Wednesday, 15 June 2005
Seanad Eireann Debate
Minister of State at the Department of Justice, Equality and Law Reform (Mr. Fahey): I intend to review the provisions in section 13 to examine if it can be expanded with a view to delivering more information on the area of unmet needs. This is due to what Senator Terry said yesterday. I appreciate her concerns in this area. An improvement will go some way towards meeting those concerns by giving us more comprehensive information to enhance services. If possible, I hope to introduce an amendment on Report Stage, after consultation with the Parliamentary Counsel. On reflecting on the points made by Senator Terry yesterday, I am prepared to consider an amendment to try to accord with the views she expressed.
I speak on behalf of the Labour Party. Senator Tuffy has done and continues to do sterling work on the Bill. For the information of the Minister of State and the House, Senator McCarthy and I will manage the business on our side today.
The amendment relates to section 14, which deals with complaints regarding assessments or service statements, an important section of this important Bill. The area of assessments and service statements is critical for the person with disability in regard to accessing the services required and meeting needs, which one would hope and I assume, from all the Government has said, is the intention of the Bill. The issue of assessments and service statements is, therefore, one of the core elements of the Bill.
The amendment seeks to insert a new paragraph after paragraph (b) above which will read: “(b) the contents of the assessment;”. We seek to allow an applicant the right or facility to have an appeal against the contents of the assessment. The section as currently drafted only permits an appeal in regard to a contention that the assessment was not conducted in a manner conforming to standards set under section 9.
This is a vital amendment, indeed, we contend it is one of the most important amendments to the Bill. The existing wording is inadequate because it prevents any appeal against the contents of the assessment. The amendment would allow such an appeal. We believe it is fundamental that this facility would be available to the applicant under the Bill. Without the amendment, the Bill is inadequate and undermines the rights of an applicant.
The whole area of an appeal against an assessment is an important one. I would like the Minister to consider that the section, as drafted, is not adequate to meet the spirit of the Bill as set out. The amendment is put down in an attempt to be helpful and to allow the Bill to be as powerful as it can be. In particular, it is to ensure that the needs of the person making the application, who should be at the heart of the legislation, namely, the person with a disability, are fully met. The concept of the appeal and the manner in which an appeal can be made are important in that regard. I look forward to the Minister’s reply.
Mr. Kett: There is reasonable merit in Senator O’Meara’s comments. The assessment, while it is not resource driven, is key to the requirements in the first instance. I accept there is provision to disagree with the service statement if one so desires. However, if a person disagrees with an assessment, irrespective of the resources provided, that is a major problem, leaving aside what might happen thereafter. When a person disagrees fundamentally with the evaluation by the individual or individuals involved, that person is on a loser, irrespective of the service statement or what resources are provided — resources are a separate issue. I accept the point made by Senator O’Meara in this regard. It is a matter that could be considered by the Minister.
Mr. Norris: I support Senator O’Meara. This is an important point. It is instructive, interesting and perhaps indicative that Senator Kett has found himself in large measure in agreement. Perhaps this indicates the Government may be prepared to look again at the issue. While it is useful that people can challenge on the basis that procedures were not fully followed, the contents of the assessment are the core of the entire matter.
I wish to raise a parallel issue, one where the issue of the contents of an assessment might be raised, but which has not been dealt with satisfactorily. I refer to the inclusion of people with multiple sclerosis in the definition of disability. Such people might seek an assessment but they would in many cases want to challenge an assessment, multiple sclerosis being a particular kind of disease from which there can be periods of remission.
The exclusion of people with multiple sclerosis from the definition of disability, which seems quite deliberate on the part of the Government, is greatly worrying and will lead to circumstances where they will almost invariably want to challenge the contents of the assessment. I put it to the Minister of State that the United Kingdom in its legislation had a very similar definition which excluded multiple sclerosis, but it had to change it. In other words, it changed legislation similar to that we are now introducing. In any case, we will probably have to change this legislation eventually as a result of pressure and the public highlighting of the issue.
The Multiple Sclerosis Society of Ireland wrote to the Minister asking for this disease to be included in the definition of disability but it has not received a reply — perhaps I should say the society wrote to the Department as I do not know the Minister has seen this correspondence and do not want to antagonise him by suggesting that. For that reason, I intend to put down an amendment on Report Stage to include multiple sclerosis in the definition of disability.
Ms O’Rourke: Like Senator Kett, I believe the amendment deals with a very important issue, as the contents of the assessment will decide what happens to a person. If the contents of an assessment are deficient or unsuitable in the eyes of the applicant or the person seeking the service, that person is not going anywhere in regard to getting his or her due rights. Members on this side of the House will not vote against the Minister because he has shown much common sense in dealing with the Bill, and put much thought into it. However, I urge him to consider this important matter.
The Bill is meant to be applicant centred or customer centred, or whatever is the friendly terminology used in it. While this may be so, if the contents of an assessment are not to the liking of an applicant, where is that person going in regard to getting his or her due rights? I urge the Minister to think strongly about this matter.
I am also very concerned about the point raised by Senator Norris. The Multiple Sclerosis Society of Ireland has been in touch with me and I presume its concerns relate to the definition of disability in the Bill which states that the person must have an enduring physical, sensory, mental health or intellectual impairment. As Senator Norris said, relapses and remissions can occur in cases of multiple sclerosis and other conditions. This is why this amendment is very important, so that a person would be in a position to challenge the assessment and have it reexamined. I hope the Minister of State takes Senator Kett’s advice on board because he has a considerable amount of experience in dealing with people with disability. The amendment would be an additional improvement to the Bill.
Mr. Fahey: I appreciate why Senators want this change which, at face value, seems like an important improvement to the Bill. However, the requirement is provided for in the Bill when one considers the overall provisions. Amendment No. 29 seeks to insert a further ground for complaint in respect of the contents of the assessment. However, people who consider themselves as having a disability can apply for an assessment, as outlined in section 9(1). Those who apply for an independent assessment will receive one and there is ground for complaint under section 14(1) if they do not.
With regard to the content of the assessment, it is important to note that the assessor is an independent officer and there is no reason he or she will not make an assessment in association with the person applying to that person’s satisfaction. The assessment will be carried out without any regard to the cost of providing the services identified and in accordance with the standards set down by the Health Information and Quality Authority. This new body will be established to set the standards for the legislation and the services provided under it. If the assessment officer does not comply with the standards, as laid down by HIQA, there are then grounds for complaint. In that specific area, the contents of the assessment are covered because it is carried out in accordance with those standards, which will be very detailed and will spell out exactly what will be in the content of the assessment, among other matters.
In addition to this section, there are other provisions in the Bill which will ensure standards are adhered to and that the involvement of the relevant expertise is taken into account in the assessment process. Section 9(8) allows for the applicant to seek a further assessment if there is a material change in his or her circumstances, if further information about personal circumstances or services becomes available or if there is a mistake of fact in the report. The assessment officer’s ethos is to represent the interests of the individual. As I said yesterday, the statutory independence given to the assessment officer means that he or she stands apart from the system and therefore has a completely different role from the service statement and liaison officer.
Senator Norris made a point, supported by Senator Henry, regarding the enduring nature of a condition. This has been catered for in the Bill and we have made amendments with regard to the definition of disability in order to ensure there is no question regarding the difficulty for people who have disabilities of an episodic nature. We have widened the definition of disability to ensure that a person who, for example, suffers from bipolar depression of an episodic nature, is provided for under the terms of the legislation. While I appreciate the spirit behind this amendment and its support from all sides of the House, I do not believe it is necessary to have a situation where the contents of the assessment need to be appealed.
We must ensure that the legislation is person-centred, consumer-friendly and not hugely bureaucratic. There is a fear that an additional appeal on the contents of assessment, which is independent and not reliant on resources, would introduce an opportunity for greater bureaucracy. We do not want that to happen. Rather we want a situation whereby a person can go to an independent officer, who has no respect for resource provisions, have his or her assessment done and get on to the next stage where the liaison officer takes the assessment and puts in place a service statement outlining the required services.
