Error in extracting nursing home fees admitted

Last night's statement by the Department of Health will be grist to the mill for those critics who despair at the way things …

Last night's statement by the Department of Health will be grist to the mill for those critics who despair at the way things are done in Hawkins House.

It concedes that the Department failed to act promptly on warnings about the legality of charging medical-card patients for their stay in public nursing homes.

The Department confirmed that it received legal advice from the South Eastern Health Board in March 2003 that there was a serious question mark over such charges.

The financial implications of this legal opinion for the State were enormous.

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Without such charges, the Government was effectively faced with having to provide nearly €100 million in additional funding to health boards.

However, the former minister, Mr Micheál Martin, has said this advice was never given to him.

The Department statement last night said the opinion was discussed with the health board and considered over a period of months as part of a review of eligibility arrangements.

Last December the Department raised the issue of charges in public facilities with the health board chief executives. A small group was later convened in the Department to prepare a position paper on the legal issues prior to seeking advice from the Attorney General.

However, due to other pressures, such as the major reform programme, the EU presidency and service issues, it was a further 10 months before the Attorney General was consulted.

To be fair to the Department, controversies related to the reforms, accident and emergency services, the disabled or a plethora of other issues could, on any other day, have blown up into a political crisis.

In such a scenario the Department would have been criticised for not concentrating on solving the problem of the moment.

So it would be unfair to claim, as it critics sometimes do, that the Department of Health is perpetually accident-prone.

However, on this occasion it does have questions to answer.

All the signs are that, long before the South Eastern Health Board's legal advice, the Department was aware that the charging of older people with medical cards for nursing home care was legally unsafe.

While Ministers have claimed they only became aware of the issue in recent weeks, the Department of Health was repeatedly warned from the 1980s onwards that it needed to be addressed.

Officials in the Ombudsman's office have confirmed they received complaints in the 1980s and 1990s on the subject and went on to raise the matter with health boards and the Department of Health.

Older people argued that under regulations signed in 1976 they were entitled to nursing home care in State-run institutions. The Department argued at the time that such an entitlement was unclear.

The issue went unresolved and became a common complaint throughout the 1990s, eventually giving rise to an Ombudsman's report on nursing home subvention, which again raised question marks over the charging of older people with medical cards.

When the Government issued free medical cards to all over-70s, legal opinion suggested the move meant it was now clear that older people were being illegally charged.

Following inquiries from the Ombudsman on behalf of three patients in 2002, two health boards ceased charging the complainants. Despite this, it appears other older people continued to be charged.

The Government is hoping its €2,000 payments to 20,000 people who have had their pensions deducted will be enough to deal with the issue.

It is unlikely, however, to appease thousands of others who feel they paid much more than this over the years.