Q&A: Key questions on the nursing home refund controversy

On Sunday, it was reported that successive governments before 2011 and up to the present day devised and have applied a strategy to deny refunds to people who were 'illegally charged' nursing home fees. File picture: Leon Farrell/RollingNews.ie

The Government is under fire after allegations that the State over many years has pursued a deliberate policy of denying refunds to patients “illegally” charged nursing home fees.

The matter has dominated the political agenda since the Irish Mail on Sunday first reported on “secret” internal Government documents which detailed the strategy to minimise the cost to the State.

Just what is the controversy all about?

On Sunday, it was reported that successive governments before 2011 and up to the present day devised and have applied a strategy to deny refunds to people who were “illegally charged” nursing home fees.

The State faced the prospect of €12bn in compensation for hundreds of thousands of families wrongly charged for the care of their loved ones over a 30-year period.

The central allegation held that, worse still, the Government even knowing it could not win in court, sought to contest the cases and only settled when people proceeded with their legal actions.

Did we not know that older people paid for nursing home care that should have been covered by the State?

Yes, it is a controversy stretching up to 30 years. Successive governments and health bosses have been found to have failed to remedy the grounds for the illegal charges being imposed on mostly older people.

What did the document say?

The key extract from a 2011 memorandum, presented by then health minister James Reilly warned that if the strategy was made public it “would spark a large number of claims". 

“The liability to which the State could, potentially, be exposed if a case were to be lost and set an adverse precedent would be very substantial indeed," the documents say.

Just how did this situation come about?

The Health Act 1970 granted people with medical cards an entitlement to in-patient services and this was later determined to cover long-stay nursing home care. In 1976, health boards “illegally” withdrew medical cards from those in long-term care and this continued until 2004.

How did this problem be allowed to continue for so long?

The 2005 Travers report concluded that the Department of Health knew well there were legal concerns around the practice and there was a systemic corporate failure to sort it out, involving civil servants and politicians.

In 2005, the Supreme Court declared unconstitutional the Health Amendment Bill, which attempted to create a retrospective legal basis for the illegal charging for long-term care.

This saw the Health Repayment Scheme (HRS) set up to repay people in public nursing homes who were illegally charged.

Thirteen years ago, then ombudsman Emily O’Reilly accused successive governments and State officials of having “a disregard for what the law actually requires and a failure (over 40 years) to have the law amended so that practice and the law are in harmony”.

How many people are involved and how must will it cost?

The documents stated the exposure to the State could be as large as €12bn. By 2011, up to 70,000 people were considered eligible for refunds but in the end 35,000 applications were received and the State paid out €486m on almost 20,000 cases through the HRS.

What has the Government said and what is happening now?

The Government has said the issue has been “grossly misrepresented”. A number of current ministers and former ministers are now in focus over what they knew or did when in office. The Attorney General is to produce a report for Cabinet next week. The Dáil is to debate the matter and three Oireachtas committees are seeking to examine this matter.