Investigation

 

Published  October 2012

A Follow-up Investigation by the Ombudsman into the Illegal Refusal by the Department of Health of Mobility Allowance to People over 66 Years of Age.

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

An Investigation under section 4 of the Ombudsman Act 1980

25 October  2012

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Contents

The Department of Health has, for the past twelve years, been operating the Mobility Allowance scheme on the basis of a condition which is illegal and which the Department has known to be illegal since at least 2008. The illegal condition is the inclusion within the scheme of an upper age limit of 66 years which is contrary to the Equal Status Act 2000. Furthermore, despite having agreed to do so in April 2011, the Department of Health has failed to implement a recommendation from the Ombudsman to remove this illegal upper age limit. As a consequence, the Department has knowingly allowed the scheme to continue in operation on the basis of an illegality.

The Department of Health has now (October 2012) rejected a further similar recommendation from the Ombudsman. This recent Ombudsman recommendation was made following the investigation of five new complaints from people refused Mobility Allowance because of the illegal upper age limit. These complaints were made after the expiry of the period within which the Department of Health had agreed to remove the illegal upper age limit. The Ombudsman’s recommendation was that the upper age limit should be removed from the scheme generally and that the complainants’ applications should be re-considered without reference to the upper age limit.

The Mobility Allowance is a monthly payment made by the Health Service Executive (HSE) to people with a severe disability “who are unable to walk and who would benefit from occasional trips away from home”. The Allowance has been in existence since 1979 and is currently worth a maximum of  €208.50 per month. The Allowance is non-statutory and is administered by the HSE on the basis of a circular issued by the Department of Health.

Main Issue

In April 2011 the Ombudsman published an investigation report called Too Old to be Equal? which dealt specifically with the fact that the Mobility Allowance excludes applicants over the age of 66 years. The Ombudsman made a finding that the inclusion by the Department of Health of this upper age limit was a breach of the Equal Status Act 2000. The Ombudsman found that the upper age limit was illegal and had been illegal since the enactment of the Equal Status Act 2000. The Ombudsman recommended to the Department that it complete a review of the Allowance, which was already underway, and that it then revise the Mobility Allowance so as to render its terms compliant with the Equal Status Act 2000. The Ombudsman further recommended that the process of review and revision should be completed within six months.

It is important to note that the Department of Health accepted the Ombudsman’s finding regarding the breach of the Equal Status Act. It also accepted the Ombudsman’s recommendation. In accepting the recommendation, the Department committed itself (a) to review the Mobility Allowance scheme; (b) to revise the scheme so as to make it compliant with the Equal Status Act and (c) to have the review and revision completed within six months, that is, by end October 2011. Thus, the Ombudsman’s expectation was that, whatever the terms of the revised Allowance, from end October 2011 it would not contain an upper age limit contrary to the Equal Status Act 2000.

The Department has not revised the scheme and it has not removed the upper age limit. The scheme continues to be administered by the HSE on the basis of an age limit which the Department itself accepts is illegal.

Second Issue

In the period since late October 2011, by which time the Allowance should have been rendered compliant with the Equal Status Act 2000, the Ombudsman has received a further five complaints from, or on behalf of, people whose applications for the Allowance were rejected because they were over 66 years of age.

The Ombudsman decided to investigate these five complaints. The actions being investigated are, firstly, the failure of the Department of Health to remove the upper age limit in the scheme and, secondly, the related fact that the Department has allowed the scheme to continue in operation in the full knowledge that a key eligibility condition is illegal.

This Report

This report is by way of a special report to the Dáil and Seanad under the provisions of section 6(5) and (7) of the Ombudsman Act 1980. These provisions enable the Ombudsman to lay a “special report” before the Dáil and Seanad:

"(5)Where it appears to the Ombudsman that the measures taken or proposed to be taken in response to a recommendation under subsection (3) of this section are not satisfactory, he may, if he so thinks fit, cause a special report on the case to be included in a report under subsection (7) of this section."

It appears to the Ombudsman that the measures taken by the Department of Health, since April 2011, in response to her recommendation in the Too Old to be Equal? report are not satisfactory and that this should be brought to the attention of the Dáil and Seanad.

This report deals also with the Ombudsman’s investigation of the five complaints from people whose applications for the Allowance were rejected because they were over 66 years of age. This report should be read in conjunction with the April 2011 report Too Old to be Equal?  which is available on the Ombudsman website. However, for convenience, the key issues of relevance from the earlier report are set out below.

