4.1 Legality of the Upper Age Limit
Given the position of the Department of Health and Children as one of the key public agencies involved in promoting the rights and welfare of people with disabilities, it is remarkable that, as an Equality Officer pointed out (in her decisions in DEC-S2009-011 and DEC-S2009-012), the Department has not yet, ten years after its enactment, updated the Mobility Allowance to bring its terms into line with the requirements of the Equal Status Act. Had there been a review, it seems inevitable that the Department would have recognised that the application of an upper age limit for the Mobility Allowance contravenes the Equal Status Act 2000.
In June 2008 the Department acknowledged that the application of an upper age limit, in the case of the Motorised Transport Grant, was contrary to the Equal Status Act 2000 and on this basis it removed the upper age limit as a condition of entitlement under that scheme. It is clear that this decision was forced on the Department because of the upcoming hearing before the Equality Tribunal in the McNabola case which the Department expected to lose.
The Mobility Allowance scheme is very similar to the Motorised Transport Grant scheme in terms of its broad objectives and in that it is an administrative rather than a statutory scheme. Prior to June 2008, both schemes had an upper age limit in place. With the removal of the upper age limit in the case of the Motorised Transport Grant in June 2008, one might reasonably have expected that the age limit attaching to the Mobility Allowance would also have been removed. This did not happen.
At the time when this complaint was first communicated to the Department, on 3 February 2009, it had already acknowledged (some eight months earlier) that the inclusion of an upper age restriction in the Motorised Transport Grant was illegal. On this basis, the inclusion of the upper age restriction in the case of the Mobility Allowance (a scheme very similar to the Motorised Transport Grant) must also be illegal. It is remarkable that in its written responses to the Ombudsman (dated 30 April 2009, 2 November 2009 and 29 January 2010) the Department failed to address the issue of compliance with the Equal Status Act 2000. Nor did it acknowledge the strong recommendations of the Equality Officer (see Para.3.3 above), made on 9 February 2009, that the Department and the HSE review those allowances aimed at people with disabilities so as to ensure their compliance with the Equal Status Act. While the two Equality Officer decisions in question were found to be invalid on a procedural technicality, it is clear that the analysis of the Equality Officer would have been the same had the technical issue not arisen. There was an onus on the Department to act in accordance with the Equality Officer's analysis notwithstanding the fact that there was a procedural mistake in the manner in which the two cases were taken before the Equality Officer.
There is no argument, nor has the Department tried to make the argument, that the upper age limit in the case of Mobility Allowance is consistent with the Equal Status Act 2000. Thus, it is clear that the upper age limit applying to Mobility Allowance is illegal and has been since the commencement of the Equal Status Act in October 2000.
4.2 Resource Constraints and the Law
From the Department's perspective the Mobility Allowance, being a cash payment, may well be seen as something peripheral to its primary business. In recent years the Department has shed responsibility for other cash payments such as Disabled Person's Maintenance Allowance and Domiciliary Care Allowance; and the Department says there has been a decision, in principle, that responsibility for the Mobility Allowance will transfer to the Department of Social Protection. However, for as long as the Department retains responsibility for the Allowance, it is reasonable to expect that it will ensure that it operates in accordance with the Equal Status Act.
The Department is the lead Department in terms of promoting the welfare and life chances of people with disabilities; it has a Minister of State with special responsibility for equality, disability issues and mental health and it has, within the overall structure, a dedicated Office for Disability and Mental Health with its own Director.
While not acknowledging explicitly that the upper age restriction is illegal, the Department has defended indirectly its failure to remove the restriction with its comment (letter of 30 August 2009) that "it is not feasible to amend the scheme to remove the upper age limit in the current economic circumstances". In terms of human rights principles, this position suggests that human rights (in this instance, freedom from unfair discrimination) takes second place to issues of resource constraints. In this case, however, it is not simply a matter of human rights principles. On the Department's own admission, albeit indirectly, the upper age restriction is in breach of statute law (Equal Status Act). Current economic circumstances do not constitute grounds on which it might be acceptable for a public body to continue with a practice which is illegal.
The argument that changes required by human rights principles may be rejected because of resource constraints is not one which has found favour with the European Court of Human Rights. In its 2002 judgment in the case Willis v United Kingdom (dealing with unequal treatment as between widowers and widows in the UK social security system) the European Court of Human Rights agreed that the fact that resources were finite did not justify concentrating all the resources which were available on the protection of bereaved women to the detriment of widowed men. 
