Report to Dáil and Seanad

Published  November 2012

Motorised Transport Grant

Report on the refusal by the Department of Health to implement a recommendation of the Ombudsman

A Report to the Dáil and Seanad under section 6(5) and (7) of the Ombudsman Act 1980

November 2012

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Contents

The Ombudsman reports to the Dáil and Seanad that the Department of Health has recently rejected an Ombudsman recommendation relating to the operation of the Motorised Transport Grant (MTG) scheme. The recommendation, if implemented, would ensure that the MTG scheme operates in compliance with the Equal Status Acts. The Department accepts that the Ombudsman’s investigation has raised significant issues in relation to the MTG scheme; but it states that it cannot accept the Ombudsman’s recommendation because to do so would have serious financial implications for the State. The Ombudsman made the recommendation following her investigation of a complaint on behalf of a young man with severe disabilities whose MTG application had been rejected by the Health Service Executive (HSE).

The Ombudsman made three recommendations to the HSE which reflect the same concerns as inform the recommendation to the Department of Health. The HSE accepted the Ombudsman’s recommendations in full and noted the thoroughness of the investigation. The HSE has drawn up an implementation plan to deal with the recommendations made to it. The willingness of the HSE to act on the Ombudsman’s recommendations is in contrast with the Department’s position that it cannot accept the Ombudsman’s recommendation.

The Department’s rejection of the recommendation is consistent with its recent rejection of a similar Ombudsman recommendation relating to the Mobility Allowance. (The Ombudsman reported on this to the Dáil and Seanad on 24 October 2012.) Both Ombudsman recommendations reflect the fact that administrative schemes operated on behalf of the Department by the HSE should be in compliance with the law of the land.

The Department will now continue to operate two schemes for people with disabilities on the basis of conditions which fail to comply with the law. The Department’s position is that the public interest is best served by its refusal to agree to render the MTG and Mobility Allowance schemes compliant with the Equal Status Acts, as to do so would impose unacceptable financial cost.

It is the Ombudsman’s position that there can be no justification for allowing this disregard for the law to continue. We are a society ruled by law.

The MTG is a non-statutory scheme in operation since 1968. It was set up by the Department to grant-aid severely disabled people in acquiring or adapting a car in order to retain employment. The maximum grant payable is €5,020. It is possible, under the terms of the scheme, to name another person to drive the car. 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 social isolation. 

This was an investigation of a complaint about the refusal of the HSE to award a MTG to a young Donegal man. The refusal was 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 found also that the Department of Health had failed in its responsibility to oversee the implementation of the scheme and had failed to provide the HSE with adequate and clear guidance.

The investigation looked in detail at the HSE's handling of the particular case. The HSE acknowledged that the applicant has a profound intellectual disability in addition to other, severely debilitating conditions. The HSE also accepted that the applicant 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.

Between 2009 and 2011 the HSE’s Medical Officers in Donegal had undertaken a review of the medical eligibility requirements for the MTG which resulted in a particular interpretation of the term "severe disability". In Donegal (and possibly in some other areas) “severe disability", in the context of the MTG, is understood to refer to a disability involving a severe and permanent restriction of movement in the lower limbs or to a situation in which 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 and contrary to the Equal Status Acts. These Acts prohibit discrimination not only against persons with disabilities, when compared to those without a disability, but also prohibit discrimination against persons with disabilities when compared with others with different disabilities. The latter case applies here.

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 the applicant in relation to their mobility”.  The Equality Officer recommended to the HSE and to the Department at that time 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”.  The Ombudsman found no evidence that any such review had taken place.

Following the investigation, the Ombudsman made recommendations to the HSE about the individual case which had prompted the investigation and also about some wider administrative issues. She recommended to the HSE that the particular case, the subject of her investigation, be reviewed and that there be a review of all MTG applications refused on the basis of the revised approach taken by the Donegal Medical Officers since 2009. She recommended also that the HSE review its appeal arrangements under the MTG scheme with a view to ensuring that all Appeals Officers have the freedom to exercise authority and independence in carrying out their appeal functions. 

The HSE accepted the Ombudsman’s recommendations in full (see Appendix 1 to this report). The HSE has in the meantime drawn up a plan for the implementation of the Ombudsman’s recommendations. (The full details of these recommendations are set out in the investigation report which is being published separately on the Ombudsman’s website.)