As the Department of Health has now rejected the recommendations of the Ombudsman following this investigation of five recent complaints, the Ombudsman believes that this failure also should be reported to the Dáil and Seanad.

The Department’s position is that it cannot act on the Ombudsman’s recommendations because to do so “would create liabilities the State could not afford”. In other words, abiding by the law of the land is not something we as a State can afford. The Ombudsman’s position – set out in some detail at the conclusion of this report – is that the continued disregard of the law by a key State body is not something we can afford. The Ombudsman rejects absolutely the attempt of the Department to represent its position as a commonsense response to an unfortunate situation in which, in order to target limit resources effectively, it is necessary to infringe on the law. There are options to be considered on how best to use scarce resources. Breaking the law is not one of those options.

In referring throughout this report to “the Department” it is relevant to recall that, for the purposes of the Ombudsman Act 1980, "references in this Act to any Department of State include references to the Minister of the Government having charge of that Department of State ...." (Ombudsman Act 1980, section 1(2)). The Ombudsman understands that the position being put forward by the Department is a position agreed with the Minister for Health.

The overriding issue identified in Too Old to be Equal? was that the inclusion of an upper age limit for applicants is illegal as it constitutes a breach of the Equal Status Act 2000. The report documents that in the course of that investigation the Department was slow to accept this fact. While the Ombudsman’s Office first put it to the Department in February 2009, before starting its investigation, that the age limit appeared to be “improperly discriminatory” (see Note 1 below) and contrary to the Equal Status Act 2000, the Department in its various replies avoided addressing the issue. Two years later, in February 2011, the Department for the first time addressed this issue of improper discrimination and of non-compliance with the Equal Status Act 2000.

In commenting on a draft of the Too Old to be Equal?  report, the Department appeared to accept that the upper age limit was illegal. The Department said it accepted that it should have “reviewed and updated the mobility allowance scheme following the enactment of the Equal Status Act” in 2000. Further, it said that “following a more recent review of the terms of the scheme, particularly the upper age limit and the definition of disability, the Department [had] concluded that it could not continue to operate on the current basis”. At that point also, the Department told the Ombudsman that the then Minister had “agreed that the mobility allowance should be paid, on an exceptional basis, to Ms. Browne [complainant]” from the date of application in June 2008.

In her Too Old to be Equal? report the Ombudsman commented that the failure of the Department, over an eleven year period (up to April 2011), to comply with the Equal Status Act 2000 reflected very poorly on the Department. She noted that there is a particular onus on the Department of Health in the area of disability and that one might reasonably expect that Department, even more than public bodies generally, to be cognisant of the legal rights of people with disabilities. The Ombudsman referred to the fact that the Department is the lead Department in terms of promoting the welfare and life chances of people with disabilities; that it has a Minister of State with special responsibility for equality, disability issues and mental health and that it has, within the overall Departmental structure, a dedicated Office for Disability and Mental Health with its own Director.

In her earlier report also the Ombudsman pointed out that there were several reasons why, prior to the point being made by her Office (in February 2009), the Department should have been aware that the upper age limit for Mobility Allowance was illegal. In June 2008 the Department was effectively forced to remove an upper age limit from the Motorised Transport Grant scheme. This decision came about following a process begun in May 2007 by the Equality Authority which was acting on foot of a particular complaint. When the Department failed to engage with the Equality Authority the complaint was referred on to the Equality Tribunal for adjudication. Only following this referral to the Equality Tribunal, and in the light of an impending adjudication by the Tribunal, did the Department engage with the age limit issue. At that point, June 2008, the Department accepted that the upper age limit breached the Equal Status Act and removed this condition from the terms of the Motorised Transport Grant scheme.

In June 2008, therefore, the Department should have been aware that the continued imposition of an upper age limit for the Mobility Allowance was also a breach of the Equal Status Act 2000. However, in its dealings with the Ombudsman over two years (February 2009 – February 2011) the Department failed to respond to specific queries on the matter and in effect evaded this issue. Eventually in February 2011, and very similar to how it had dealt with the Equality Authority and the Equality Tribunal in the case of the Motorised Transport Grant, the Department acknowledged that the upper age limit for the Mobility Allowance was not tenable.