Ms O’Meara: I am disappointed with the Minister of State’s response. I had hoped, in light of what his Government colleagues had said, that he would see that the amendment is necessary and would strengthen the legislation.
The Minister of State is describing an ideal world where a person applies to an independent assessment officer, the assessment is done and everything is perfect. I genuinely hope that is the case in practice and that people will be satisfied with their assessment; I have no doubt this will happen in the majority of cases. However, we do not live in an ideal world and we aspire to perfection. There is a very strong desire on behalf of authorities in the public service to deliver an excellent high-quality service in this area which is applicant, customer and client-centred. However, even in an ideal world this does not always happen. The amendment is designed to provide for the rare occasion when somebody is not happy with the contents of the assessment and feels that it does not adequately or correctly reflect his or her situation. It gives people the right to appeal. The Minister claims this is taken care of in the overall context of the Bill, but he has not stated where it is specifically provided for. My understanding is that it is not and that is the reason for our amendment, particularly in the context of section 14 regarding complaints on assessments or service statements.
It is important, in order to build confidence in people with disabilities in the operation of this legislation and the new system, to bend over backwards to accommodate them and give them an opportunity to have their case stated and ensure their assessment reflects their needs. I would have thought this amendment underpins that desire. Without it, the Minister is leaving out something fundamental. According to the description the Minister gives, the contents of the assessment would not need to be appealed. In an ideal world that would be the case and that would be wonderful. Perhaps this will only apply to one out of a hundred or a thousand but the principle contained in the legislation is that it would be possible to alter the assessment and that is the essence of this amendment. It would strengthen the legislation.
I am disappointed with the Minister’s response and ask him to do two things. Can he point out precisely where the legislation caters for this scenario? I also request that he take on board the views of all Members of this House.
Mr. Kett: I will not belabour the point as I have listened to the Minister. The person making the assessment is gleaning information from the applicant or from his or her advocate. One can imagine a situation whereby an applicant would be nervous before the assessment and forgets some piece of information needed by the assessor in order to make an absolute assessment. On realising that something has been omitted the applicant may wish to revisit the assessment but there is no scope for it to be altered in any way.
Mr. Fahey: There is scope for that. There seems to be a misunderstanding on the part of Senator O’Meara. If one considers section 9 on page 14 it answers the point Senators O’Meara and Kett have made. Section 9(8) states:
If the applicant forgets something this section allows him or her to submit the information later. The section provides for continual updating of assessment because people’s needs will change. In the case of early intervention, if a child is assessed as having a certain disability at the age of two, the child’s situation will have changed at the age of three and there will be a need to update the assessment. Assessments are not set in stone without further consideration. The Bill provides for revision of assessments.
In addition, the assessment is guided by standards that ensure uniformity. The best way of ensuring quality and accuracy is the standard that will be laid down and that will provide a level playing pitch. We must ensure all assessments comply with standards laid down and if standards are not complied with, an applicant can complain and a complaints officer can recommend a further assessment in accordance with standards. This will provide for the point raised by Senator O’Meara.
The level playing field to which I refer is a reassurance that assessment officers must work to the same set of standards developed by HIQA. The HIQA interim board was established earlier this year by the Tánaiste and I am confident it will play an important role in supporting quality assessment delivery. If we did not have this there could be a need for this amendment but as we have detailed standards set down we do not need the additional appeal procedure suggested by the Senator, which is provided for in section 8 in any case.
Dr. Henry: I think the Minister is correct in not making the Bill too prescriptive. This would lead to great problems with exclusion of people one felt were included. The Minister’s example of bipolar disorder was a good one. An enduring disability means that the underlying condition is enduring and not that one must have the symptoms or signs of the condition at the time.
People with disabilities are more likely to live in poverty and to be excluded from the community. The thrust of this Bill is to ensure they are helped but also that society be helped with the inclusion of more people in the life of the State, for example, in the fields of work or culture. This is of benefit to all of us. The points made by Senator O’Meara, supported by Senator Kett who has experience in this area, are worth considering and I hope the Minister notes these and accepts the amendment.
Ms O’Meara: I thank the Minister for his response on where this point is covered in the legislation. I am examining section 8 and I believe there is a qualitative difference between the right to make an appeal and making a new application. We may be dancing on the head of a pin in respect of this matter so I will take time to consider his response. It is likely this amendment will be resubmitted on Report Stage and I ask the Minister to reconsider this issue in light of what has been said today.
Ms O’Rourke: I am glad Senator O’Meara may table this amendment on Report Stage. I see the amendment as more fundamental and simpler than the provision in the Bill. It is more fundamental to the person being assessed and it relates to the point of interaction, where the person is assessed and realises the assessment does not meet his or her needs. Rather than addressing clinical matters it deals with the situation where an assessor does not understand what is wrong with the applicant and what he or she needs. There is great merit in the amendment.
Mr. Kett: The Minister replied to the point I made and the provision in section 9(8) goes some distance towards resolving the issue I raised. I do not see any danger in the amendment tabled by Senator O’Meara. There is merit in subsection (8)(c).
Mr. Fahey: These Government amendments, built on amendments made in the Dáil, respond directly to the specific proposal made to the Taoiseach and me when we met the DLCG on 25 May 2005. The group was anxious to ensure that, in addition to recommending an assessment or a service, a complaints officer would also be able to specify the timing of the provisions. If the complaints officer could not make a recommendation about the timing of the assessment or service provision, a person who had made a successful complaint could find himself or herself at the end of the queue again for a recommended assessment or service. In response to those concerns I am pleased to bring forward Government amendments Nos. 31 to 34, inclusive, which allow the complaints officer to specify a timeframe for delivery in his or her recommendations. These amendments represent a significant tightening of the provisions to safeguard the applicant. I am particularly pleased that the positive dialogue with the DLCG has produced this enhanced provision.
Ms O’Rourke: Well done to the Minister of State, as well as to the Taoiseach and the lobbying body. The amendments will make the legislation more precise. The thrust of many amendments to the Bill has been to tighten it up to show that the end product can be delivered in a more precise way.
Ms Terry: Will the Minister of State explain how independent a complaints officer can be as an employee of the Health Service Executive? Would it not be better and more independent if that person were outside the Health Service Executive, or even from another health service area? This would strengthen the legislation and ensure that complainants really would get an independent assessment. Nobody wants to question how independent an individual may be, but safeguards should be provided. In this context, has the Minister of State considered whether the independence of a complaints officer might be better served if he or she came from outside the relevant health service executive area? Perhaps an ombudsman could be appointed in this regard.
Mr. Fahey: The complaints officer is a statutorily independent post in the same way as the assessment officer. As I pointed out yesterday, for example, officers of the Department of Social and Family Affairs are statutorily independent. That they are employed by the Department of Social and Family Affairs does not, in any sense, take away from their independence in performing duties, irrespective of the views of the organisation within which they work. The same scenario applies in the case of a complaints officer. In fact, we removed a significant hurdle from the Bill whereby decisions of complaints officer could be appealed by chief executive officers of the former health boards. In order to ensure transparency and less bureaucracy, we decided to remove that provision altogether. The current situation is that a decision of the statutorily independent complaints officer will now go to the appeals officer. The latter is also statutorily independent of the Department of Health and Children, under the provisions of Part 2.
Although we will be dealing with this matter in the next section, a suggestion was made to provide an option of the Ombudsman being the appeals officer. That suggestion was, however, rejected by the DLCG. There is independence in respect of the whole system and the complaints officer is a part of that.
I listened with interest to the Minister of State’s response to Senator Terry concerning the independence of the complaints officer. His comments are relevant in the context of this amendment which concerns the appointment of the appeals officer. The amendment seeks to have the appeals officer “appointed by the Ombudsman and accountable to” the Ombudsman. This proposal has been suggested to us by people with long experience of working in the area of disability as an important way of underpinning the independence of the appeals officer. I am not saying that just because somebody has been appointed by the Minister it means they are not independent. The perception is important, however, and the community must have total confidence in the appeals officer. If the latter were appointed by the Ombudsman it would underpin that independence. From the outset, it would ensure that the appeals officer is totally independent and, in particular, independent of the political system. That simply reflects the daily reality with which we must all deal. I would like to hear the Minister of State’s response to the amendment. He should consider the matter favourably.
