State could not support withholding of disability allowance payments, says Taoiseach

The State “didn’t have a leg to stand on” in relation to a decision to withhold disability allowance payments from people in care according to legal advice, Taoiseach Leo Varadkar has said.

Mr Varadkar said the Government will examine the issue, but stressed it was different from the nursing home charges strategy.

An RTÉ Prime Time report on Tuesday said up to 12,000 vulnerable people had been denied disability allowance payments by the State. It outlined a government memo from 2009 putting the cost at €700 million.

The report comes after a protected disclosure made by a whistleblower, published in the Mail on Sunday, revealed a Department of Health 2011 memo purporting to set out a legal strategy to thwart refunds of potentially billions of euro to people wrongly charged for nursing home care over 30 years.

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Speaking during Leaders’ Questions in the Dáil on Wednesday, Mr Varadkar said there was a difference between the nursing home strategy and disability allowance payments, and that the issues were being conflated.

“The historic nursing home charges and the issue of the DPMA [Disabled Persons Maintenance Allowance] – they are different and the legal advice is different. The legal advice in relation to DPMA was that the State didn’t have a leg to stand on,” he said.

[ Nursing home charges: Government’s defence of legal strategy rejected by former investigator ]

[ Q&A: Controversy around State’s legal strategy on refunds for nursing home charges ]

[ Nursing home charges: Varadkar defends strategy aimed at containing State’s potential liability ]

“The legal advice in relation to the nursing homes is that those charges were not illegal and that’s never been established.”

Sinn Féin leader Mary Lou McDonald said the revelation in relation to the disability allowance payments was “another strategy to conceal, to deny, to cover up, to protect the Government, instead of protecting vulnerable citizens”.

“The story of these strategies is a sordid tale of successive governments involving Fianna Fáil, Fine Gael, the Labour Party, the late Progressive Democrats, actively working against the interests of some of our most vulnerable citizens,” she said.

Labour leader Ivana Bacik said the State’s approach to litigation was “indistinguishable from any faceless private corporate entity – it’s a war of attrition against those who dare to sue it”.

Ms Bacik called on the Government to re-evaluate the role of the Attorney General, and said it “wasn’t right or transparent” that Ministers can “hide behind unpublished legal advice” given by that office.

“There is a case to be made for the secretaries general of all government departments to be brought before the Public Accounts Committee to attest to the legal strategy in place in each government department as regards State litigation,” she added.

Separately, in relation to the nursing home strategy, Mr Varadkar said it had been suggested that a 2016 document which referenced “the minister” referred to him, since he had held the Health portfolio at the time.

However, he said it had now been established that it referred back to the minister in place in 2014, before he had taken office that summer.

“A document that appeared in the papers yesterday in relation to 2016 – we have confirmed from the Department of Health that I was not circulated on that document,” he said.

“The agreement between the minister and the AGO [Attorney General Office] was not – I was not the minister that made that agreement. It was a 2014 agreement.”