In her Too Old to be Equal? report the Ombudsman referred to a reluctance on the part of the Department to face up to the fact that its Mobility Allowance scheme has a significant legal defect. It is evident from the report that the Department faced up to this fact only when it was clear that the Ombudsman would find against the Department on the matter of the upper age limit. This was a repeat of its performance in the case of the Motorised Transport Grant; only when it was clear that the Equality Tribunal would find against it, did the Department deal with the fact that the upper age limit in that scheme was not tenable.

In the case of the Motorised Transport Grant, the Department removed the upper age limit for all applicants. In the case of the Mobility Allowance, while the Department agreed that the particular complainant should be paid the Allowance, it did not remove the age limit generally. The Department said that it wished to deal with the age limit issue along with other issues of concern. In particular, it said it wished to deal with an issue relating to the definition of disability which was raised also in the Ombudsman’s report (see Note 2 below).


Reviews of Scheme

During the course of the Ombudsman’s investigation which led to the Too Old to be Equal? report, the Department sought to explain the delay in bringing the Mobility Allowance into line with the Equal Status Act on the basis that it was reviewing the operation of the Allowance. In letters to the Ombudsman dated 30 April 2009, 2 November 2009, 29 January 2010 and 11 February 2011 the Department said it was undertaking a review of the scheme. In the case of the letter of 11 February 2011, the Department said that certain “options in relation to the future of the mobility allowance scheme have been submitted to, and considered by, the Minister and the Government but final policy decisions in this regard have yet to be taken”. The Department then commented that, as a General Election was then underway, the issue would “have to be dealt with by the new Minister/Government”. 

The Too Old to be Equal? report refers to the fact that in the period since 2000 there had been a number of previous references by the Department to the fact that it was reviewing the Mobility Allowance (see Note 3 below). Nevertheless, in framing her recommendation in April 2011, the Ombudsman accepted in good faith that the Department would act quickly to correct the defect in the Mobility Allowance scheme. On this basis, the Ombudsman recommended as follows:

"In order to deal with the underlying cause of the adverse affect on Ms. Browne, the Ombudsman recommends that the Department of Health and Children completes its review of the Mobility Allowance scheme and, arising from that review, revises the scheme so as to render it compliant with the Equal Status Act 2000. The Ombudsman further recommends that this process of review and revision should be completed within six months of the date of this report."

In the context of a scheme operating on the basis of a requirement known to be illegal, seeking to have this defect remedied within six months was more than generous. For the Department, knowing that any other complaint to the Ombudsman based on the upper age limit would necessarily have the same outcome as in the case of Ms. Browne, there should have been an urgency to revise the scheme at the earliest possible moment.

On 21 April 2011 the Department accepted this recommendation and its Secretary General noted explicitly that the Department “intends to act on it within six months, as recommended”.


Note 1:

This is one of the seven categories of maladministration identified at section 4 of the Ombudsman Act 1980.

Note 2:

The Ombudsman drew attention in her report to two decisions of an Equality Officer who found that the definition of mobility, as used for the Mobility Allowance scheme, is unduly restrictive. The Equality Officer commented:

"The concept of mobility in the [Mobility Allowance] circular is construed in such a narrow manner that it fails to recognise thatin 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 itis 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). ..." (DEC-S2009-012)"

Note 3:

For example, in a PQ reply of 7 November 2007, Minister of State, Jimmy Devins, said:

"... [my] Department is aware of the issue of age related criteria for health allowances andgrants. Having regard to equality legislation, my Department is considering the question of removing the upper age limit for this scheme." (PQ27807/07)

On 21 October 2011, by which time the Ombudsman’s recommendation should have been implemented, the Ombudsman’s Office wrote to the Department seeking details of the outcome of the review and the “manner in which the Mobility Allowance scheme has been revised.” In the event that the review had not then been completed, the Ombudsman asked for a “detailed update and a date when the Ombudsman’s recommendation will be fully implemented”.

The Department replied to this letter on 28 November 2011 (see Appendix to report). The reply was that the future of the scheme had been “considered by Government and is due to be considered again soon. When the Government has made a decision in relation to mobility allowance, the Department will be back in touch with the Ombudsman”. The Department made no mention of the six month timescale for meeting the Ombudsman’s recommendation; nor did it contain any apology for failing to implement the recommendation.

