011] Medical officers of the HSE are involved in assessing these applications.

Note 8

Interview with Ombudsman staff on 26 January 2012 and letter of 13 July 2012 from Appeals Officer  to Office of the Ombudsman.

Note 9

In her letter of 13 July 2012 to this Office, the Appeals Officer said:

I believe that it is also important to note that [Mr.] Ryan does not live in very isolated circumstances. Heliveswith his family and he attends a Day Care Centre a couple of times a week. I also understand that one of his parents drives him ... and that this fact would not change even iftheMTG is granted.

I was aware at the time of the issues with regard to his travelling on public transport on his own and that he could use public transport only with the assistance of another person.”

Note 10

At interview with Ombudsman staff. But the AMO’s assessment notes also record:

“Can’t use public transport bec[ause]of his behaviour in public and he can’t travel on his own”

 

Note 11

An Ombudsman staff member observed the DDMBA at its work and spoke subsequently to its Chairman. The Ombudsman very much appreciates this assistance.

9. The Department’s View

The Department of Health was not aware of the MTG review conducted in HSE Donegal nor of the arrangements put in place following that review.  While the HSE in Co. Donegal believed that "other regions aligned their [MTG ] assessments much more strictly with the medical criteria of the Primary Medical Certificate ", this belief does not appear to reflect the actual position in the other regions.

In early 2011 the then Minister for Health (see note 1 below) raised with her Secretary General information she had that there had been a change in the medical eligibility criteria for the MTG and that, in fact, the criteria applicable to the PMC were being applied to MTG applications.  In making enquiries on this with the HSE, the Department was conscious that each of the schemes has its own medical eligibility criteria and that the PMC is based on statute while the MTG is an administrative scheme.  It is clear from material on the Department’s files that while the PMC is based on strict medical criteria, it saw the MTG as based on more general medical criteria.  It is clear from the tenor of the enquiries it made with the HSE that the Department did not believe it was correct to apply the PMC medical criteria to MTG applications.

When the Department raised the matter with the HSE, the HSE response stated that "there has been no corporate decision to change eligibility criteria and the two Schemes are operated quite separately".  However, subsequently, the HSE told the Department that one of the Assessment Officers in Donegal had applied incorrect criteria for the MTG "some time ago" on foot of which two unnamed applicants were refused the grant; however, both applicants were awarded the MTG on appeal (see note 2 below).

In late November 2011 Donegal Senator Brian Ó Domhnaill sought a Seanad adjournment debate on: "The need for the Minister for Health to clarify why genuine and previously... granted MTG applications are being refused (Details supplied)".  In the event, the debate did not take place due to the absence of the Senator.  However, the Department had prepared briefing material for the Minister in the event that the debate would proceed.  The information supplied to the Department by the HSE was that the four applicants concerned were, at that time, awaiting the outcome of their respective appeals.  The HSE also commented: "[p]rior to 2011 the HSE (Donegal) was in a position to approve... grants on a discretionary basis. Due to the increasing number of applications, cost factors and the need to ensure equity in applying the qualifying criteria it is no longer feasible to allow discretionary grants. "

The Department of Health official who had charge of the Office for Disability and Mental Health at that time said, when interviewed for the purposes of this Investigation, that she understood from this that the HSE was seeking to ensure that a standardised approach to interpretation of the circular was being adopted throughout the country. She indicated that this could entail people who had previously received the grant being refused it under new, more consistent approaches.  She also expressed the view that the operation of the scheme was a matter for the HSE but, if there were problems with it, the Department could have been contacted; however, no such contact was, in fact, made.

10. Responsibility for the MTG Scheme

Since its inception in 1968 the MTG has remained an administrative scheme without a statutory basis. The Department of Health has said that it would be preferable to operate the scheme on a statutory footing.  However, it has said this option has not been pursued in recent times because of a Government decision (see note 3 below) that the Department should focus on its core functions in delivering a health service and transfer responsibility for income support schemes to the Department of Social Protection. While responsibility for some other schemes (see note 4 below) has transferred to the Department of Social Protection, the MTG was not transferred.  The Department says that policy proposals relating to the scheme have been formulated and are awaiting decision by the Minister for Health.

