The Price of Accountability by Dr Fiona Donson

Accountability is lost in the axing of the Mobility Allowance scheme

The decision by the Department of Health to close two disability schemes – the Mobility Allowance andMotorised Transport Grant – following sustained criticism of their operation by the Ombudsman raises some serious questions about the effective operation of accountability mechanisms concerning government departments; not least whether Government Departments are both willing and able to respond to structural criticisms.

The Department of Health closed the two mobility schemes on the 26th February 2013 to new applicants, and current recipients (4700: mobility allowance and 300: motorised transport grant) will lose their benefits on the 26th June 2013. No indication was given as to what would replace the schemes, not least because the Department has been unable to devise a lawful and effective mechanism within their apportioned budget of €10.6 million. In announcing the end of the schemes, Minister Kathleen Lynch T.D. stated that the Government had “agonised” over its decision, had found all alternatives to be illegal and thus had no choice but to end the schemes. The impression created is of a department striving to find a solution but being given no space by the law to fix the problem. However, the detailsof this saga reveal asomewhat different picture.

History of the illegality findings

The first formal finding of illegality in relation to these schemes came in 2011 with the launch of the Ombudsman Office report “Too Old to Be Equal”which found that Mobility Allowance scheme to be in breach of the Equal Status Act 2000 because the benefit was only available to those under 66 years old. This age restriction was not absolute, however, as those in receipt of Mobility Allowance before reaching the age of 66 continued to receive their allowance payments after that age. The report found that the Department of Health was aware of the illegality of the upper age limit, but that it had shown no “sense of urgency” to make the scheme compatible eleven years after the Equal Status Act had been passed. This despite having received similar warnings from the Equality Authority when it published a case report in 2008 relating to the Motorised Transport Grant following which the Department removed the upper age limit.

The Ombudsmanrecommended that the Department review the scheme and revise it to ensure compliance with equality legislation and that this be completed within a 6 month period. There was no recommendation as to how the scheme should be amended, but an emphasis that it should be compliant with the law.

In April 2011 the Department accepted the recommendation and agreed to carry out the review but then took no action. As a result the Ombudsman’s2011 Annual Reportstrongly condemned the Department’s failure:

“In my original Investigation Report I observed that the apparent inability of the department to deal with issues, such as the inclusion of an illegal condition in the Mobility Allowance Scheme, leaves it open ‘to the perception that it is unconcerned with the fact that it is operating a scheme which is at odds both with the law of the land and with human rights law more generally.’ More than a year later, the Department had not shown that this perception is unwarranted.”

One might assume that such strong criticism in a report from the Ombudsman would prompt a reaction, yet the Department continued to prevaricate with the result that a follow-up reportwas published in 2012 under section 6(5) of theOmbudsman Act 1980.

At this point the department statedthat it was in fact unable to act on the advice because it “would create liabilities the State could not afford”. The Office of the Ombudsman rejected that approach criticizing the

“attempt of the Department to represent its position as a common sense response to an unfortunate situation in which, in order to target limited resources effectively, it is necessary to infringe on the law. There are options to be considered on how best to use scarce resources. Breaking the law is not one of those options.”

The continuing violation of the law, and resultant complaints to both the Ombudsman and the Equality Tribunal, were in fact creatingliabilities to individuals who had been discriminated against by the illegal system. We do not have a figure as to how much the department paid in settling these liabilities but the “Too Old to Be Equal” report prompted a payment of €6000 to the family of the deceased original complainant in 2011.

The Department of Health’s response and accountability principles

The position of the Department of Health, in relation to this investigation,clearly conflicts withfundamentalaccountability principles.