Ms Terry: Had I realised that this amendment was forthcoming, I would not have said what I did concerning the previous one. I wish to support the amendment, which reflects the importance of the complaints officer’s position being totally independent. I favour the appointment of a complaints officer being made by the Ombudsman. If we leave the complaints officer in the position as outlined in the legislation, we will have somebody who is employed by the Health Service Executive and, therefore, it will be like an internal inquiry. I wonder how transparent and accountable it will be if somebody employed by the Health Service Executive is the complaints officer. No matter how independent the Minister of State may say such officers will be, once they are in that position they cannot ultimately be totally independent. The amendment would address those concerns so I am asking the Minister of State to accept it.
Mr. Fahey: The answer to that question is to be found by looking at the independence of officers in other Departments across the spectrum, from social welfare to employment appeals and the Inspector of Mental Hospitals, who also comes within the remit of the Department of Health and Children. There is no question but that that post is completely independent of the Department. The same applies to An Bord Pleanála — a body established by the Department of the Environment, Heritage and Local Government, which is answerable to and funded by that Department. Therefore, there is no issue concerning the independence of statutorily appointed officers.
I do not envisage that the appeals officer will be accountable to the Ombudsman, as the amendment suggests. The redress mechanisms in the Bill are designed to be independent and transparent. I do not think the particular approach of this amendment would strengthen or improve the Bill’s provisions.
On Committee Stage in the Dáil, I indicated that the DLCG had been offered the option to replace access to the appeals officer with access to the Ombudsman. This would mean that individuals would instead appeal to the Ombudsman from a finding or recommendation of the complaints officer under Part 2. The DLCG indicated its preference for an independent appeals officer, which allows, as a last resort, access to the Circuit Court for a notice to enforce the determination of the independent appeals officer. The mechanism also provides for resolution of appeals through mediation, where appropriate, and mediation settlements can also be subject to enforcement.
The system proposed is in line with the quasi-judicial system in other sectors, and would allow for initial complaints to be dealt with by statutory officers and for their decisions to be appealed to higher bodies with a possibility of a review of those decisions. Accordingly, I do not propose to accept the amendment.
In response to my offer on Committee Stage in the Dáil, the DLCG indicated at the recent meeting with the Taoiseach and myself its concerns about the locus of the appeals officer and its preference that it would fall under the aegis of a Department other than the Department of Health and Children. It suggested my Department in particular. It is the norm that such quasi-judicial appeals mechanisms are independent and operate under the aegis of the relevant Department for the sector. In the case of my Department, the remit for the independent refugee appeals tribunal deals with claims for asylum seekers in accordance with international standards. Placing the independent appeals officer under the locus of my Department would not make administrative or legal sense. It would not be appropriate to the subject matter, the issue of health and personal social services.
The system works well whereby the independent quasi-judicial appeals mechanism operates under the Department with overall responsibility. I have no doubt that the appeals officer in this case will be fully independent of the Department. The moral strength of the Ombudsman is greater than that of any appeals officer, which is why I offered the option of the Ombudsman as the appeals officer. However, for its own best reasons the DLCG decided to retain the present system even though it requested that the appeals system fall under a different Department, which I cannot accept.
Mr. Fahey: If the DLCG were satisfied with my amendment, I would be happy to propose it. Senator O’Meara’s amendment is separate. One cannot have both the Ombudsman and an appeals officer overseeing the appeals mechanism. I cannot accept that.
Ms O’Meara: I am picking up on the general remarks of the Minister of State, on his views as expressed to the DLCG. If the Minister of State holds a particular view, why not go with it? As the Minister of State, he is in charge. We are Members of the Seanad, one of the Houses of the Oireachtas. Ultimately, we in the Houses are responsible for the legislation. My understanding is the DLCG is a consultative body which offers a particular view. I am not suggesting the Minister of State oppose it on all fronts, but if it is his considered view that the moral authority of the Ombudsman, along with the structure and standing of that office, would work in the context of this legislation on the appeals side, I invite him to follow through on that.
Mr. Fahey: The DLCG prefers the appeals officer mechanism because it gives the right to appeal to the Circuit Court on a point of law for a notice to enforce the determination of the appeals officer. That does not apply in the case of the Ombudsman, whose views are final. the Office of the Ombudsman has been one of the great developments of public service provision because no Department in its right mind would oppose the Ombudsman’s moral authority.
This amendment refers to the timeframe in which an applicant or a person may appeal to the appeals officer. The legislation provides that the appeal should be made within six weeks of the date on which the finding or recommendation to which it relates was communicated to the person. My amendment suggests that six months instead of six weeks should be allowed.
If we do not make that change we could be denying access to appeal for a person who may be unable to make an appeal within the shorter timeframe. A person might be very ill, and incapable of making an appeal within that timeframe. That person would then in effect be denied the right to appeal a decision with which the person felt unhappy. A period of six weeks is very short for some people, though it might be adequate for the majority. Anyone unhappy with a recommendation would probably want to appeal it straightaway but, as we said earlier, we are dealing with sensitive situations, with people who may, at a particular time in their lives, have limited capacity. Someone suffering from severe depression, for example, might not be able to make an appeal within the six-week timeframe. If that were the case, we would be doing such people an injustice. I ask the Minister of State to consider accepting the amendment and extending the timeframe to six months.
Ms O’Meara: I support Senator Terry’s amendment. Amendment No. 37 also seeks to strengthen the rights of the applicant. The amendment suggests the insertion on page 21, subsection (12), line 13, after “appropriate”, the words “and shall, where requested by the applicant,”. That part of the subsection would then read: “The appeals officer may, where appropriate, and shall, where requested by the applicant, hold an oral hearing for the purpose of an appeal under this section”.
Rather than leaving it entirely up to the appeals officer to decide if an oral hearing should take place, this would allow for an oral hearing to take place if requested by the applicant. I suspect that the Minister of State will say that an applicant who asks for an oral hearing is very likely to get it, which is what happens under the social welfare appeals structure. However, the amendment would strengthen the rights of the applicant. Considering the spirit of this legislation and that we are seeking to give people with disabilities a sense of their own power, to give them an initiative, the amendment would be an important element of the legislation.
Mr. Kett: This amendment is catered for in section 18(4) which states, “The period referred to in subsection (3) may be extended by the appeals officer concerned (at the request in writing of a person referred to in subsection (1) or (2)) for a further period not exceeding 12 weeks...”. That brings the period to three months in certain circumstances, which caters for what this amendment seeks. There must be a cut-off point at some stage as to when people are at liberty to appeal, unless there are extreme circumstances, which I cannot imagine. The period of six weeks to lodge an appeal seems reasonable. I accept Senator Terry’s point that certain circumstances could arise where this would not be adequate, but the three months provided in subsection (4) would cater for that.
Ms O’Rourke: I echo that view. The clause following the one referred to by Senator O’Meara provides up to three months for making the appeal. The system will get snarled up forever if we extend it to six months as people with new assessments will be waiting for consideration, etc. The idea is to simplify matters and keep appeals running without a snarling up of affairs. Three months is adequate. In other matters the usual period for an appeal is three weeks to a month. This area is somewhat different, but the period proposed is adequate. We do not want a logjam to develop where other applicants would get snarled up also. Three months is fair to provide parity and justice to each applicant.
Mr. Fahey: On Report Stage in the Dáil I moved a series of related amendments to allow a limited extension of the timeframe for appeals in exceptional circumstances. Subsection 18(4) allows the appeals officer discretion to extend the period for an appeal on a case-by-case basis where there is reasonable cause shown.
Mr. Fahey: It was an amendment. Amendment No. 36 seeks to extend the timescale from six weeks to six months. I see no benefit in extending the period of appeal for such a long time. The time period in the Bill is in line with other legislation. The Government amendments made in the Dáil on Report Stage struck a fair balance between what is envisaged by the Senator and the provisions of the Bill as published. In the circumstances, I do not propose to accept the amendment.