In fact, there is a general acceptance that vulnerable groups are more than ever in need of the protection of human rights principles in circumstances of economic crisis, such as currently prevail in Ireland. The Council of Europe's Commissioner for Human Rights, Thomas Hammarberg, has observed:
"The negative impact of the global economic crisis will hit vulnerable groups considerably harder [than others]. There is a major risk that it will be the weakest who will suffer the most ... We must not be complacent. The promotion of human rights is far too serious a question to be approached with half-measures."
There are parallels here with an issue raised in the Ombudsman's recent report to the Dáil and Seanad entitled WHO CARES? An investigation into the Right to Nursing Home Care in Ireland. That report concluded that the State, through the HSE and the Department of Health and Children, has failed consistently over decades to meet its legal obligation to provide long-stay nursing home care for older people. One of the arguments put forward by the Department in defence of its position was that the State cannot afford the costs of complying with its legal obligations. The Ombudsman in that case took the view that the negative consequences of disregard for the law by a public body are graver than any financial or administrative costs associated with observing the law. As the Ombudsman put it:
"... there is the fundamental point that continued disregard for the requirements of the law, even where that disregard may be well-intentioned, undermines the rule of law generally. On a more pragmatic note, the risks associated with neglecting to meet legal entitlements are high; in the longer term, the risk of litigation is real as the litigation currently under way shows."
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.
 Willis v the UK ECHR-IV,cited by the Irish Human Rights Commission in The Self-Employed and the Old Age Contributory Pension: Report on an Enquiry into the Impact of Certain Provisions of Social Welfare Legislation on the Self-Employed.(2006)
 “Ensuring human rights protection for everybody in Europe", Intervention of the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, 119th Session of the Committee of Ministers, Madrid, 12 May 2009 - cited by the Irish Human Rights Commission in Human Rights Guide for the Civil & Public Service (2010).
4.3 Reviews Promised
The Department has sought also to explain the failure to bring the Mobility Allowance into line with the Equal Status Act by saying that this was something which it proposed to review. In her letter to the Ombudsman, dated 30 April 2009, the Director of the Office for Disability and Mental Health said that
"it is intended to review the policy and operation of the mobility allowance prior to transfer [to the Department of Social and Family Affairs]. ... It is not envisaged that any changes will be made to the allowance prior to the review."
No timescale was given for the transfer of responsibility for the Allowance to the Department of Social and Family Affairs nor was a timescale given for the review.
In his letter to the Ombudsman, dated 2 November 2009, the Secretary General of the Department said that the
"Department is undertaking a review of the Mobility Allowance in the context of overall Government policy regarding supports for people with a disability"; and he promised that the "issue you have raised will be taken into account in the review".
The Secretary General undertook also to inform the Ombudsman of the outcome of the review "as soon as possible".
In his subsequent letter to the Ombudsman, dated 29 January 2010, the Secretary General said that the position was as outlined in the earlier letters. It appears that at that stage the review was still under way. At the time of writing (April 2011), there has been no further word from the Department regarding the outcome of the review.
In fact, the Department announced reviews of payments such as Mobility Allowance and the Motorised Transport Grant previously. For example, on 10 April 2001, a date after the enactment of the Equal Status Act 2000, the Minister for Health told the Dáil [PQ 10452/01] that
"my Department is currently undertaking an examination of the disability related allowances which come under its aegis and are administered by the health boards, including mobility allowance."
The Ombudsman is uncertain whether this review actually took place but, if it did, one would reasonably expect it to have taken account of the requirements of the Equal Status Act 2000.
In the light of the Department's decision of June 2009 to remove the upper age limit in the case of the Motorised Transport Grant; and of the strong recommendations of an Equality Officer in February 2009 that the Department (and the HSE) review "the various allowance schemes governing people with disabilities to ensure that they ... comply with the requirements of the Equal Status Acts"; along with correspondence from the Ombudsman since 3 February 2009: it is surprising that this promised review appears even yet not to have been completed.
On 3 December 2010, the Department published a document entitled Summary of Key Proposals from The Review of Disability Policy. The document summarises the key themes emerging from the work of an Expert Reference Group set up by the Department "to review current policy in relation to disability services". The work of the Expert Reference Group is intended to inform a wider "review of the efficiency and effectiveness of Disability Services funded from the Health Vote" being conducted "as part of the Government's Value for Money (VFM) and Policy Review Initiative". The Ombudsman appreciates that, following the completion of this review, there may well be a reconfiguration of disability services which might, or might not, involve changes to (or even the dropping of) the Mobility Allowance.
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.
4.4 Discrimination within the Over-66 Age Group
Under the Mobility Allowance scheme as currently constructed a person who, on reaching 66 years, is already a beneficiary will continue to benefit after the age of 66 years. This places such a person at an advantage over a person whose first application for the Allowance is made after reaching 66 years. In effect, this amounts to a form of discrimination within the over-66 age group. The Ombudsman is not aware of any specific ground on which such discrimination might be justified and thus regarded as a proper and acceptable form of discrimination.