In the absence of further communication, the Ombudsman’s Office wrote again to the Department on 29 December 2011. This letter pointed out that the Department had failed to implement the Ombudsman’s recommendation and that it was continuing to stand over a scheme with “an eligibility criterion which, on the Department’s own admission, is in breach of the law”. Because there was an inference in the Department’s letter of 28 November 2011 that the Department required a decision from Government in order to comply with the Ombudsman’s recommendation, the Ombudsman’s Office pointed out that the Department “should have anticipated this difficulty when it committed to meeting the Ombudsman’s recommendation”. 

On 20 January 2012 the Ombudsman’s Office wrote to the Department to say that it had received two new complaints from people refused Mobility Allowance because of the upper age limit. The Ombudsman asked the Department to set out the then current position on the matter. Following a number of reminders, the Ombudsman received the Department’s reply on 7 March 2012. It said that the overall position was the same as that set out in its letter of 28 November 2011, that is, no decision yet taken on the upper age limit. As regards the two recent complaints received by the Ombudsman, the Department said that, because the eligibility criteria had not been changed, the HSE was not “authorised to pay the allowance outside of the eligibility criteria”.

The matter of making the Mobility Allowance compliant with the Equal Status Act was raised in a Parliamentary Question on 31 January 2012 (Question No. 573). In her written reply, the Minister for State (Ms. Kathleen Lynch) referred to the Ombudsman’s recommendation and said: “The Department has pointed out to the Ombudsman that there are a range of policy options that need to be considered. Final policy decisions in this regard have yet to be taken”. There was no mention of the Department’s commitment to have implemented the Ombudsman recommendation by 21 October 2011.

On 18 June 2012 the Ombudsman’s Office wrote again to the Department to say that it had received further complaints regarding the upper age limit for Mobility Allowance and to seek an update on when a decision on the matter might be expected. On 13 July 2012 the Ombudsman received the Department’s reply which was that “the position, at present, remains as in previous correspondence”.

In the meantime, the Ombudsman, laid her Annual Report for 2011 before the Dáil and Seanad on 26 June 2012.  In her Report, the Ombudsman drew attention to the fact that the Department had failed to comply with the recommendation made in the Too Old to be Equal?  report. She commented in her Annual Report:

"In my original Investigation Report I observed that the apparent inability of the department to deal with issues, such as the inclusion of an illegal condition in the Mobility Allowance Scheme, leaves it open "to the perception that it is unconcerned with the fact that it is operating a scheme which is at odds both with the law of the land and with human rights law more generally." More than a year later, the department has not shown that this perception is unwarranted."

"I also find it totally unsatisfactory that the department failed to contact me to say that it had not complied, or was unable to comply, with the recommendation."

On 20 July 2012 the Ombudsman’s Office wrote to the Secretary General of the Department to say, in view of the Department’s failure to implement the Ombudsman’s recommendation, and in the absence of any definite date from which the recommendation would be implemented, that the Ombudsman intended to make a special report to the Oireachtas on the matter.

On 27 July 2012 the Department replied. For the first time since the passing of the six month deadline for the implementation of the Ombudsman’s recommendation, the Department apologised for “the delay in relation to this matter”. The Department continued:

It is now our firm intention to have this matter resolved by the end of September. Because of the nature and sensitivity of the decisions that have to be taken in relation to this allowance, and other issues, the matter does have to go to Government and we are preparing for this at the moment.

 

Since completing the Too Old to be Equal? report, the Ombudsman has received five complaints from or on behalf of people whose Mobility Allowance applications have been refused by the HSE because the applicant was over 66 years at the point of application. For the purposes of this present report, it is not necessary to identify these complainants or to assess the general merits of their applications. The Ombudsman has already been in contact with the HSE regarding these complaints. Its position is that, in the absence of an instruction from the Department allowing the upper age limit to be set aside, it must deal with these applications by reference to the current eligibility criteria (see note 1 below). It may be helpful for present purposes, however, to give a brief account of the circumstances of these five cases.

Case 1

This man was 67 years old when he first applied for Mobility Allowance in April 2011. He suffered a stroke in 1996 which, he says, left him with severe mobility problems. The HSE refused his application on age grounds. There was no medical assessment of his mobility made by the HSE nor was there any financial assessment done. The complaint was made to the Ombudsman in April 2012. A further issue raised in this case is that the complainant and his family say they heard of the Mobility Allowance only in 2011 and applied immediately; they say that they should have been advised by the HSE of the existence of the Allowance when the man was first disabled. Had this man been already receiving the Allowance before 66 years of age, he would have continued to be paid it after 66 years of age. The upper age limit applies only to those first applying for the Allowance after 66 years of age.