Section 18(12) provides for an oral hearing of an appeal at the discretion of an appeals officer. Amendment No. 37 would oblige the appeals officer to hold an oral hearing if requested by the applicant. Given that the appeals officer is an independent statutory officer empowered to administer the appeals process under Part 2, it is for him or her to make the decision as to whether it is appropriate in a particular case to hold an oral hearing. Allowing an applicant to an appeal to oblige the appeals officer to follow a particular procedure does not seem consistent with the concept of an independent statutory officer. The rights of the other party in the appeal must also be considered.
Another relevant point is that section 18 allows the appeals officer considerable discretion in matching procedures to the circumstances in each case. This provision goes a long way towards ensuring that the needs of the applicant are taken into account. The overall principle with regard to appeals is that the appeals officer has statutory responsibility for the appeals process and must be fully in charge of its administration. As Senators O’Rourke and Kett said, we have tried to reach a fair balance through the amendments we agreed with the Opposition parties in the Dáil. I do not intend to make further alterations.
Ms Terry: I am disappointed the Minister of State will not accept my amendment. I recognise that subsection (4) provides that a person may apply for an extension of up to 12 weeks. That is reasonable for the majority of people, but I seek an allowance for the minority who may not even have the capacity or be in a position to write the letter to seek the extension. I want an extension of the period to six months to allow them time to recover somewhat from their illness. I will probably submit this amendment again on Report Stage and I urge the Minister of State to consider it in the meantime in the context of dealing with a minority under this section.
Mr. Fahey: If a six-month timescale was allowed for making appeals, both the applicant and the executive or education service provider could delay lodging an appeal. We are trying to ensure we cut out long delays and bureaucracy. This is critical to the ethos of this Bill. A six-month appeals period would delay the resolution further and it would be the applicant who would suffer most from the delay. I point out that if there is reasonable cause for an extension of the timescale, subsection (4) allows for a further period, not exceeding 12 weeks, which would give a maximum of 18 weeks for the appeal. Therefore, this is adequately covered.
In light of our earlier discussion, will the Minister of State clarify whether there is a judicial remedy against a decision of the appeals officer? I think he implied there was when we were discussing the ombudsman. I would like clarity on whether it is possible to appeal the decision of the appeals officer to the Circuit Court. If that is the case, there is provision for judicial remedy.
Mr. Fahey: This amendment would allow for an appeal to the District Court on the facts established by the appeals officer. Section 20 provides that appeal to the court will arise only on a point of law to the High Court. This approach is consistent with practice in other statute-based appeals systems, such as planning and social welfare. It provides the advantage that the system of appeals is independent, transparent and has strong statutory powers. It allows people to take an appeal with full confidence of due process and a fair hearing and without incurring the costs of a court action.
The proposed amendment would undermine the strength of the appeals officer by instituting a third layer of review in addition to appeals and complaints. I am aware the Opposition favours general redress to the courts, but I do not hold that view. The appeals process in the Bill as it stands provides a user-friendly and accessible redress for people with disabilities and their families. These amendments represent a fundamental difference of approach between me and the Opposition Senators. In the circumstances, I must strongly reject the proposed amendment.
Government amendment No. 39:
Amendment agreed to.
Section 21, as amended, agreed to.
Ms O’Meara: I move amendment No. 40:
This amendment relates to section 22 which deals with the enforcement of determinations, etc. The amendment seeks to insert a new subparagraph which would provide for a remedy for the enforcement of a service statement. It may seem like a small thing, but I suggest it is very important. This amendment, which proposes that a remedy will be provided for in section 22 of the Bill in the event of the executive or the head of the relevant education service provider failing “to implement a service statement”, strengthens the legislation considerably. I look forward to a positive response from the Minister of State.
Mr. Fahey: Senator Terry expressed concern yesterday about the timescale for the assessment of urgent cases. Having considered the matter further, I am prepared to review the regulatory provisions in section 21 to ascertain whether further provision can be made in this respect. I will consult the Office of the Chief Parliamentary Counsel to see whether it will be possible to introduce an amendment in this regard on Report Stage. I cannot respond further to the points made by Senator O’Meara, unfortunately.
Ms O’Meara: I do not understand the essential point made by the Minister of State. I do not know why he cannot respond further.
Mr. Fahey: I mean that I cannot accept the Senator’s amendment.
Ms O’Meara: Why not?
Mr. Fahey: If amendment No. 40 is accepted, a person will be able to seek a court enforcement order, without having prior recourse to the complaints or appeals processes, if the executive or the head of the relevant education service provider fails to implement a service statement. Such a person could bypass the complaints procedures provided for in sections 14 and 15 and the appeals procedures outlined in section 18. I do not propose to accept the amendment. Applicants do not have to exhaust the entire redress process before seeking an enforcement order. Such an order may be sought in respect of any recommendation of a complaints officer that has not been made subject to the appeal. It would not make sense to allow people to bypass the complaints and appeals mechanisms. It will be possible for issues to be resolved in the first instance, for example by way of informal resolution on the part of the complaints officer.
Amendment, by leave, withdrawn.
Section 22 agreed to.
Sections 23 and 24 agreed to.
Ms Terry: I move amendment No. 41:
I welcome the provision in this Bill which states that all public buildings, including existing buildings which come into public use, have to be accessible to people with disabilities. Amendment No. 41 is a simple proposal aimed at ensuring that public buildings are in compliance with this provision. It proposes that each public building should be the subject of an access certificate, issued by the building control officer of the relevant local authority, just as fire certificates have to be secured for each public building from such officers. The issuing of access certificates should be compulsory under this legislation, in the interests of ensuring that public buildings are in compliance with Part M of the building regulations. The acceptance of this amendment would strengthen the legislation by ensuring that public bodies — I am especially interested in bodies which provide a service — ensure their buildings are accessible to people with disabilities. The amendment seeks to ensure that such buildings will be monitored periodically to ensure they are in compliance with their access certificates.
Mr. Kett: Given that the Government is trying to save resources, where possible, it seems to me that it would be appropriate to give responsibility of this nature to the health and safety officers who are normally employed in all organisations. Such officers are employed to deal with any problems or dangers which may arise in organisations, including organisations which are involved with people with disabilities. I wonder whether health and safety officers could be asked to ensure that buildings are in compliance with the regulations which have been introduced in the interests of people with disabilities. Safety considerations arise if a building is not in compliance with the regulations. Would it be possible to give health and safety officers a role in this regard?
Ms O’Meara: I support Senator Terry’s amendment No. 41. I remind Senator Kett that the ideal conditions to which we all aspire are not being achieved under the current regime, which is quite strict. I could give many examples of buildings which are inaccessible to people with disabilities because they are not in compliance with the relevant regulations. The provisions of amendment No. 41 would be a useful addition to this Bill, which aims to help people with disabilities to participate to the fullest possible extent in every level of society and every part of the community. The acceptance of the amendment would underpin the spirit of the legislation. Senator Terry’s suggestion that building control officers be given responsibility for the periodic monitoring and inspection of such buildings is also quite useful.
Mr. Fahey: Section 25 obliges public bodies to make public buildings accessible to people with disabilities, in accordance with Part M of the building regulations. Section 25(3)(a) states that public buildings will have to comply with Part M “not later than 31 December 2015”. It is proposed in amendment No. 41 that the “compliance of public buildings with Part M shall be ensured by the allocation of certificates of compliance by a building control officer”. The Building Control Act 1990 provides that the enforcement of the national building regulations, including Part M of the regulations, which relates to access for people with disabilities, is vested in local building control authorities, rather than individual officers who are employed by the authority.
I am happy to inform the House that the Government intends to introduce a building control (amendment) Bill in the autumn, which will provide for the introduction of a system of disability access certificates. The building control authorities will have to certify that all planned non-domestic buildings and apartment blocks comply with Part M of the building regulations before work can commence. The proposed system will apply to a wider range of buildings than the public buildings which are covered in the amendment under discussion. The sectoral plan of the Department of the Environment, Heritage and Local Government will contain information about the measures to be taken to ensure compliance with the regulations.
For the reasons I have outlined, I do not propose to accept amendment No. 41. I emphasise that the introduction later this year of a system of disability access certificates represents a significant departure. The system will strengthen further the accessibility provisions.