The Ombudsman made one recommendation to the Department arising from the investigation:

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.

This recommendation is directed towards ensuring that the MTG scheme reflects an understanding of disability which is consistent with the Equal Status Acts. The recommendation is consistent with the 2009 observations of an Equality Officer (cited in the investigation report).

The Department has rejected this recommendation. It said that it was not in a position to amend the circular relating to the MTG as this would have serious financial implications. It accepted that significant issues were raised by the investigation. The Department said that it is its policy objective “to consider and present to Government all the options open to it in the current economic climate so as to ensure that all schemes meet the requirements of the Equal Status Acts”. The Secretary General of the Department concluded the Department’s response to the Ombudsman with the statement: “In the current financial environment this will prove challenging to achieve and I can give no assurances in this regard.”

The full text of the Department’s response is included as Appendix 2 to this special report.

It is unacceptable that the Department should say that it cannot guarantee that its schemes will “meet the requirements of the Equal Status Acts”. The Department of Health is indeed challenged by the current financial environment but it has known about the necessity to bring its schemes into line with the Equal Status Acts for many years. The Equal Status legislation, dating from 2000, is unequivocal in prohibiting discrimination against a person with a disability in comparison with a person with none or in comparison with a person with a different disability.

In refusing to accept the Ombudsman’s recommendations (both in relation to the MTG and the Mobility Allowance) the Department claims to be doing the right thing. Yet the disregarding of the law can never be the “right thing” for citizens or for Government departments.

It is imperative that the Department should reflect on the wider societal implications of its current position.

There is now an urgent need to establish the basis on which the Minister and his Department have arrived at this position.

Under Section 6(5) and (7) of the Ombudsman Act 1980 the Ombudsman may present a special report to the Dáil and Seanad where it appears to her that the response made to a recommendation arising from an investigation is unsatisfactory. This is such a report.

The full report of the investigation which led to the rejected recommendation is now being published on the Ombudsman’s website. The executive summary of that investigation report is included as an appendix to this special report.

Emily O'Reilly
Ombudsman
November 2012

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HSE Response

An Roinn Sláinte
DEPARTMENT OF HEALTH

22 October 2012

Your Reference: HC4/10/1994

Emily O'Reilly
Ombudsman
Office of the Ombudsman
18 Lower Leeson St.
Dublin 2

Dear Ms O'Reilly,

I refer to your letter of 28th September 2012 enclosing your report of an investigation of a complaint by Mr. Noel Ryan regarding an application by his son Michael for a Motorised Transport Grant.

Your letter requests that the Department should indicate whether it accepts and intends to act on your recommendations in the report.

In the first instance, I would like to clarify a point around your statement in the introduction to the report. "While the HSE supplied a detailed commentary on the draft, the Department noted its findings but did not comment on the content." I respectfully suggest that this statement might be read as being pejorative to the Department in that it seems to indicate that the Department did not consider that the report merited comment. The Department set out its position in previous correspondence.

Your recommendation is that the Department should revise the definition of disability in the circular governing the Motorised Transport Grant having regard to the broad definition of disability set out in the Equal Status Acts and should do so within six weeks of the publication of your report. In addition you have requested the HSE to review Michael Ryan's application and other applications in Donegal having regard to the broad definition of disability in the Equal Status Acts and also having regard to comments and recommendations by an equality officer in two cases which related to a different allowance and which were successfully appealed by the HSE in the courts.

The Department is not in a position to amend the circular relating to the Motorised Transport Grant as you recommend in the report. Expansion of the definition would impose serious financial constraints on the Department, the HSE and the State generally. The recommendations, if implemented as outlined, would create liabilities that the State could not afford.

However, the Department does accept that significant issues have been raised by you in relation to the Motorised Transport Grant, the Mobility Allowance and the Equal Status Acts in relation to age limits and the definition of disability. As per previous correspondence the Department's policy objective remains to consider and present to Government all the options open to it in the current economic climate so as to ensure that all schemes meet the requirements of the Equal Status Acts. Any delay in reaching this policy objective is regretted, but we are still working on options in this matter.

In the current financial, environment this will prove very challenging to achieve and I can give no assurances in this regard.

Yours sincerely

Dr Ambrose McLoughlin
Secretary General