The Department stressed at interview that while the overall policy of the scheme is the responsibility of the Department, the administration of the scheme is a matter for the Health Service Executive.  Included under “administration”, according to the Department, is the matter of defining what is meant by the term "severe disability". The HSE appears to agree with this approach saying that its Medical Officers are well placed to determine such matters.  On the other hand, the Department’s circulars of 2007 and 2008 give quite detailed definitions of other terms in the area of training and work (see note 5 below) and it does seem anomalous that the term "severe disability" is not defined in the circular.

The failure of the Department to define the term “severe disability” for MTG purposes contrasts with its approach in the case of the Mobility Allowance, which is another administrative scheme operated by the HSE on the basis of a circular from the Department of Health (see note 6 below).  The Mobility Allowance, according to the circular, is a payment “for severely handicapped persons”; however, the circular then goes on to say that the “essential medical criterion for the grant of the allowance is that the applicant is unable to walk, even with the use of artificial limbs or other suitable aids, or is in such a condition of health that the exertion required to walk would be dangerous. ... The inability to walk must be likely to persist for at least one year ...”.

10.1. Circuit Court Case

A Circuit Court decision from 2010 also sheds light on the issue of overall responsibility for the MTG scheme.

In 2010 the Circuit Court dealt with an appeal by the HSE against a decision of the Equality Tribunal in a case (see note 7 below) involving the Mobility Allowance.  In 2009 an Equality Officer had decided in favour of a claimant who had been refused the Mobility Allowance by the Health Service Executive.  The claim, in brief, was that the HSE took too narrow a view of what constituted a disability for the purposes of the scheme.  The Equality Officer found that the HSE had given no consideration to the fact that factors other than physical disabilities may be relevant in assessing mobility.  In the particular case, the claimant had serious mental health problems and the Equality Officer found that the HSE’s failure to have regard to this fact, for the purposes of determining eligibility for the Mobility Allowance, meant that it did not “allow for assessment that is compatible with the broad definition of disability as set out in the Equal Status Acts.”  The HSE did not dispute the substance of this finding; rather, its Circuit Court appeal was on the basis that the Equality Tribunal process should have been directed, not against itself, but against the Department.  The appeal was successful with the Court finding that the Equality Tribunal process should have been directed against the Department rather than against the Health Service Executive.

This Circuit Court case revolved around issues of interpretation of a crucial term in the Mobility Allowance scheme.  Despite being the body which administers the scheme, the HSE was found by the Court not to be legally responsible for the matter.  The significance of this Circuit Court judgment, in the present context, is that it assigns clear responsibility for the Mobility Allowance scheme to the Department.  Given that the MTG scheme is so similar to the Mobility Allowance scheme, it is reasonable to assume that it is the Department also which has responsibility for the MTG scheme.

In its response to the draft of this report, the Department noted the Ombudsman’s finding and made no comments on the content.

Note 1:

Ms. Mary Coughlan TD, herself a representative for Donegal South-West.

Note 2:

The Appeals Officer interviewed as part of this investigation could not recall any such cases and was unaware of the incident described.

Note 3:

Government Decision S22485H June 2003. A further Decision [S14010 D] made in September 2007 directed that the MTG scheme be retained by the Department of Health with the intention of examining its future in the context of mainstream transport policy.

Note 4:

For example, Supplementary Welfare Allowance and Domiciliary Care Allowance are now the responsibility of the Department of Social Protection.

Note 5:

The terms defined are: Rehabilitative Training, Sheltered Work, Sheltered Employment and Supported Employment.

Note 6:

The Ombudsman published an investigation report, Too Old to be Equal? dealing with Mobility Allowance in April 2010;

Note 7:

Health Service Executive v Gary Quigley, (unreported Circuit Court 26 April 2010)

11. Interpreting “severe disability”

The Equality Tribunal decision referred to earlier (DEC-S2009-012) (opens in new window) is of particular relevance to the question of interpreting the term “severe disability” as used in the MTG scheme. The Equality Officer found that the terms of the Mobility Allowance scheme are defective in that they reflect a very narrow view of what constitutes mobility.  The claimant in the case suffered from schizophrenia, agoraphobia and depression and could not use public transport.  The HSE took the view that he did not meet the requirement of being “unable to walk” and thus rejected his claim. In her decision, the Equality Officer observed:

