Honesty and fairness disappear in the chasm between law and justice

A LOT of lip service is being paid to justice, while our courts have been trampling on true justice in the name of the law.

This week there was the case of the husband and wife who sought compensation after they were hit and seriously injured on a footpath by a Dublin Bus. They lost their case because the driver was unaware that he was suffering from sick sinus syndrome, which caused his blackout, and the authorities of Dublin Bus did not know either. The High Court therefore ruled against the couple because no blame could be imputed against the driver or the company on the basis of negligence.

Let's face it: this is another instance in which the law is an ass. Is it justice that two people minding their own business should get nothing for their injuries after they were hit by a bus, while compensation is paid every day to people who trip or walk into a hole on a footpath because they are not looking where they are going?

It used to be that you were supposed to look where you were walking, but now it seems that everybody else is supposed to look out for you, and if you fall, the rest of us are responsible.

We were the laughing stock of the world with the army deafness claims. Now we could be saddled with having to pay billions in relation to money justly, but not legally withheld from pensioners to cover part of the cost of their care in nursing homes. It is estimated that as many as 300,000 people could be entitled to payment.

This has nothing to do with justice. Is it justice that somebody who, instead of looking after their parents in their old age, put them into a home, leaving society pick up the bill should now be recompensed because the State used some of the money that it provided for those pensioners to cover the cost of their care?

The State provided a pension for those people to look after themselves, but that pension was not nearly enough to cover the cost of nursing homes. Thus the State paid that cost and then deducted 80% of the pensions. In other words, it assumed the much higher cost of the nursing homes and gave the pensioners extra money amounting to 20% of their pensions. That was the reality of what actually happened.

"It is reasonable that people in public long-term stay places should make some contribution, where possible, to living costs or shelter and maintenance," Mary Harney told the Dáil this week. "That policy has been in place here for almost 50 years. That consensus is clear, given that the policy was implemented by successive governments and ministers for health, albeit on a legally flawed basis, for the past 29 years."

If those people had been offered the place in a nursing in return for just 80% of their pension, they would have jumped at it. But the State did not bother asking; it took their approval for granted and deducted the money without permission.

When various ministers and civil servants were warned that the practice was legally flawed, they ignored the warnings. But they are not being held responsible for their action or their inaction.

Instead, it is the innocent taxpayers who have to foot the bill. Only a fool would think that this is justice.

Of all the ministers, Mary Harney is the least culpable because she quickly tried to rectify the flawed practice, which had extended over almost 30 years. There has been a galaxy of different Ministers for Health since 1976 Brendan Corish, Charlie Haughey, Michael Woods, Eileen Desmond, Barry Desmond, Rory O'Hanlon, John O'Connell, Brendan Howlin, Michael Noonan, Brian Cowen and Micheál Martin.

The current Government rushed through legislation in December both to authorise the State to withhold money from the pensions of people in state care, and to justify retroactively the retention of part of the pensions over the years. There was no problem with those aspects of the legislation governing current and future payments, but the Supreme Court concluded that the attempt to apply the law retroactively was unconstitutional. It also ruled that the State should pay back the money deducted illegally during the past six years.

THE statute of limitations applies to monies deducted more than six years ago and government is not now legally obligated to pay that money. Does it have a moral obligation to do so? Money deducted from pensioners in state care now is quite legal.

The Supreme Court ruling was that the previous practice was flawed because the existing law did not cover it. Nobody doubts that this was a correct decision, but was it just to order that innocent people should now pay?

What is the primary function of our judicial system to dispense justice, or enforce the law? Surely if it is just to withhold money from people in state care now, it is equally just not to pay the money that was withheld from people in similar circumstances more than six years ago. The Supreme Court has already ruled that, in view of the statute of limitations, the Government is not legally obliged to repay the money that was withheld illegally from 1976 to 1998.

It seems that the Government is going to flout the dictates of justice and make a magnanimous gesture of paying all the claimants because it lacks the courage to do the proper rather than the popular thing.

If the money is paid out, who is going to suffer?

It won't only be the innocent taxpayers who are going to be fleeced again, but also the old, the sick and the disabled because the health budget is inevitably going to be pared down to repay the pension money that was withheld.

Minister for Finance Brian Cowen, one of the former Ministers for Health who either overlooked or ignored the implication of the flawed system, suggested that some families were very happy with the care that had been given in nursing homes, and that they would not be making any claim. No doubt there are still some conscientious and patriotic people who will adopt that attitude, but there will inevitably be greedy people who will milk the system for all it is worth.

Should those people who abandoned their moral obligations to their parents and dumped them on the State now be rewarded for their crass selfishness? Of course, most would have been placed in homes out of absolute necessity, but some were dumped by their families. It will be the same taxpayers who actually financed the care of those people's parents who will be paying again. Such a perversion of justice will ultimately breed a backlash that will rebound on those who need help in the future.

Each year 12,000 people reach the age of 65 and 1,500 reach the age of 80. We cannot afford to fund institutional care for everyone. Instead of squandering money on those who have no just or legal claim, that money should be put into health services for the poor, the sick, and the elderly those for whom Fianna Fáil used to profess such concern.