This discrimination within the over-66 age group may not involve any one of the nine grounds of discrimination prohibited by the Equal Status Act (see Para.3.2). However, actions reflecting this discrimination are very likely to be actions which are "improperly discriminatory" in the sense in which this term is used in section 4(2)(b)(v) of the Ombudsman Act 1980.
4.5 HSE Role
In appealing the refusal of Mobility Allowance to his sister, Mr. Browne pointed specifically to the inequity (as he saw it) of the upper age limit:
"I therefore request that this application be revisited and all of her medical history, and all factors pertaining to her situation be taken into account, and in particular, her solitary isolation, only then can she be part of a just and equitable society. The fact that the sole determining factor used in rejecting this claim was her age, I find this to be incomprehensible and completely unjust."
The HSE Appeals Officer, in notifying his appeal decision, simply commented:
"I regret that as you do not satisfy the age criteria, I cannot be of assistance in regard to this appeal."
It is true that the HSE's decision to refuse the Allowance to Ms. Browne was correct in the sense that the conditions of the scheme were applied and Ms. Browne failed to satisfy one of them (the upper age limit). The question arises of whether the HSE is absolved of any responsibility to ensure that the scheme operates in a manner which complies with the law and, in this context, with the Equal Status Act more particularly. In strict legal terms, as the Circuit Court found, the Department must answer for any alleged defects in the scheme for which it is responsible. Nevertheless, and while it may have had no alternative but to reject Ms. Browne's case (and other such cases), one might reasonably expect that the HSE would have been making representations to the Department seeking to have the scheme made compliant with the Equal Status Act. These efforts by the HSE, it seems reasonable to believe, should have been made irrespective of the February 2009 recommendations of the Equality Officer and irrespective of whether the Equality Officer's recommendations arose from a process which was found subsequently to have been flawed procedurally. Furthermore, given that the issue of an age limit had recently been the focus of detailed consideration within the HSE and the Department in the case of the Motorised Transport Grant (in the McNabola case), and given that the Department had removed the age limit as a result of that consideration, one can very reasonably expect that the HSE should have been questioning the Department on the continued application of an age limit in the case of the Mobility Allowance.
The Ombudsman has no reason to believe that the HSE, in fact, made any such representations. In the absence of efforts to have the scheme changed to respect the requirements of the Equal Status Act, the HSE was allowing itself to adjudicate on the eligibility of Mobility Allowance applicants on grounds which it had reason to believe were unlawful.
 The Ombudsman provided the HSE with a draft copy of this report and drew attention, in particular, to the comments in Para. 4.5. The HSE chose not to avail of the opportunity to make representations to the Ombudsman in relation to her comments on the HSE’s involvement with Mobility Allowance.
4.6 Department - Reluctance to Act?
In the case of the Motorised Transport Grant, it is evident that it was only through the determination of Mrs McNabola, acting with the assistance of the Equality Authority and having commenced proceedings through the Equality Tribunal, that the upper age limit was dropped. As described at Para. 3.5, the Department failed to engage with Mrs. McNabola or with the Equality Authority which was acting on her behalf. The Department allowed the complaint to go unanswered which, apart from the discourtesy involved, forced the Equality Authority to refer the case to the Equality Tribunal. Following the referral of the case to the Equality Tribunal, the Department allowed a full seven months to go by before it engaged in any meaningful way with the issue raised. In fact, between June 2007 and June 2008 the Department failed to reply, other than by way of standard acknowledgment, to any of the various communications from the Equality Authority and the Equality Tribunal.
The impression one gets from the conduct of this present investigation, and from the relevant files dealing with the related McNabola case, is of a Department which is struggling in its attempts to reconcile the requirements of the law with the constraints imposed by the limited availability of funding and by its own organisational arrangements. While the Department may well be acutely aware of the difficulties facing people with disabilities, its apparent inability to respond to specific situations (the Mobility Allowance issue, for example) leaves it open to the charge that it lacks a sense of urgency in tackling such issues. It leaves it open also, in this particular case, 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. The Ombudsman is not stating that this is her conclusion; nevertheless, she recognises that others may feel compelled to reach this conclusion.
Unfortunately, the Department’s actions, both in the course of this investigation and in the course of the McNabola case, have contributed to the negative perceptions mentioned above. The Department’s own reputation and integrity would have been much better served in these instances had it speedily and comprehensively explained the difficulties it faced and then taken action to deal with the issues raised.