 "... I note that there is an obvious failure to assess the intellectual and/or psychological capacity of the applicant in relation to their mobility.  I find that the current clinical assessment does not, in its current format, allow for assessment that is compatible with the broad definition of disability as set out in the Equal Status Acts.  The concept of mobility in the [Mobility Allowance] circular is construed in such a narrow manner that it fails to recognise that in severe cases a person's intellectual and/or psychological health may restrict their mobility as effectively as some physical disabilities do. I find that this is a clear omission and it is obvious that the mobility allowance has not been updated to comply with the requirements set out in the Equal Status Acts (enacted in October 2000). ...

Based on the foregoing, I strongly recommend that the Health Service Executive (in partnership with the Department of Health and Children if necessary) examine the various allowance schemes governing people with disabilities to ensure that they and the associated assessment processes comply with the requirements of the Equal Status Acts."  [Our emphasis} (see note 1 below)

These findings, whose substance has not been challenged by the HSE or by the Department, apply equally to the operation of the MTG scheme.  It is clear that, in assessing Mr. Ryan for the purposes of the MTG scheme, the HSE Medical Officers failed to take account of the impact on his mobility of his intellectual disabilities; instead, they focused on the narrow approach of “functional mobility” and whether or not he was physically capable of walking. In taking this approach, which was upheld by the Appeals Officer, the HSE personnel were out of line with the practice of the DDMBA and continuing with an approach of which the Equality Tribunal had been very critical more than one year earlier.

12. The HSE’s Approach to the MTG scheme

It is striking that the HSE in Donegal appears to have developed its own approach to the administration of the MTG with little or no reference to the HSE nationally. Given that one of the aims in establishing the HSE, more than seven years ago, was to promote consistency of approach and of standards, it is surprising that such apparent unilateral action should happen (see note 2 below).

The HSE has told this Office that the HSE in Donegal developed guidelines for use by the Medical Officers there and that these guidelines were to ensure a standardised approach in the absence of national standardisation. However, these guidelines are not in use in other HSE areas.  Donegal uses its own forms, designed to obtain particular information from the applicants, which are not used elsewhere.  The March 2009 "Department of Health" Circular supplied to this Office by the HSE in Donegal, and supplied also with the HSE submission to the Ombudsman on this investigation, was not in fact issued by the Department of Health and is not used in other HSE areas.

The HSE in Donegal did quite a lot of work in reviewing the scheme and developing new work practices.  In principle, this may be laudable.  But it has not resulted in a standardised approach to the assessment of “severe disability” throughout the country.  While the HSE Donegal says it believed it was aligning itself with the practise elsewhere, no evidence was produced to support this.  It seems not to be the case that all other areas of the HSE are allying the medical assessment for the MTG with the medical criteria for the Primary Medical Certificate.

In fact a senior official of the HSE informed the Department in early 2011, following the query raised by the then Minister for Health, that "... there has been no corporate decision to change eligibility criteria and the two Schemes [PMC and MTG] are operated quite separately".  In addition, this Office has seen cases from other areas of the HSE which suggest that a person with a learning disability, but who can walk, may satisfy the MTG medical criteria.  The current Director of the Disability Services Office of the HSE (who had not been supplied with a copy of the HSE submission to this Office when it issued) acknowledged that the approach around the country to the interpretation of "severe disability" may not be consistent.  In fact, there is no evidence that the HSE at national level has sought to achieve clarity and consistency in the operation of the MTG scheme across the country.  Clearly, it is highly desirable that the HSE (in conjunction with the Department) would conduct such an exercise to ensure that services are delivered equitably and that people in similar situations, regardless of address, are treated similarly.

Even if it were the case that the medical criteria for the PMC are being used widely as a method of assessing medical eligibility for the MTG scheme, this approach is questionable. The MTG and PMC schemes were developed with different aims.  The same applies to the approach whereby the criteria to qualify under the Disabled Drivers Parking Permit (DDPP) scheme are applied to MTG applicants.  There may be an administrative convenience involved in applying the criteria for one scheme (such as the PMC or the DDPP) to another scheme; however, the fact remains that these schemes are separate schemes with different objectives and different bases (see note 3 below). It can hardly be good administrative practice to use the criteria of one scheme as a proxy for another, quite separate, scheme except where such an approach is provided for explicitly.

