Lawyers representing elderly people who had their pensions illegally deducted to pay for their nursing home care are expected to argue that €2,000 "goodwill" payments from the State totalling €40 million should be separate from any future repayments.
The Government decided to make the ex gratia payments when it introduced legislation in the Dáil last year seeking to legalise the practice of charging medical card holders for staying in public long-stay beds.
Following last week's Supreme Court ruling, repayments to former patients and their families who were illegally charged will cost between €500 million and €1.2 billion, according to Government sources.
Some solicitors are arguing that the "goodwill" payments are separate and should not be included in any of the repayments.
A spokesman for the Department of Health, however, said this issue would be considered by the Cabinet sub-committee which is examining how the Government will respond to the Supreme Court ruling.
Mr Bryan Fox of Fox & Co Solicitors, who is handling around 50 cases involving illegal payments, said that legally the ex gratia payments were unconnected to wider repayments. "These were paid on an ex gratia basis, they were made out of the goodness of the Minister's heart, if you like. It seems to me that someone should be able to keep this payment and claim what they are owed," Mr Fox said.
The issue is likely to come into sharper focus if the Government decides to apply the six-year statute of limitations to any repayments. This would bar many older people or their families from automatically recovering illegally-deducted money from their pensions.
Ms Geraldine Clarke, a solicitor appointed by the Supreme Court to argue against the constitutionality of the Government legislation, said she would expect many claims to separate the "goodwill" payments and later repayments if people feel they are losing out because their claims are statute-barred.
The Government, however, is likely to argue that the ex gratia payments will form part of the wider repayments.
While the Minister for Health, Ms Harney, told the Dáil in December the payments were a "goodwill gesture", she suggested that they were also repayments for the illegal charges.
Already some €15.8 million in ex gratia payments have been made to more than 8,000 nursing home residents.
