Solicitor responds to tribunal censure

In October 2004, my legal practise, together with another legal practise in Cork, identified that the deduction of 80% of the pensions of public nursing home patients was illegal.

We established that there was no legislation giving power to the Minister to authorise the health board to deduct these monies.

As a result of us identifying this defect, emergency legislation was passed in December 2004, in an attempt by the Government of the day to protect the procedure that was in place and also legalise the previous deductions. We corresponded with the Department of Health threatening that we would take a constitutional challenge to the legislation.

The President referred the legislation to the Supreme Court and it held in February 2005 that the legislation was unconstitutional.

The Government of the day was subsequently forced to bring in new legislation to provide for the refund of nursing home charges which had been illegally deducted from pensions. This legislation provided for the refund where the person lived on or after December 9 1998 (six years prior to the day we identified the defect in the legislation) and further provided that the person must have been in a public nursing home or in a contracted bed in a private nursing home. The legislation did not provide for refund of nursing home charges for anyone who was in receipt of subvention and was in a private nursing home.

As a result of the defect being identified, over €400 million was refunded to people or their families. In the case referred to by the Irish Examiner ( November 26), the complainant sought advice in March 2006 on the possibility of proceedings in respect of the estate of one of her late parents who had died eleven years previously.

Unfortunately this case did not fall under the new legislation which provided for the refund where the person lived on or after December 9.

I am satisfied that I verbally communicated the correct legal advice to the complainant. I acknowledge that the verbal advice was not followed up with a written communication. The Tribunal found there was a failure of formal written communication but was satisfied and held that I did not give any undertaking to issue court proceedings.

The solicitors’ complaint procedures dealt with this matter twice and rejected the complaint on both occasions. No payment or fees of any kind were requested or invoiced to the complainant in the matter.

Senator Colm Burke

Washington Street

Cork

This letter was subject to a Press Council adjudication. Read it HERE