Case 2

This woman was 81 years old when she first applied for the Mobility Allowance in September 2011. The application was refused by the HSE on the grounds that “[u]nfortunately, under the criteria laid down by the Department of Health & Children, you are not eligible ... The criteria state “Applicants must be 16 years or older and under 66 years”. The HSE did not undertake either a medical assessment of the woman’s mobility or a financial assessment. A medical report provided by the woman’s GP indicated that she has serious mobility problems. Her appeal of the decision to refuse was unsuccessful on the same grounds. The complaint was made to the Ombudsman in December 2011. Regrettably, this complainant died in late March 2012.


Case 3

This man was 91 years old when he first applied for the Mobility Allowance in April 2012. In fact, this man is the husband of the complainant at Case 2 above and his application was refused by the HSE in terms identical to those used in the case of his late wife. The HSE did not undertake either a medical assessment of the man’s mobility or a financial assessment. This man’s appeal was refused because of the upper age limit with the appeals officer remarking that he was “governed by the legislation (sic) and current guidelines relative to the scheme”. The complaint was made to the Ombudsman in July 2012.


Case 4

This woman was 73 years old when she first applied for the Mobility Allowance in August 2011. The application was refused by the HSE “as guidelines state that you must be under 65 years”. [In fact, the upper age limit is 66 years.] The HSE did not undertake either a medical assessment of the woman’s mobility or a financial assessment. The woman appealed the refusal decision but the relevant HSE appeals office has not dealt with this appeal. This, apparently, is because the appeals office understands the HSE local office is reviewing the original decision. However, there is no evidence that the case is under active review. The complaint was made to the Ombudsman in December 2011.


Case 5

This man was 77 years old when he first applied for the Mobility Allowance in September 2011. The application was refused “as applicants must be 16 years or older and under 65 years” (sic). The man notified the HSE of a possible legal claim under the Equal Status Acts 2000 – 2004 using a standard form (Form ES.1) provided by the Equality Authority. The HSE treated this as an appeal and in November 2011 the local HSE General Manager gave an “appeal decision” to uphold the refusal. In December 2011 the man complained to the Ombudsman. At the same time, he wrote to the HSE with a further appeal which was referred to the HSE appeals office. That office requested a medical assessment of the applicant – no previous such assessment having been done. This medical assessment was carried out by a HSE medical officer in April 2012. The outcome of that assessment was that the man was regarded as not being medically eligible for the Mobility Allowance. In fact, the man accepted this assessment and accepts that he will not qualify for the Mobility Allowance. However, he has told the Ombudsman’s Office that he remains very aggrieved at having been excluded from consideration solely on grounds of age.


Note 1:

In fact the HSE has been seeking clarification on the matter from the Department for some time.

The Ombudsman made it very clear in the Too Old to be Equal? report that she was expressing no view as to what the outcome might be following the Department’s review of the Mobility Allowance scheme. The Ombudsman has no role in relation to whatever matters might be put to Government regarding the future of the scheme or of related schemes. The sole concern of the Ombudsman is that a scheme, devised on an administrative basis by the Department, should not be operated on the basis of an eligibility criterion which is illegal.

It is very important to be absolutely clear that action to render the Mobility Allowance scheme compliant with the Equal Status Act does not require a decision from Government. It is perfectly understandable that proposals relating to income supports for people with disabilities should be brought to Government and that whatever decisions Government thinks appropriate will be made by it. However, it would be absurd to think that the Department could not remove an illegal requirement from its own administrative scheme and then discuss at Government level whatever further changes might be necessary.

When a similar issue came to a head in 2008, the Department simply deleted the upper age limit from the Motorised Transport Grant scheme and issued a revised circular to the HSE to this effect. It could have made the same change to the Mobility Allowance scheme at any stage since June 2008 when it changed the Motorised Transport Grant scheme.

Clearly, a decision to remove the upper age limit would have financial implications. The Department made this point in the course of the Too Old to be Equal? investigation. In a letter to the Ombudsman, dated 30 August 2009, the Department said: “it is not feasible to amend the scheme to remove the upper age limit in the current economic circumstances”. The Ombudsman acknowledged then, and continues to acknowledge, that the financing of the scheme is a problem. However, financial constraints cannot justify a scheme condition which is illegal. The Ombudsman wrote in that report:

"In the case of the Mobility Allowance, amending the scheme to remove the upper age limit can be done on an administrative basis as the scheme is not a statutory scheme. If the cost implications of extending the scheme to people over 66 years cannot be borne in present financial circumstances then it may be necessary to make other changes to the scheme, consistent with the Equal Status Act and with other legal requirements, which allow it to operate within the resources available. Postponing action, or taking no action at all, is not acceptable behaviour on the part of a public body in a society which is ruled by law. This is particularly the case where those most affected by the failure to act constitute a vulnerable group which is unlikely to be able to organise and lobby with a view to vindicating its rights."

