Legalities may block efforts to recoup executives’ top-ups

Any attempt to either stop or recoup controversial top-up allowances paid to senior staff in health agencies may run into legal obstacles, according to unpublished Government documents.

Minister for Health James Reilly has pledged to cease and recoup, if possible, unauthorised payments to senior executives in State-funded voluntary hospitals and health agencies.

However an internal memo drawn up by Government officials in relation to the practice states that existing laws may not be suitable for use in clawing back these payments.

The email, dated April 2013, from a senior Department of Health official to another official in the Health Service Executive, outlines some potential legal difficulties.

Approved amount
The use of legislation which provides for the recovery of any overpayments made to public servants at a rate greater than the approved amount was discussed by officials.

“Use of the Fempi [Financial Emergency Measures in Public Interest Act 2009] to address historical breaches of approved rates are not likely to be viable as provisions of the Act are aimed at ensuring compliance with pay policy, subsequent to its enactment and couldn’t be applied retrospectively,” the email states.

“However, if there has been a failure to implement Fempi reductions or to award increases from public funds contrary to its terms, the provisions of the Act would be applicable.”

An internal HSE audit into these allowances has also flagged potential legal issues regarding the payments.

Remuneration levels
In recent years, the executive sought legal advice over whether it could direct non- statutory disability agencies in relation to the remuneration levels of senior managers, as a condition of funding under service-level arrangements.

“However, it highlighted potential issues regarding existing contractual arrangements,” the audit states.

The heads of the HSE and the Department of Health, meanwhile, are due to appear before the Public Accounts Committee this week as part of an investigation into top-up payments for senior executives.