State seeks advice on allowance
The Government is to take legal advice on the mobility allowance for people with severe disability, Tanaiste Eamon Gilmore has told the Dail.
The move follows the ruling by the Ombudsman that the State has acted illegally in refusing the allowance to people over 66 years of age.
Mr Gilmore said they would seek further legal advice on the issue and wanted to resolve the issue in a way that was "reasonable, sustainable and does not cause undue distress" to people receiving the allowance.
He said they did not wish to withdraw the allowance from those in receipt of the payment, made to people unable to walk.
Sinn Féin deputy leader Mary Lou McDonald, who raised the issue on leaders' questions this morning, said there was no need for further legal advice, that the State was acting illegally and had knowingly done so since 2008 in withholding the allowance from those older than 66.
The payment, which is made to some 45,000 people, is worth a maximum of €208.50 a month.
A report by Ombudsman Emily O’Reilly said the Minister for Health James Reilly was breaking the law and rejecting international human rights principles by failing to remove an upper age limit to an allowance for people with disabilities.
The Ombudsman's report says the failure of Dr Reilly's department to make a mobility allowance available to people older than 66 “raises fundamental questions about the strength of our commitment to international human rights norms”.
“The continued failure of the department to tackle this issue suggests it has a very weak sense of the importance of supporting human rights principles and, indeed, a very weak sense of the rule of law and of its obligation to act in accordance with the law,” according to a special report to the Oireachtas published today.
The department originally promised last year to review the mobility allowance scheme but is now saying it cannot afford to make the changes recommended by the ombudsman.
Implementing these would “ignore the very serious financial constraints” on the State and “create liabilities that the State could not afford”, department secretary general Ambrose McLoughlin said in a letter this week.
The report says the department has been operating a scheme for the past 12 years on the basis of a condition that was illegal and that it has known to be illegal for the past four years. Despite having agreed last year to remove the upper age limit from the scheme, it failed to do so. As a consequence, it has knowingly allowed the scheme to continue in operation on the basis of an illegality.
Speaking this morning Ms O’Reilly said when the scheme was introduced in 1979 the upper age limit was legal however when the Equal Status Act became legislation in 2000 the State could no longer discriminate on grounds of age.
Ms O’Reilly said while the Department originally appeared prepared to act on the issue in the “last number of weeks it became clear they weren’t going to accept our recommendations”.
“I have sympathy for the Government and the rest of us who are about to come under the cosh with €3.5 billion reduction in terms of the monen that can be spent on public services…But I think it is simply unacceptable for State to act outside the law,” she told RTÉ.
“I think basically they are trying to string this out….They have to remove the cap,” she added.
Since the department originally agreed to change the scheme, five new complaints have been made by people who were refused the allowance. These were from people ranging in age from 67 to 91 years.
The allowance is a monthly payment by the HSE to people with a severe disability “who are unable to walk and who would benefit from occasional trips away from home”.
The latest report from Ms O’Reilly is a follow-up to an earlier report, published in April 2011. The department accepted the finding in this report that the age limit was illegal and said it would revise the scheme within six months.
Responding to the department’s contention the State cannot afford to remove the age limit, the ombudsman said that “the continuing disregard of the law by a key State body is not something we can afford”.