Ms Terry: I welcome the Minister of State’s proposal to introduce a system of disability access certificates. As he has said, it will strengthen the level of accessibility afforded to people with disabilities. Such good practices are observed in other countries, such as Australia. While I welcome the proposals, I ask the Minister of State to reconsider the possibility of introducing them in this Bill. If they are to be included in a future Bill, why can they not be provided for in this Bill? A minor amendment would be required. I do not understand why we have to endure delays in this regard while we wait for further legislation to be prepared. The Minister of State can strengthen the Bill before the House by including the proposals in question in it.
Ms O’Meara: I support Senator Terry’s remarks. While I welcome the Government’s aspiration to bring building control legislation before the Oireachtas in the autumn, it should be borne in mind that there is a substantial legislative backlog at present. Some 12 Bills have been passed by the Seanad but have not yet been passed by the Dáil. This House completed its consideration of the Parental Leave (Amendment) Bill 2004 in February, but it has not been debated by the Dáil even though it is now June and there are just two weeks to go to the summer recess. Senator Terry has made an important contribution to the debate on ensuring compliance with the building regulations which cater for people with disabilities. The Government hopes to bring the building control Bill to the House in the autumn, but we might have to wait another year for the legislation to be passed. If we include the relevant provisions in this Bill, they will be in place straight away.
Mr. Fahey: I do not accept that the provisions can be put in place straight away — it is a little more complicated than that. Given that the building control (amendment) Bill is more comprehensive, it will do a much better job in reaching the objective of both Senators.
Amendment, by leave, withdrawn.
Section 25 agreed to.
Sections 26 to 30, inclusive, agreed to.
An Leas-Chathaoirleach: Amendment No. 42 proposes the insertion of a new section. The amendment is ruled out of order as it would involve a potential charge on the Revenue.
Ms O’Meara: As this was a considerable amendment, I want to record our disappointment that it was disallowed.
Amendment No. 42 not moved.
An Leas-Chathaoirleach: Amendments Nos. 43 to 45, inclusive, are related and will be discussed together.
Ms O’Meara: I move amendment No. 43:
This amendment seeks to achieve something very straightforward, namely, that all Ministers would be required to prepare sectoral plans.
Ms Terry: I support the amendment. This is something every Department should be obliged to do. I ask the Minister of State to consider this aspect. Every Department is not included at the moment, therefore, it would be of benefit to people with disabilities if each Department was obliged to provide for its own sectoral plan.
Mr. Kett: I support that. I do not know why some Departments are not included in the network, but I believe in disability proofing. I would also encourage those people with responsibility for decision making in the Departments to be more disability aware as part and parcel of their ongoing education. If they are thinking disability, then disability will have a greater role in all the decisions made in Departments.
Mr. Fahey: Section 31 outlines the six Ministers required under the Bill to prepare sectoral plans. These include the Minister for Health and Children, the Minister for Social and Family Affairs, the Minister for Transport, the Minister for Communications, Marine and Natural Resources, the Minister for the Environment, Heritage and Local Government and the Minister for Enterprise, Trade and Employment. The Departments concerned are those whose policies make the greatest impact on the lives of people with disabilities. I would like to remind Senators that all public service providers, including all Departments and agencies, must make their services accessible in line with sections 25 to 29, inclusive, of the Bill. This must be done before the end of 2005. The sections impose significant obligations on such bodies and require them, among other things, to make all their services accessible to people with disabilities.
The six Departments to which I have referred are the six large Departments which, because of the significant work which will take time, have been required to put that work into a plan. It is for that reason we have required six sectoral plans. The other Departments which, by and large, will be required to put their plans into practice almost immediately do not need a sectoral plan. This is why there are not sectoral plans for every Department. For this reason, I do not propose to accept amendment No. 43.
The proposed Government amendments Nos. 44 and 45 will require the six sectoral plan Departments to produce reports setting out information on the progress they have made in implementing the measures set out in their plan. The Ministers will be required to produce reports at least every three years and lay them before the Oireachtas. At least every three years means it may be necessary for people to prepare reports on a more regular basis if it is clear that adequate progress is not being made. This is partly in response to the case made by the DLCG, particularly by the DFI. I welcome Mr. John Dolan to the Visitors Gallery. I noted the contents of an article he wrote in this morning’s edition of The Irish Times.
An Cathaoirleach: Sorry, Minister, it is not in order to refer to that matter.
Mr. Fahey: I apologise. I am acutely aware of the concerns expressed on the issue. These changes, which are the subject of amendments Nos. 44 and 45, were sought by the DLCG at its recent meeting with the Taoiseach and me. They have been considered in consultation with the other Ministers. Having secured agreement on the strengthening of reporting requirements, I am happy to table Government amendments to deliver these changes.
The Bill already requires the Departments to outline arrangements for monitoring and reviewing their plans. The enhanced provision is an indication of the importance the Government assigned to the sectoral plans and their role in shaping a more inclusive society for people with disabilities. The reports will ensure that the review of progress is ongoing and transparent, leading to the continued improvement of services and facilities. This is a positive and practical way forward.
Ms Terry: I thank the Minister for the amendment. If it is agreed, will he guarantee there will be a type of disability-proofing in each Department? When drawing up legislation or regulations, will Ministers automatically tick the box to say it is disability-friendly, in the same way as Departments must equality-proof legislation? If it does not go that far, it will not be worthwhile. The amendment tabled by the Labour Party and Fine Gael would have given greater assurance that there would be disability-proofing. It would have provided for a disability commissioner which would have been of great benefit. I am disappointed this has not been accepted. We must be assured that this requirement will provide a change in attitude in each Department. From now on, everything should be disability proofed automatically. In future, people should not have to fight for their rights. It should become the norm that everyone, regardless of whether they are able bodied or have a disability, will be provided for in every piece of the legislation a Government introduces. Nothing less will be acceptable.
Ms O’Rourke: Each Minister should be imbued with this requirement. I am aware particular Ministers have been designated. Clearly these are the Ministers and Departments which would be mainly accessed by particular applicants. At the same time, this should not be confined to those Departments. Every Minister should be imbued with the idea that people with disabilities should be treated as equal citizens and none of them should have the option of saying it has nothing to do with him or her and that it is the responsibility of another Minister. Every Minister should be brainwashed about disability. I would drum it into every Minister because circumstances change. The Minister of State referred to the Department of Arts, Sport and Tourism, which is correct, given that people with disabilities want to go to the theatre, poetry readings and art exhibitions.
Senator Terry referred to our attitude but one cannot legislate for attitude, although I wish one could. One cannot get inside the head of every civil servant or Minister and tell them they should feel a certain way about disability. However, if it is made so pervasive that they cannot avoid it even if they wanted to, they will have to become part of the disability agenda. That is what the Minister of State is about but one cannot change attitudes. Civil servants are good on all these issues but, at the same time, they are used to viewing them one way whereas, following the enactment of the legislation, they will have to view them another way. It is difficult for everybody.
I commend very much the Minister of State’s amendments, which follow the debate in the Dáil and consultation with disability interests. Every Minister should have his or her head knocked in about the issue.
Ms O’Meara: I still do not understand why it would not be possible for every Department to publish a sectoral plan. A number of Departments will draft larger plans than others and the six Departments mentioned will be at the front line.
The Leader stated one cannot legislate for attitudes but that is not the case. Legislation and action can change attitudes. For example, newer public transport modes such as the Luas are disabled-friendly and the entire community expects this because over the past number of years that expectation has been created through actions, plans and legislation. Action resulting from legislation changes attitudes. One can legislate, therefore, in a roundabout way to change attitudes and attitudes have changed significantly in this area.
Ms O’Rourke: The Senator is correct.
Ms O’Meara: There is still a long road to travel and slippage will occur. A great start might be made with a major burst of energy, for example, as a result of a major debate on legislation such as this, but if its implementation is not monitored, slippage could easily occur. Recently, the number of people with disabilities employed in the public service was published and Senator Terry has tabled an amendment regarding the public service employment quota for such people, which we will address later. It is important to make such provisions in legislation because slippage easily occurs.
