WHEN Jim Hyland learned that money owed to his 37-year-old autistic son by the state was being held in a central HSE fund, he asked for it to be transferred to his son’s own bank account.
The HSE refused his request, and so began a two-year battle, which has resulted in the first-ever case of its kind being taken to the courts — and won.
Colin Hyland, Jim’s son, was owed the money through the Health Repayment Scheme. Set up in 2006, the scheme sought to pay back people — mainly the elderly in nursing homes — who had been overcharged over a number of years while living in state-funded services.
However, for people who were deemed to lack “mental capacity”, the HSE made claims on their behalf and the money is now held in Patients’ Private Property Accounts. Today, there is €191m in this account, which also takes in thousands of social welfare payments every week.
According to the Department of Health, the HSE made applications for people in its care who were “deemed by a medical practitioner” not to have sufficient mental capacity to understand the scheme, and for whom there was no other “connected person”.
However, the Hylands, from Ballincollig in Cork, were never contacted to see if they could be nominated as a “connected person”.
This would have meant that Colin could simply have nominated them in writing to make an application to the scheme on his behalf.
There is also uncertainty whether, in the case of eligible people with an intellectual disability, any parents or family were approached about the scheme, or who “assessed” people to see if they lacked the mental capacity to manage the money themselves.
Colin Hyland has his own bank account, to which his disability money goes, and his father maintains that’s where this money should have been directed and not to a central fund which is difficult to access.
“When we first found about this account, we could not access it and it even took some time to find out how much Colin was owed. It was a substantial sum and we wanted to invest it for Colin and use it for him.”
Colin, who lives with the Cope foundation five days a week, could only get money if requested through Cope, which would then draw the money out, if the HSE deemed it appropriate.
If Colin’s parents requested, they too could get money on his behalf, on a case-by-case basis, but the control of the money would always remain with Cope and the HSE.
“These options were not good enough. That is Colin’s money and we want to hold it for him. Why should it sit in a HSE account in Tullamore?”
In 2009, the HSE wrote to Mr Hyland noting his dissatisfaction with the situation but said nothing could be done as the legislation is to there to safeguard Colin’s funds.
In its affidavit to the court, the HSE said it did not doubt the bona fides of Colin’s parents, but that the HSE was responsible for the management of the account in order to ensure safeguards, which would not be present should the funds be transferred to his parents.
The HSE’s affidavit also describes Colin Hyland as requiring care on a 24-hour basis.
“I say and believe that he requires constant supervision and assistance in relation to all activities of daily living including dressing eating and walking, by reason of disability,” the sworn statement reads.
Mr Hyland says he cannot understand where the HSE got this information as it is simply incorrect.
“I would completely dispute that description of my son. That is not Colin at all. Where did the man who swore this affidavit get that from?”
Mr Hyland said his son is very independent, goes horse-riding once a week and is well able to get about by himself.
He maintains the way he and family were treated was “disgusting”.
“For someone with a brain to come along and treat us like that is disgusting. Legislation was put through the Dáil and put money in an account in Tullamore, and no one thought to consult with people or inform them about what was going on. Common sense will tell you this is not right.”
My Hyland, who is the chairman of the disability charity Balance, said he knows of others affected by the situation, but that parents simply don’t know about the money.
“The HSE should not have the right to just keep this money without even sitting down with people and saying this is what we have in mind, or this is what is planned for the money.
“But there was nothing and the HSE were not very nice when I questioned them about it.”
The argument made by Mr Hyland’s solicitor was simple — the money had been deducted from Colin illegally. If the money had not been taken, Colin would have enjoyed the benefit of it in years gone by.
It was never meant as an investment for his long term care or future needs, which is how the HSE was treating it.
This first-ever challenge of its kind to the Health Repayment Scheme legislation has set a favourable precedent, and could pave the way for other families who feel money is too tightly controlled by the health services.
© Irish Examiner Ltd. All rights reserved