The statutory criteria for the PMC and for the DDPP are specific and relatively narrow. Nevertheless, in the case of the PMC it is clear that that the appeals authority (DDMBA) seeks to apply these criteria in a pragmatic way.  The MTG scheme, on the other hand, is intended to assist severely disabled people retain employment (see note 4 below) and in addition, assist severely disabled people who would otherwise suffer social isolation.  The application, in the case of the MTG in Co. Donegal, of an extremely restrictive interpretation of the term "severe disability" has the consequence that the entire scheme (including the “exceptional circumstances” element) is being curtailed.  In so far as one can discern a clear intent on the part of the Department of Health, which has overall responsibility for the MTG scheme, it does not envisage that a narrow and restrictive approach should be applied in interpreting the term “severe disability”.

It is clear that the current approach by the HSE in Co. Donegal to interpreting the term “severe disability”, in the context of the MTG scheme, is unacceptably restrictive.  It flies in the face of the very explicit 2009 finding of the Equality Officer, cited earlier in this report, who was very critical of the “failure to assess the intellectual and/or psychological capacity of the applicant in relation to their mobility” and who recommended to the HSE and to the Department that they should “examine the various allowance schemes governing people with disabilities to ensure that they and the associated assessment processes comply with the requirements of the Equal Status Acts”.

In the particular case of the Ryans, whose complaint has led to this present investigation and report, it is clear that the MTG application was rejected following a medical assessment based on criteria which were unduly restrictive and not representative of the general approach across the HSE nationally.  It is reasonable to ask whether there may have been other cases in Co. Donegal in recent years where MTG applications were rejected based on the same unacceptable criteria.  The Ombudsman has in fact received a disproportionate number of other MTG complaints from Co. Donegal in recent times (see note 5 below) which include people who had received the grant before and who, despite no improvement in their disability, are now deemed not to have a “severe disability”.  It will be necessary, following this investigation, to pursue these complaints further with the Health Service Executive.

One of the reasons cited for the work done by the HSE in Donegal in reviewing the interpretation of “severe disability” was “a significant increase in the number of applications”.  This is not a sound reason for the reinterpretation of a qualifying condition and by so doing, effectively curtailing the scheme in a particular area. If the allocation of funds is a difficulty (although this has not been made explicit by the HSE) a fairer approach would be to develop a system of prioritisation with qualified applicants being placed on a waiting list for payment. This is what the HSE does in the case of the Nursing Home Support Scheme when funding for recently approved applicants is not available.

13. The HSE Appeals Process

The MTG appeals process is not a statutory process; it is referred to in quite cursory terms in the Department’s governing circular.  Nevertheless, in providing that there should be an appeals process, it seems reasonable to suppose that the Department intends that process to operate along the same lines as a properly constituted appeals system (see note 6 below).  As with any proper appeals system, one would reasonably expect that it would be based on independence, authority and fair procedure.  Following this model, the Appeals Office should make a fresh decision based on all of the information and evidence available at the time of the appeal decision (see note 7 below).

The position of the HSE Appeals Officer who decided the appeal in this case is that she “cannot interfere with a clinician’s medical opinion(see note 8 below).”  She said that she would, from time to time, raise queries with the clinician or ask another medical officer for a second opinion.  In this particular case, however, she accepted the SAMO’s opinion that Mr. Ryan has not got a “severe disability” in the sense in which that term has been interpreted in the HSE Donegal.   The Appeals Officer did not seek to clarify with the DDMBA why it had made the decision to certify Mr Ryan as “wholly or almost wholly without the use of both legs” although she was of the opinion that this statement did not accord with the facts as documented by the HSE and others.