The framework set out in the legislation is good and I commend the Minister of State on the amendments he has tabled in this regard. However, we should go further than we think we might need to ensure we achieve what we set out.
Mr. Fahey: I assure the Senators there will be a change in attitude within public bodies. Whether it is called disability proofing or something else, the legislation for the first time places a significant obligation on all public bodies to provide accessibility for people with disabilities. The obligation will cost the State a considerable amount over the next ten years and that is the reason it has only been placed on public bodies. For instance, the Department of Arts, Sport and Tourism is not listed among the six Departments under this section because a private sector theatre cannot be compelled to comply with the legislation similar to public bodies, even though the theatre is subject to equality legislation and the building regulations.
Under the legislation, all public bodies, including Departments and their agencies, will be compelled to provide for accessibility. An appeals procedure involving the Ombudsman is provided for where such bodies do not comply with their obligations. While a number of representatives of the disability sector and the DLCG still have concerns, I am satisfied attitudes will change. I have taken on board the comments of these representatives who say when they visit Departments, the attitude of a number of civil servants is that they cannot carry this heavy burden. There is an obligation on public bodies under the legislation to change that attitude.
The proof of the pudding is in the eating. Hopefully, the Bill will be enacted next week but we will have to wait to see how the change will take place in the mindset of public servants. How the change occurs and how much money will be allocated to provide for accessibility will be important in the coming months and years. The response to organisations such as the DFI when they approach the Secretary General of a Department and ask him or her to outline what the Department is doing in this regard will also be important.
A review is provided for in the legislation so that there can be accountability regarding what was done in the previous year. I have listened carefully to the DLCG and the DFI, in particular, regarding this issue and I am satisfied I have put in place important strictures on performance by Departments and agencies. We will have to wait to see how the implementation goes and if it does not go in accordance with the Government’s wishes, we will have to revisit the issue.
Ms O’Rourke: On the arts, we debated the position of private theatres and galleries yesterday and I acknowledge that private bodies cannot be forced to comply with the legislation. One hopes that moral sentiment will make them comply. However, the Abbey Theatre, which is our national theatre, is an exception. It is funded extensively by the State every year and there should be an onus on the theatre’s management to comply with the legislation, given that the theatre is scheduled to move to a new building. I am aware of the building regulations referred to by the Minister of State but, at the same time, an onus should be placed on the Abbey because it is the national theatre.
Mr. Fahey: There will be for the new building under the building regulations.
Ms O’Rourke: I accept that but the Minister with responsibility for the theatre should be told it is his job to watch out for that, irrespective of the building regulations. I feel for people with disabilities who have read about exhibitions and plays but who cannot attend them because the buildings are not accessible. Public transport is accessible by people with disabilities and they can get to the venues but they cannot go inside.
The Minister of State referred to the review and pointed out that a DFI representative could question a Secretary General about what the Department has done about A, B, C or D. There should be a subhead, such as those in the Estimates, labelled “disability” under which would be the money required by the Department for the next year to meet its disability obligations. The Minister must go a-begging to the Minister for Finance in an awful and rigorous process in which the Minister for Finance says “No” to everything. I have no complaints about this as it is the Minister for Finance’s job to keep track. If he or she did not do so, this would be a wanton nation of spendthrifts. However, the disability subhead would not be touched because the Minister and Secretary General of the relevant Department would vouch that this would be needed if they were to honour their obligations regarding disability. The Minister for Finance would skip this subhead. As someone who has been reasonably successful when begging at the doors of Ministers for Finance over the years, it is a practical point.
Ms O’Meara: Concerning something said by the Leader, I would have thought that all buildings in receipt of public money would have an automatic——
Ms O’Rourke: We had that debate previously.
Ms O’Meara: I was not present for it.
Ms O’Rourke: The Senator’s colleague was present.
An Cathaoirleach: Senator O’Meara without interruption.
Ms O’Meara: I speak particularly about buildings in receipt of lottery money. When being built, I would have thought that theatres, for example, would have been in receipt of or have applied for lottery funds.
Concerning the general point about sectoral and general plans and how they are referred to in this section in terms of measures being put forward to ensure Departments are disability-friendly, I sense from the Minister of State’s remarks that he is very committed. This would be an immediate attitudinal change and I commend the Minister of State’s commitment but why is he not going as far as disability proofing? He might say we can call it what we like but the terminology and language we use is important. If the Government makes a statement that the requirement of Departments to plan for disability proofing is contained in this legislation, it is a powerful statement. Anything less is not adequate to meet the Minister of State’s level of commitment. If he is so committed, why not say there will be disability proofing?
As has been pointed out in submissions made to us by the Disability Federation of Ireland, disability proofing is contained in other legislation. This type of structure is contained in the Government’s commitment to the Irish language in terms of a commissioner under the Official Languages Act 2003, which has been the subject of much comment. Why not have a disability commissioner and disability proofing? It was in one of our previous amendments but is important in the context of this discussion. The Minister of State might tell us to call it what we will but this is not enough. Language is extremely important because it both reflects and creates one’s intent. The intention is not as strong without disability proofing included in this legislation.
Mr. Fahey: I am tempted to answer the question by asking the Senator what she means by disability proofing.
Ms O’Meara: Why does the Government not use the language in the Bill?
Mr. Fahey: What does the Senator mean by disability proofing?
Ms O’Meara: I think it is clear. The Minister of State would know that it means actions taken by Departments are disability proofed. In other words, are the actions of a Department such that it allows——
Ms O’Rourke: We could use my subhead idea and locate the money therein.
An Cathaoirleach: Allow the Minister of State to reply.
Mr. Fahey: The answer to the question is “Yes”. There is a strong obligation under this Bill for public bodies to provide for accessibility, which is one of the few obligations in this country’s legislation. In response to Senator O’Rourke’s question, at the beginning of each year Ministers must set out the amount of money they will provide for disability services.
Ms O’Rourke: The money could be put in a disability subhead.
An Cathaoirleach: The Minister of State only, please.
Mr. Fahey: One could do so if one wanted to.
Ms O’Rourke: I did not know that.
Mr. Fahey: The Minister states the amount of money at the beginning of the year but that amount cannot be ring-fenced due to the requirement of Ministers to take account of their other responsibilities. We have agreed to disagree with the DLCG on this issue. Senator O’Rourke was herself a good Minister in the education and even the health areas. As I have pointed out time and again since the start of this debate, if one requires a Minister to state at the beginning of the year the amount of money being provided for disability services and also requires him or her to provide for multi-annual spending, it would take a brave Minister to withdraw some or all of the money that has been dedicated to disability services. Due to the responsibility for good governance and expenditure of public moneys, we cannot simply ring-fence a specific amount of money.
The ethos of the Bill is that it statutorily underpins the foundation of increased expenditure. One cannot take matters much further. I had frank discussions with the Minister for Finance and his officials on this issue.
Ms O’Rourke: I would say the Minister of State had.
Ms O’Meara: I can imagine.
Mr. Fahey: One must agree when they point out that in the interests of good governance and responsible expenditure of Exchequer money, one must leave flexibility in place. While one may have the desire, determination and so on to provide for these services, as the Government does, one must do so within a statutory framework that is sensible and responsible. We got the balance right in this legislation in that regard.
This will ultimately be about the amount of money in the Estimates that the Government decides will be made available to deal with these issues. The six sectoral plans apply to six Departments only, due to the significant work that must be done therein. The plans do not apply to other Departments because they have very little to do. What must be done must be in place by December 2005. Section 5(3) refers to the Minister providing money at the beginning of the year and sections 25 to 28 provide for the other Departments having their plans in place by December 2005.
Ms O’Meara: I was not finished. On the disability proofing statement, the Minister of State probably knows that this is the view of the Disability Federation of Ireland. It proposes that each Department and public body produce an annual disability proofing statement of its policies and services. This would show the level of progress in opening their services to people with disabilities. The Minister of State will say this is provided for in the Bill generally but it falls short of requiring Departments to publish a disability proofing statement. It is important they would do so as it is a statement of intent and makes a strong public statement.
Amendment, by leave, withdrawn.