In its contact with the Ombudsman in the course of the Too Old to be Equal? investigation, the Department sought to link the removal of the illegal upper age limit to a wider review of the Mobility Allowance scheme. While removing the illegal upper age limit did not require a wider review, the Ombudsman nevertheless accepted the Department’s position in good faith. In the light of subsequent events, it is clear that this acceptance of the good faith of the Department may not have been justified. It might have been wiser had the Ombudsman recommended the removal of the illegal upper age limit with immediate effect. Agreeing to a six month period in which to correct the problem has, it would appear, simply allowed the Department to postpone further the action which it must take.

Whatever the financial pressures, whatever the constraints of getting Government attention during the current economic crisis, it remains the case that a Government Department simply cannot allow one of its schemes to continue in operation where it is known – and long known – that one of its key conditions is illegal.

The Department was given an opportunity to comment on a draft of this report. The Secretary General of the Department responded in a letter dated 3 October 2012 (the full text of his letter is available in the Appendix to this report).

The main points made by the Secretary General were:

  • The potential impact of a decision on the scheme, in terms of increased exchequer costs or loss of income to a vulnerable group of people, indicates that this was an appropriate matter to bring to the attention of the Government. The Minister reserves the right and discretion to decide on what is appropriate to bring to Cabinet.
  • The Motorised Transport Grant is not comparable to the Mobility Allowance in terms of its purpose or the level of expenditure involved.  Therefore the contention that the age limit could be removed for the Mobility Allowance is not accepted.
  • Options have been put to the Government which have given rise to significant policy and legal issues which the Department intends to resolve expeditiously.
  • The Department has serious regard for the legal rights of people with disabilities.
  • The Department has to have regard to the best use of available resources and ensure that those resources are targeted at those most in need of assistance.

The Ombudsman has already clarified that she does not claim any right to suggest what the outcome might be following the Department’s review of the Mobility Allowance scheme. Clearly, it is also the case that the Ombudsman has no role in relation to whatever matters might be put to Government regarding the future of the scheme or of related schemes. The sole concern of the Ombudsman is that a scheme, devised on an administrative basis by the Department, should not be operated on the basis of an eligibility criterion which is illegal.

The Ombudsman welcomes the Department’s assurances concerning the legal rights of people with disabilities and also recognises the Department’s need to make the best use of available resources.

Those rights and needs cannot, however, absolve the Department from its overriding duty to act lawfully. Regardless of the explanations offered by the Department it remains the case, very simply, that the Department continues to operate an administrative scheme on the basis of an eligibility criterion which is illegal.

Following her investigation under section 4 of the Ombudsman Act 1980, the Ombudsman made the following findings:

  1. That her finding, first made in the Too Old to be Equal? report, continues to apply: “that the Mobility Allowance scheme, as currently constituted, is in breach of the Equal Status Act 2000 in as much as it includes an upper age limit which cannot be justified on any basis which would render that age limit in compliance with the Equal Status Act”. The Ombudsman finds that this breach of the Equal Status Act is improperly discriminatory, based on an undesirable administrative practice as well as being contrary to fair or sound administration.
  2. That the failure of the Department to honour its commitment to implement the Ombudsman’s recommendation in the Too Old to be Equal? report is based on an undesirable administrative practice as well as being contrary to fair or sound administration.
  3. That the five complainants in question have been adversely affected by the refusal of their applications for Mobility Allowance and that these refusals arose from reliance by the HSE on a condition of the scheme (the upper age limit) which is improperly discriminatory, imposed without proper authority and is otherwise contrary to fair or sound administration.