In the case of Mr. Ryan, the Appeals Officer had available to her additional information bearing on Mr. Ryan’s disability which had not been available to the Medical Officers when they made their initial assessment.  This consisted of the PMC appeal decision and the notes of the DDMBA, two letters from the day centre attended by Mr. Ryan and a letter from Mr. Ryan’s General Practitioner.  It appears this additional information did not cause her to question the opinion of the Medical Officers; rather, she saw this information as confirming their opinion that Mr. Ryan is mobile.  Thus, she did not feel the need to seek the opinion of another Medical Officer from within the HSE West and, in the course of dealing with the appeal, it appears the Appeals Officer did not engage with any other party, whether within the HSE or otherwise.

It has to be of concern that the Appeals Officer felt it was not open to her to reject the opinion of the HSE Medical Officers.  It is a feature of appeal systems involving medical criteria that, very frequently, there will be contradictory medical opinions put before the Appeals Officer.  In such circumstances, the Appeals Officer has to weigh the merits of the respective medical opinions and, in effect, choose between them.  The Appeals Officer is entitled to obtain further professional opinion where necessary but it is she who must decide the appeal. The Appeals Officer must exercise both independence and authority in making a decision, and must be free to choose one opinion over another, following a proper evaluation of the evidence (see note 9 below).

It is very relevant also that the Appeals Officer appears to share the view of the HSE Donegal that the term “severe disability”, in the context of the MTG, refers to a disability involving a severe and permanent restriction of movement in the lower limbs, or where walking would cause severe complications or where the person is so disabled as to meet the PMC criteria. In this view, there is no scope for having regard to the consequences for mobility of psychological or intellectual disabilities.  One might reasonably expect an independent Appeals Officer to challenge the appropriateness of this restrictive approach and particularly so in the light of the decision of the DDMBA which, quite evidently, took account of the consequences for mobility of psychological or intellectual disabilities. The DDMBA  decision, made by three experienced clinicians, should have informed the Appeals Officer’s decision.

The approach of the Appeals Officer would seem to be more akin to that of a reviewer rather that of someone who is deciding the case afresh on the basis of all of the information and evidence then available.  All in all, on the evidence of this particular case, it would appear that the MTG appeals function in the HSE Donegal is not operating satisfactorily.

14. The Department of Health’s Approach to the MTG Scheme

Overall responsibility for the MTG scheme rests with the Department of Health.  It is difficult to avoid the conclusion that the Department did not give adequate attention to the operation of the scheme over the years.  In this respect, the Department’s performance appears similar to that in the case of the Mobility Allowance which was the subject of an earlier Ombudsman investigation.

There are some significant indications of a lack of proper engagement by the Department with this scheme.

  • The Department acknowledged (see note 10 below) that it would have been preferable to seek a statutory basis for the scheme but that the proposed transfer of Departmental responsibility for it was a primary focus in recent years.  Nevertheless, since September 2007 it has been clear that responsibility for the scheme would be remaining with the Department of Health. The scheme has continued to operate on an administrative basis for 44 years. While it is possible to operate a scheme fairly and efficiently without statutory authority, it is not a sound practise to continue to do so for such a long period of time. The rights conferred by a statutory scheme are clearer and have a firmer basis in law that those conferred by an administrative scheme.   Had the scheme been placed on a statutory footing, for example, at the time the HSE was established, it would have made inconsistencies in administering it less likely.  The Department has failed to ensure that the MTG scheme is administered fairly and consistently across the country.
  • The Department’s circulars governing the scheme, including the current circular, lack clarity of objective as well as clarity in the use of specific terms such as “severe disability” and “exceptional circumstances”.  While the Department’s files show that there were a number of working groups which reviewed the scheme, particularly in the last ten years, none of them appears to have addressed the interpretation of “severe disability”.  The changes brought about by these groups were few.  While it is reasonable to delegate the operation of the scheme to the HSE, the HSE has not been given sufficient direction as to its operation.
  • The Department has failed to monitor the operation of the scheme in any sustained way.  An examination of its files shows that the Department’s interventions have generally been reactive rather than proactive.  For example, the fact that 40% of all MTG awards for the period 2009 – 2011 are from one county (Donegal) should have attracted the attention of the Department.  But it appears this was not the case.
  • The Department has not acted on the strong recommendation of the Equality Tribunal in February 2009 (DEC-S2009-012 - opens in new window) that it should examine “the various allowance schemes governing people with disabilities to ensure that they and the associated assessment processes comply with the requirements of the Equal Status Acts”; instead, it has allowed the continuation in operation of an approach based on a narrow understanding of “severe disability” which, in the words of the Equality Tribunal, is not “compatible with the broad definition of disability as set out in the Equal Status Acts”.