An Cathaoirleach: Amendment No. 44 was discussed with amendment No. 43.
Government amendment No. 44:
Amendment agreed to.
Government amendment No. 45:
Amendment agreed to.
Ms O’Meara: I have a technical question.
An Cathaoirleach: The amendment has already been discussed and agreed.
Ms O’Meara: In that case, I have a question on the section.
Question proposed: “That section 31, as amended, be agreed to.”
Ms O’Meara: What is meant by the phrase, set out in amendment No. 45, “as soon as may be”?
Ms O’Rourke: I propose that the amendment should state that the report should be laid before Dáil Éireann and Seanad Éireann.
Mr. Fahey: In answer to Senator O’Meara’s question, that is a standard provision in legislation.
Mr. Quinn: I query the reference to Dáil Éireann and not to the Oireachtas. Is there a reason for that?
Mr. Fahey: We can include Seanad Éireann by all means.
Ms O’Rourke: The amendment is demeaning to us, given that we are here, debating the Bill.
Mr. Quinn: The phrase has only just caught my eye.
An Cathaoirleach: Amendment No. 45 has already been agreed.
Mr. Quinn: We are discussing the section now. I have a concern about the section because it states in amendment No. 45 that the report will be laid “before Dáil Éireann” as soon as possible. Surely that should state “before the Oireachtas”?
Ms O’Rourke: It would be better to state “before the Houses of the Oireachtas”.
Mr. Quinn: If the omission was not intentional, is the Minister of State willing to amend the amendment?
Mr. Fahey: We will consult with the Parliamentary Counsel and revert to the issue on Report Stage.
Ms O’Rourke: This issue arose with another Bill, Senator Quinn spoke on it and the Minister agreed, there and then, to change the phrase to “Houses of the Oireachtas”. If we are fit to debate this Bill——
An Cathaoirleach: The Minister of State has agreed to examine the point and revert to it on Report Stage.
Mr. Fahey: I do not have a problem with the Senators’ point, but we will have to consult the Parliamentary Counsel.
Mr. Quinn: I suggest that, within the section, we amend the phrase to include Dáil Éireann and Seanad Éireann.
An Cathaoirleach: That cannot be done. The amendment has already been agreed.
Mr. Fahey: We will revert to the issue on Report Stage.
Question put and agreed to.
Ms Terry: I move amendment No. 46:
This amendment deals with the sectoral plans of the Minister for Health and Children. I ask the Minister of State to accept it to further strengthen this section. The sectoral plans are very vague and general at present. The amendment strengthens the section and obliges the Department to bring forward national standards for disability services, which would benefit users of such services. It also ensures that these services are inspected on a regular basis.
We must make special mention of services for people with disabilities in the context of primary care. I would hope that in ten years’ time we will not need to make special reference to people with disabilities; they will be part of the agenda automatically and included in the daily thinking of Ministers, Governments and departmental officials. However, special reference is required for the moment, given our history of neglect of people with disabilities, for which we must all accept responsibility.
I cannot assert that when this legislation is passed in the autumn that everything will change and that our minds and attitudes will alter overnight. That will not happen and until such time as disability is embedded in our thinking, we need to make statements such as those provided for in the amendment. I hope that in five or ten years, we will be able to remove many of these special references because it will be accepted that people with disabilities are entitled to the same service as every other member of a community. We will all be one and each person will be entitled to the service that he or she requires. In the meantime, however, we must ensure that nobody slips through the net and my amendment aims to do that. I ask the Minister of State to accept it.
Mr. Quinn: I support Senator Terry on this issue. Her arguments are in line with points made by a number of Senators on Second Stage and Committee Stage, regarding the promotion of a positive attitude, rather than simply removing negatives. Senator Terry has made her point well and I urge the Minister of State to accept her amendment.
Mr. Fahey: Amendment No. 46 has two elements, the first requiring that the sectoral plan of the Department of Health and Children contain information on the introduction of national standards for disability services. I do not consider it necessary to specifically refer to these standards in the Bill. The Department’s sectoral plan already provides that it will contain information concerning proposed arrangements to implement Part 2 and any other matters the Minister considers appropriate. The national disability standards prepared by the National Disability Authority will provide an important focus for future action. The existing framework of the National Disability Authority Act provides adequately for the monitoring and reviewing of these and other standards. A new independent body, the health information and equality authority, HIQA, will deal with standards in health services, including disability-specific services.
The second element of the proposed amendment deals with the mainstream health service needs of people with disabilities. The Bill as drafted allows for consideration of the issue in the context of the sectoral plan if the Minister for Health and Children considers it necessary to include it. I do not propose to specifically provide for primary care needs in the manner suggested in the amendment, therefore, do not propose to accept it.
Amendment, by leave, withdrawn.
Section 32 agreed to.
Sections 33 and 34 agreed to.
An Cathaoirleach: Amendments Nos. 47 to 49, inclusive, are related and may be discussed together by agreement.
Government amendment No. 47:
Mr. Fahey: Sections 31 to 37 outline the content of the six sectoral plans of Departments and section 35 relates specifically to the sectoral plan of the Department of Communications, Marine and Natural Resources. The Disability Legislation Consultation Group, DLCG, at a recent meeting with the Taoiseach and myself sought to have this section reviewed so that it would be consistent with the approach taken to other sectoral plans, which allows those plans to deal with matters that the Minister concerned deems appropriate.
Having reviewed the provision in consultation with the Department of Communications, Marine and Natural Resources, I now present Government amendments Nos. 47 to 49, inclusive, which seek to amend section 35 so that the sectoral plan can also deal with any other matter which the Minister considers appropriate. This will ensure that the requirements are consistent with those of the five other Departments that will draw up sectoral plans.
Amendment agreed to.
Government amendment No. 48:
Amendment agreed to.
Government amendment No 49:
Amendment agreed to.
Section 35, as amended, agreed to.
Sections 36 to 46, inclusive agreed to.
Ms Terry: I move amendment No. 50:
This amendment proposes that after the passing of the Bill, the Minister for State would prepare and lay before each House of the Oireachtas a report on the possibility of increasing the public service employment quota for people with disabilities above 3%. I do not know who took action to ensure that public bodies would have a quota of 3% of people with disabilities working for them. It was a very good decision and opened up great opportunities for so many people who heretofore were not able to secure employment. We all accept that many people with disabilities, particularly severe disabilities, can make an enormous contribution to the workforce, not only in the level of their work but in terms of the general environment and atmosphere in which they work. Everybody benefits from the communication and the interaction with different types of people.
People with disabilities should be given every encouragement possible and the Government must lead on this. Hopefully, this will have a knock-on effect on the private sector. It is having a knock-on effect in this sector. As I mentioned yesterday, Senator Quinn is a very good employer of people with disabilities. There are other employers like him. The recent O2 ability awards ceremony showed that many private companies are taking this on board. This is because it is led by the Government.
We have come very far in that regard and it is now time to go further and increase the 3% quota. We know that some public bodies, including local authorities, have still not reached the 3% quota, which must be regretted. We must set the bar very high and set the standards. By accepting this amendment, we are giving the legislation great strength and power and giving a lead in this area. I ask the Minister for State to accept this amendment.
While I am speaking about employment, I would like to repeat a point I made on Second Stage. The Minister for State did not have the opportunity to respond to me then and I hope that he will respond today. An amendment of mine was passed during the debate on, I think, the Employment Equality Bill. The amendment stipulated that people with disabilities should get nothing less than the minimum wage. I wish to ensure that this happens. We heard recently on the radio that people with disabilities working in the environs of this House are not receiving the minimum wage. I would like the Minister for State to make the point that any employer employing someone with a disability must offer him or her the minimum wage and nothing less should be accepted.
Mr. Kett: I agree with the general thrust of Senator Terry’s comments because this is an area that is very important to people with disabilities. We are back to disability proofing and thinking disability. Those who employ or do not employ people with disabilities, particularly in the Civil Service, should be forced to think more deeply about the abilities of people with disabilities. On Second Stage Senator Ryan spoke about someone who he would not originally have taken on for a certain position. Senator Ryan was unable to attend the person’s interview and the person was taken on and turned out to be, in the Senator’s words, exemplary. We are again talking about people’s attitudes and how a person with a disability can be regarded as incapable of doing a job because of his or her disability. Modern technology allows people with disabilities to do a far greater range of work than they could do before. They can be a great asset to a work environment.