  1. Integrity and trust – the public should be able to trust the state to act with integrity in areas of complexity particularly against a background of scarce resources. Unfortunately, the Department of Health has consistently failed to engender trust in its actions in this area. For example, representatives of the Department, including Minister of Health Reilly, gave evidence before the Joint Oireachtas Committee on Public Service, Oversight and Petitions on February 6th 2013. The hearing considered the operation of the schemes and discussed options, but at no point during the hearing did Department ofHealth officials indicate that the schemes were likely to be abandoned within three weeks of the hearing. The Minister announced the appointment of an external expert to review the transport needs of people with disabilities and Minister Lynch commented that “The comprehensive review required will be considered and if that can be done in a shorter period than six months we will be very happy. We need to emphasise again than this should not be an exercise that will drive fear into people.” That review has now developed into a “project group”designed to examine the schemes and recommend a solution, howeverthe likelihood of it agreeing on, andthen implementing such a solution within four months is improbable given the failure of the department to find a workable solution since 2011. It is in fact unclear as to whether the Department thinks that a solution is possible, if it is then one must question why they scrapped the schemes in advance of announcing its replacement. A more cynical view might be that they have concluded there is no acceptable solution, whether on cost or legal grounds, and that the project group is a way of legitimising the final termination of mobility supports.
  2. Honesty and transparency – State agencies should act in an open and honest way; if there was a danger that the Mobility Allowance Scheme was to be abolished or altered people affected should have been given the necessary information. However, as noted above, there was no warning. The statement by Minister Lynch in the Dáil that this “has not come as a bolt out of the blue for anyone” is therefore somewhat disingenuous– it was certainly known that something had to be done, but not that the Department would leave vulnerable people unsupported. Indeed, the Disability Federation of Ireland stated on RTÉs Morning Irelandthe morning after the announcement that the closure of the schemes had come “out of the blue” and that there had been no consultation with disability groups. The failure to consult and the high handed nature of the decision to cancel the schemes therefore casts doubt on the limited guarantees made as to future support in this area. The department’sstatementthat the decision was not a cut and that €10.6 million remained “committed to meeting the transport needs of relevant people” is a hollow commitment when it is placed alongside the Minister Lynch’s reassurance thata “full Government approach” examing how to introduce a universally accessible transport system was being carried out. That suggests a shift away from disability benefits moving the money to transport.
  3. Fundamental human rights norms – the apparent willingness of the Department of Health to override the fundamental principle of equality because of cost concerns appears to indicate, as the Ombudsman stated in her follow up report, that “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.”The problem is that equality here, according to the department, would cost the state somewhere between €170million and €300 million. The cost of cutting the scheme completely and making everyone equally immobile is attractive on paper, though the knock on costs of the loss of access to jobs, family and community for those affected is unquantifiable in financial terms.

Accountability failures

The accountability context of this decision of Department of Health is extremely illuminating as regards the government’s overall attitude to the rule of law and the need to respect our mechanisms of accountability. In October 2012, the Government announced the expansion of the jurisdiction of the Ombudsman and finally steered through the long awaited Ombudsman (Amendment) Act 2012. This process involved a clear political endorsement of the Ombudsman as a key champion of the people. Yet at the same time, a major State Department was failing in its responsibility to follow her recommendations and bring an important disability scheme into line with the law. The Ombudsman used that moment, in an example of “the mobilisation of shame” to launch the follow-up report on “Too Old to be Equal”. However, it appears that the impact of both that report and the later hearings before the Joint Oireachtas Committee in February 2013 was to prompt the Department into what appears to be an impetuous decision of cancellation rather than to encourage a thoughtful response that would bring it in line with the rule of law and wider accountability and human rights principles.

The behaviour of the department over the last three years has therefore embodied the attitudes of resistance and unresponsiveness which undermine Government statements claiming that the Office of the Ombudsman, and an expansion of its remit, is essential for “ensuring that fair treatment is always provided” to the public and to achieving improved accountability in public bodies. There is clearly a tension in government between the acceptance of the need for an institution such as the Ombudsman and the rejection of its findings on the ground in situations, such as the mobility allowance, where those findings challengeestablished administrative practice or make life inconvenient for government.

For its part, the Office of the Ombudsman has maintained the moral high ground in this dispute. It might be criticised for failing to offer, from the start, any solutions to the breach of equality, though it would argue that it is not in a position to provide policy answers. By not engaging with the detail in the aftermath of its report, but focusing on the accountability framework it has maintained a consistently detached position from the rather murky political fray. Yet at the same time, has become a thorn in the side of the Department of Health, to such an extent that there is a clear problem in the relationship between the two as identified by the Joint Oireachtas Committee earlier this year.

As to solutions, it may be that the most obvious is one that maintains the discrimination, something the Ombudsman would have been reluctant to recommend. As Mel Cousins has argued, placing of the scheme on a statutory footing might have been sufficient to avoid a finding of illegality. And this point is important – the mobility allowance scheme, like so much of our government, operated with no statutory foundation and on the basis of unpublished guidelines. Whilst this was perhaps once normal, it is no longer acceptable to ignore accepted principles ofaccountability and the rule of law by allowing such administrative mechanisms to operate without transparency, openness and apparent fairness.