Sinn Féin wants to target the government for resisting reimbursement of ‘illegal’ care home fees

Former health ministers Leo Varadkar and Micheál Martin face questions this week about historical evidence that the state had no legal basis to burden families for caring for their elderly relatives.

At the weekend it did not turn out that the compensation for all affected families would have cost the state around 13 billion euros.

Sinn Féin wants answers on what the two men knew and when, after leaked internal government papers appeared to show a determination to force people to seek damages rather than redress.

The leaked documentation, published in the Irish Mail on Sundaycontains a series of memos that refer to a legal strategy that appears aimed at minimizing costs to the state – while impoverishing some people from the illegally collected care bills.

The problem stems from the realization that there may not have been a legal basis for charging patients for government-subsidized care in nursing homes – with doubts that were evident 20 years ago and possibly beyond. The cure was the creation of Mary Harney’s fair deal scheme. But her immediate predecessor as health minister was Fianna Fáil leader Micheál Martin.

A whistleblower presented the newspaper with a dossier worth 13 billion euros. In order to avoid such an enormous effort, a strategy was said to have been developed to bury the lack of legal basis or at least to claim that legality could be upheld by a court, meaning that liability was effectively denied.

Nonetheless, hundreds of court cases were instituted, the strategy being for the state to resist any admission.

It was only when the families had reached the point where the discovery process was imminent – when the state would have to release all relevant papers in its possession – that settlements were sought. In such cases, the amounts tacitly paid accounted for between 40 and 60 percent of the amounts claimed.

No individual case has been brought to court to establish liability in the manner later developed by Vicky Phelan in the cervical cancer scandal.

“It means the state took advantage of low-income people who were affected by paying illegal levies and who then didn’t have the resources to sue,” said David Cullinane, Sinn Féin’s health spokesman

The issue will now be raised in the Dáil this week, with Mr Cullinane Taoiseach calling on Leo Varadkar and Health Secretary Stephen Donnelly to make statements.

There was no immediate response to claims of a secret strategy to deny families full access to illegal nursing home fee refunds.

But it was well known around Leinster House by the turn of the century that there was at least a question mark over whether charges of lack of statutory authorization should have been brought. Many of those billed had full medical records.

Mr Cullinane called on the Government to declassify all related documents to ensure full transparency after one of the leaked memos said that “confidentiality was a key element of the legal strategy”.