We must look at the jobs we give to people with disabilities because too many of them work in meaningless jobs. We need to consider them for meaningful jobs; jobs that provide job satisfaction and allow people with disabilities to feel good about themselves. Feeling good about oneself is vital. A statistic was cited some time ago in this House to the effect that 80% of families headed by an individual with a disability live in poverty. This statistic bears out the fact that people with disabilities who are employed are working in jobs that are of less status than those that would have been available to them if they were able-bodied.
We must educate people charged with the responsibility of deciding whether to employ people about the abilities of people with disabilities. They must be educated themselves. I said on Second Stage that it would do no harm if people charged with these responsibilities were to go out into the disabled sector and find out what is available to them. Senator Quinn is a shining light in terms of the employment sector. He has committed himself to employing people with disabilities over the years and should be commended for that.
I generally agree with the thrust of Senator Terry’s contribution but I would like to see all public sector agencies reaching the 3% quota. I know that I previously asked whether these agencies were all living up to their 3% quota and was told that they were there or thereabouts. I am not so sure what the situation is at the moment but if they are not reaching the quota, they should be brought into line.
Mr. Quinn: I thank Senators Kett and Terry for their kind words. Setting targets for people is a great way of trying to achieve something. It appears that Senator Terry’s amendment is very worthy. Even if it is difficult to achieve, it sets standards that others strive to attain. I know that many employers around the country who did not realise that the Government had set a target of 3% until it was publicised began to strive to achieve it themselves once they discovered its existence. I think of the Aisling Foundation and the O2 ability awards, which have done so much to draw attention to this issue. It acts as a real incentive.
There is a danger that people outside think of people with disabilities solely as wheelchair users. We are talking about all of the talents that so many others who are not necessarily in wheelchairs possess. They could be blind or deaf or have another type of disability and discover that they have abilities that are worthy if we manage to tap that resource. It is good for business and customers like to see a company doing something of this kind. Therefore, I support Senator Terry’s amendment.
Mr. Leyden: Senator Terry’s amendment is very reasonable. I know the Minister for State has been more than helpful in bringing forward amendments to this Bill in both Houses. He has been more than open to good suggestions. As Senator Quinn noted, quotas are a good example of setting targets. A quota of 3% seems to be very low in this day and age. If we had a quota of 3% for either men or women, it would be very unacceptable. I do not see why there should be limitations on quotas. A minimum quota should be set but there should be no maximum figure. I know that Senator Quinn has given great leadership to the private sector through his work in his own company and has been very much admired for this. Actions speak louder than words so he is in a very strong position to speak on this particular issue because of his support for people with ability. These are the people he has employed. I do not wish to burden the Minister but both our spokesperson and the Leader have given great time to this Bill as well. I would appreciate it if the Minister will consider this before returning to the House later.
Ms O’Meara: I concur with the other speakers and I commend Senator Quinn on putting words into action in his business. Other employers are doing the same and it makes a difference. It makes a difference because the Senator’s customers will have the experience of meeting somebody with a disability in an environment where they might not otherwise have met them. It creates an air of normality which is important. This is particularly so in light of the ESRI report this week which shows that people with disabilities are twice as likely to be living in poverty than the rest of the population. Clearly, that is related to employment and access to employment.
We must push the boat out on this issue. Senator Leyden said what I wished to say. The figure of 3% is extremely low. It can also create the effect of a lid. If the 3% is reached, people can say they have done their bit and do not need to do more. How does one create a sense of going beyond that? One can make the figure 5% but that puts the lid at 5%. I do not know the answer to that question but the issue must be examined. Actions speak louder than words and implementation is everything.
Senator Terry’s amendment is good and I agree with it. However, it is probably quite mild. She is being nice to the Government by asking the Minister to prepare a report on the possibility of increasing the public service employment quota. What about a report on how it is to be done? The report should be on the actions that must be taken to have the quota fulfilled or even extended. It is a useful but mild amendment. I cannot see how anybody could not agree with or accept it. The spirit of this part of the legislation is crucial.
Ms O’Rourke: Like the previous speakers I commend this amendment. I always rail against quotas, including quotas for women. There are no quotas for men.
Ms O’Meara: There are hidden ones we are not told about.
Ms O’Rourke: I have worked in Departments where the 3% quota has been filled and in Departments where it has not been filled. All types of excuses are offered as to why the 3% is not filled. I agree with Senator Quinn that it is a case of “think ability”, not disability. There is great potential in everybody, regardless of one’s disability. If one has a disability, one will generally be capable of something else. The encouragement of the capability rather than pointing to the disability is key. Jobs should be considered in the context of providing job satisfaction for somebody rather than saying, in a dismissive way, that the person cannot do the job, as I have heard on occasion in Departments. Another type of job might be ideally suited to the person’s ability.
Yesterday and today, the thrust of Members’ comments has been how to change how people think on this issue. We must strengthen and encourage people’s thought processes to think of ability and what they can do, rather than sighing and moaning about it. The amendment is mild but then Senator Terry is a lady.
Ms Terry: A woman.
Ms O’Rourke: The Senator is obviously both.
Mr. Quinn: I am sure she is a lady as well.
Ms O’Rourke: She is a woman and a lady. This would be good for the Civil Service because Civil Service personnel will be implementing it. A Secretary General will be obliged to perform and report what has been done about this matter. He or she will have to think about it and might discover that 20 or more people are required. It is a good amendment in that it will propel the Secretaries General and civil servants at the highest levels to increase the number of people with disabilities who are employed in their Departments. There is plenty of scope for employment in Departments. I hope the Minister can consider the amendment, even if the civil servants will not like it.
Dr. Henry: The thrust of the Bill is to integrate people with disabilities into society. That is of benefit to everyone as well as to the individuals concerned. This is an area where we have influence in a way that can be measured. It would be wise of the Minister to accept this amendment given that it is receiving support from all sides of the House.
Senator Quinn has rightly been praised for the amount of employment he gives to people with disabilities in his business. However, he is not employing them because he believes he is a charity. These people are well able to do the work. The Senator is not doing this as a sop to society. I meet these people in the shop in Blackrock and they are well able to do the work. We must also take note of the dreadful levels of unemployment among people with disabilities. We now have a chance to include something measurable in the legislation. We would be most grateful if the Minister would accept Senator Terry’s amendment. Be she a woman or lady, she would be delighted to get it accepted under any guise.
Mr. Fahey: When I was a Minister of State with responsibility for labour, I took a particular interest in trying to improve the lot of people with disabilities and their access to employment. The big problem was the lack of awareness among employers of the abilities and advantages of employing people with disabilities. I concur with the views expressed about Senator Quinn. I remember arranging a series of seminars throughout the country in addition to the one organised in Dublin by Caroline Casey. In Limerick, Waterford, Cork, Galway, Sligo and other big locations there was a significant effort to bring in employers and show them the Government supports that were available and the advantages. In particular, we had some of the more enlightened employers who already employ people with disabilities show the impact that such employment had on their companies. However, few people turned up.
One of the most telling things that happened to me when I was in that Department was when I participated in a programme on Galway Bay FM with the Gay Byrne of Galway. He asked me why people were not turning up at the seminars and why employers were not taking greater note of them. This person is also the chief executive of Galway Bay FM so I said: “How many people with disabilities are employed by Galway Bay FM?” He took two gasps of breath before replying, “Nobody”. When I asked why, he said that they had never thought about it. That is the problem. I can legislate as much as I wish for the public or private sector but that is the reality.
I asked organisations such as Workway, which operates with FÁS, and the sheltered employment organisations for good examples of disabled employees. A little filling station outside Ennis is one of the most successful filling stations in the country. It is run by a young man with a disability. He is such a wonderful character that he attracts significant business. He is running the show. That is his ability.
Ms O’Rourke: Perhaps the Minister will think about this amendment over lunch.
Progress reported; Committee to sit again.
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