Following her investigation under section 4 of the Ombudsman Act 1980, and arising from the findings set out above, the Ombudsman made the following recommendations to the Department of Health:

  1. That the Department, without prejudice to whatever decisions may be made regarding the future of the scheme more generally, remove the upper age limit as a condition of the Mobility Allowance scheme with immediate effect.
  2. That the Department authorise the HSE to reconsider the Mobility Allowance applications of four (see note 1 below) of the complainants whose cases are described earlier in this report and that this reconsideration should not take account of the upper age limit.
  3. That the Department require the HSE (i) to identify all applications for Mobility Allowance received since 1 April 2011 which have been refused solely on the basis of the upper age limit, or where a decision has been postponed pending clarification on the upper age limit, and (ii) to reconsider these applications without regard to the upper age limit.

 Note 1:

The Ombudsman accepts that the complainant in Case 5 does not expect to have his application reconsidered by the HSE.

The Department rejected the Ombudsman’s recommendations. In its response (see note 1 below), the Department says that it is “not in a position to amend the circular relating to the Mobility Allowance”. Furthermore, it says that the “recommendations, if implemented would ignore the very serious financial constraints on the Department, the HSE and the State generally.” It says: “Implementation of the recommendations would create liabilities that the State cannot afford”. Finally, the Department says that, nevertheless, it “will be seeking to resolve the outstanding issues as expeditiously as possible”.

The Department represents the present situation as an unfortunate conflict between the requirements of the law and the constraints on public spending. One might have some sympathy with this view if the difficulty was one of recent origin. One might accept that the Department should be given some reasonable time in which to resolve this conflict. However, the fact is that the Department has been given more than adequate time in which to resolve the conflict. The illegality has been occurring since 2000, for twelve years. The Department has, or ought to have, known of this illegality almost from the outset. The Department has been on specific notice of the need to resolve the problem since April 2011. It agreed to resolve the problem in April 2011.

In any event the Ombudsman rejects the proposition that, in the light of the present crisis in State finances, it is not possible to implement her recommendations. This is not a case in which abiding by the law necessarily involves a substantial increase in public spending. The Ombudsman made this clear in her original report of April 2011 when she referred specifically to the need to match the terms of eligibility under the scheme with the level of resources available. While it was not, and is not, an area in which the Ombudsman should express a preference, it is clear that the options available to the Department range from abolition of the scheme in its entirety, to a reduction in the monetary value of the scheme, to the introduction of some other limiting (but legal) eligibility condition.

There is a significant issue of trust raised in the response of the Department to the Ombudsman. At present, in a time of very serious national crisis, the provision of health and welfare services is of critical importance to people generally. People need to have confidence that they can trust the Department of Health, and indeed all organs of the State, to act responsibly, fairly and legally. In the very complex area of health and welfare services, it is often very difficult to follow the twists and turns necessary to ensure services are provided to the fullest extent possible within the available resources. While these developments are the subject of debate within the Oireachtas and in the media, people to a large extent must take it on trust that the State, through its agencies, is acting with integrity.

Furthermore, there is a need for openness on the part of State agencies and people need to feel that all of the issues of relevance are being put before them. People need to be clear that whatever difficult decisions must be made will be made following an open and honest assessment of all relevant considerations. The possibility of abolishing the Mobility Allowance scheme, or otherwise curtailing its scope, is something about which people should be informed. Inevitably, any decision to abolish or curtail a service or payment will have political implications; but this is not a reason to refuse or defer action necessitated by the law.

Finally, the Department’s rejection of the Ombudsman’s recommendations raises a fundamental question about the strength of our commitment nationally to international human rights norms. The Equal Status Act 2000 has to be seen as a recognition in our law of the international human rights principle of equality. The failure over the last twelve years to remove the upper age limit from the Mobility Allowance scheme is a direct rejection of the human rights principle enshrined in the Equal Status Act 2000. The continued failure of the Department to tackle this issue suggests that it has a very weak sense of the importance of supporting human rights principles and, indeed, a very weak sense of the rule of law and of its obligation to act in accordance with the law.

The Ombudsman takes the view that it is now a matter for the Dáil and Seanad to consider this report. She will be very happy to accept an invitation, if made, to discuss this report with the Joint Oireachtas Committee on Public Service Oversight and Petitions.

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Emily O’Reilly
Ombudsman
25 October 2012

Note 1:

Letter from Secretary General dated 22 October 2012 – published in the Appendix to this report.

The PDF below contains items of key correspondence between the Department of Health and the Office of the Ombudsman which are relevant to this report. The correspondence is available in PDF format only. If you have difficulty accessing the PDF please contact our Access Officer who will arrange for the information to be provided to you in an alternative format.

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