Nursing home charges advice ‘sound, accurate and appropriate’, Attorney General concludes

Rossa Fanning argues that litigation is by nature ‘adversarial’

The legal advice on claims against the State arising from private nursing home charges levied on people with medical cards was “sound, accurate and appropriate”, the Attorney General has concluded.

Attorney General Rossa Fanning’s report comes after a review of files by his office on the issues of nursing home charges and the separate controversy over the non-payment of disability allowance.

He issued a strong defence of the legal advice given to the State in relation to claims arising from nursing home charges.

In his report, Mr Fanning writes: “There is and was nothing inappropriate in the advice provided by the Office and my predecessors to previous Governments on these matters.”


He also writes that it was never the case that the State intended to pay for private residential care for citizens, and that the State had “multiple grounds of viable legal defence” in the cases taken against it.

On the second issue that Mr Fanning’s report examines, the non-payment of Disabled Person’s Maintenance Allowance (DPMA) to people who were in residential care, he finds that the State was exposed for a period of time between 1983 and 1996 when the practice had no basis in law.

However, he says, it does not follow that the State was legally obliged to pay compensation.

Department of Health whistleblower Shane Corr, whose public disclosures revealed details of the State’s legal strategy for responding to claims for refunds of nursing home charges, queried the Attorney General’s conclusions.

“If the advice was sound, accurate and appropriate, then why was it the subject of a secret memo?” he said, referring to a 2011 Government memo labelled “secret” which set out the State’s legal containment strategy. “More importantly, why did the State settle cases?”

Mr Fanning’s report concluded that litigation was, by its nature, adversarial and that each side has a strategy and “a fundamental legal right to keep that strategy confidential”.

“There is nothing whatsoever sinister about that,” he writes.

He also defended the practice of settling claims before they went to court, writing: “This is the very opposite of ‘dragging plaintiffs through the courts’, which is what the State is sometimes criticised for when it does not settle cases brought against it.”

Opposition politicians last night continued to raise questions about the nursing homes charges controversy, and there will be a Dáil debate on the matter on Thursday.

Cormac McQuinn

Cormac McQuinn

Cormac McQuinn is a Political Correspondent at The Irish Times

Pat Leahy

Pat Leahy

Pat Leahy is Political Editor of The Irish Times

Simon Carswell

Simon Carswell

Simon Carswell is The Irish Times’s Public Affairs Editor and former Washington correspondent