The Department has several times said (see note 11 below) that it is currently reviewing the policy and operation of various disability payments.  In her investigation of a Mobility Allowance complaint, the Ombudsman commented as follows:

The fact remains that, despite all the talk of reviews over several years, there has not to date been a comprehensive review of the Mobility Allowance and of related schemes intended to benefit people with disabilities. More particularly, and despite the specific promises, there has not been a review to ensure that existing schemes (including Mobility Allowance) comply with the Equal Status Act. An intention to undertake a review at some future date is not a justification for continuing with a practice which is already known to be illegal.”

This comment applies with almost equal strength to the Department’s approach to the MTG scheme.

The Department has pointed out that the MTG scheme is a tiny part of the overall Health budget; while this is very true, this is not a sound reason for neglecting the scheme.  In fact, much work has been done on the key issue of what is meant by the term “severe disability”. Two relevant and significant reports were the Indecon Report on the Cost of Disability in February 2004 (pdf 4.89 MB - opens in new window) and the Interdepartmental Review of the Disabled Drivers' Scheme of 2002 (Disabled Drivers and Disabled Passengers (Tax Concessions) Scheme - Report to Minister for Finance September 2002 (pdf 1.98 MB - opens in new window)). Of particular interest, in the context of this present investigation, is the DDMBA commissioned research into alternative approaches to the assessment of mobility using grading or scoring systems to ensure equality of treatment for applicants to schemes for the disabled.  This research, which is outlined in the Interdepartmental Review of 2002, would be useful to any review of policy in this area.

Based on the material set out above, arising in the context of an investigation of one particular complaint, it is clear that there is certainly a need to review the MTG scheme and decide both its aims and how it might best meet the needs of its target group.

Note 1:

The same Equality Officer made virtually identical findings in another mobility allowance case where the claimant had Downs Syndrome [DEC-S2009-011] (opens in new window)

Note 2:

“At the HSE, our task is to build a health and social care system that is sustainable and capable of delivering nationally consistent high quality services”http//www.hse.ie/eng/services/publication/corporate/intro_to_hse.pdf

Note 3:

The PMC and the DDPP are both statutory schemes whereas the MTG is an administrative scheme.

Note 4:

In the original scheme, the objective was to assist severely disabled individuals obtain employment.

Note 5:

At the time of writing this report, 47 complaints about the MTG scheme had been received by the Ombudsman since January 2010, 33 of which were from Donegal.

Note 6:

For example, the Social Welfare Appeals Office operates an independent appeals service and its method of operation is well known to those working in the welfare services.

Note 7:

In what seems to be a departure from appeal procedures to date, in an appeals process not including the AO in this present case , a decision was made in July 2012 in another MTG case in which the consideration of the appeal was described by the decision-maker as a “de novo appeal process”; MTG was awarded in this instance.

Note 8:

Appeals Officer’s letter to this Office 13 July 2012

Note 9:

In correspondence with this Office, the AO said that she does operate independently and with authority and abides by the appropriate rules. She believes that the decision she made in this case was arrived at independently, having taken account of relevant information and was a reasonable decision made in accordance with her understanding of the Department’s guidelines.

Note 10:

At interview with Ombudsman staff

Note 11:

On 21 April 2011, for example, the Secretary General of the Department assured the Ombudsman that the Department intended to implement its review of the Mobility Allowance scheme “within six months as recommended” by the Ombudsman. This recommendation has not yet (September 2012) been honoured.

Findings

15. Arising from this investigation the Ombudsman makes the following findings (see note 1 below):

  1. That the development by the HSE Donegal of an approach for deciding medical eligibility for the Motorised Transport Grant scheme had the effect of restricting eligibility under the scheme. In addition, as the approach was developed for its own area only, for the purposes of implementing a national scheme, this action amounts to an undesirable administrative practice as well as being contrary to fair or sound administration.
  2. That Michael Ryan was affected adversely by the refusal of his application for a Motorised Transport Grant and that this refusal  reflects an approach to the term "severe disability" which is improperly discriminatory, imposed without proper authority and is otherwise contrary to fair or sound administration.
  3. That the HSE Appeals Office did not exercise appropriate independence or authority in carrying out its functions in the course of Mr. Ryan's appeal. Furthermore, in deciding the appeal, it did not have proper regard to relevant legislation (the Equal Status Acts) or to the import of the documentary evidence provided to the HSE by the Disabled Drivers Medical Board of Appeal and by other parties. Consequently, the decision on the appeal in this case was taken on irrelevant grounds, was based on incomplete information and was contrary to fair or sound administration.
  4. That the Department of Health failed in its responsibility to oversee the implementation by the HSE of the Motorised Transport Grant scheme and failed also to provide the HSE with adequate and clear guidance in relation to the scheme and that these failures were contrary to fair or sound administration.

Recommendations

16. Based on the findings set out above, the Ombudsman makes the following recommendations:

  • That the HSE undertake an immediate review of Michael Ryan's Motorised Transport Grant application in the light of the findings of this investigation and in the light, in particular, of the 2009 comments and recommendations of the Equality Officer on the need to have regard to the broad definition of disability set out in the Equal Status Acts; the Ombudsman further recommends that this review be conducted by HSE staff (both medical and administrative) not previously involved in the Ryan case and that the review be finalised within six weeks of the date of this report.
  • That the HSE review all Motorised Transport Grant applications which were refused by the HSE West on the basis of the revised approach taken by the Donegal Medical Officers since 2009 ; that this review be undertaken in the light of the findings of this investigation and in the light, in particular, of the 2009 comments and recommendations of the Equality Officer on the need to have regard to the broad definition of disability in the Equal Status Acts;  the Ombudsman further recommends that these reviews be completed within six months of the date of this report and that a report on the outcome of the reviews be sent to the Ombudsman.
  • That the HSE undertake a review of its appeal arrangements under the Motorised Transport Grant scheme in the light of the findings of this investigation, with a view to ensuring all Appeals Officers have the freedom to exercise authority and independence in carrying out their functions and that the outcome of this review be given effect within six months of the date of this report.
  • That the Department of Health revise the terms of the Motorised Transport Grant circular governing the scheme, to provide explicitly that the term "severe disability" is to be understood in the light of the findings of this investigation and in the light, in particular, of the 2009 comments and recommendations of the Equality Officer on the need to have regard to the broad definition of disability set out in the Equal Status Acts; the Ombudsman further recommends that the revised Motorised Transport Grant circular be issued to the HSE within six weeks of the date of this report.


Emily O'Reilly
Ombudsman

Note 1:

These findings reflect the language of section 4(2)(b) of the Ombudsman Act 1980 which identifies seven categories of maladministration. These apply where an action was or may have been:

  1. taken without proper authority,
  2. taken on irrelevant grounds,
  3. the result of negligence or carelessness,
  4. based on erroneous or incomplete information,
  5. improperly discriminatory,
  6. based on an undesirable administrative practice, or
  7. otherwise contrary to fair or sound administration.                

Noel Ryan, Co. Donegal on behalf of his son, Michael Ryan

Mr Ryan has complained to the Ombudsman about the decision of the Health Service Executive (HSE) to refuse the application made in February 2010 on behalf of his son for a Motorised Transport Grant (MTG).  Mr Ryan believes that his son meets the eligibility requirements for the grant as he is severely disabled and his circumstances are such that the MTG should be granted relying on the exceptional circumstances clause in the scheme. He contends that the decision to refuse the grant is unfair and has adversely affected his son.

Appendices 2, 3 & 4 to this report are only available as a PDF document. If you have difficulty accessing this document please contact our Access Officer who will arrange to provide the document to you in an alternative format.

Appendix 2:  Responses of the Department of Health and the HSE to the Ombudsman’s notification of investigation

Appendix 3:  Department of Health Circulars on Motorised Transport Scheme 1968-2008; Department of Health Motorised Transport Grant Circular of July 2008

Appendix 4:  Responses of the Dept. of Health and Children and the HSE to the Draft Report

Appendices 2, 3 & 4 (pdf)