State has settled 80 nursing home fee lawsuits in four years, leaked memo claims

49 settlements were negotiated by Fine Gael TD Colm Burke on behalf of clients at his law firm. Fourteen lawsuits were dropped by plaintiffs over the period 2013-2016, the filing shows, while settlement talks continued in eight cases.

The government said last week that legal challenges over care home fee reimbursements have been settled in a limited number of cases where “aggravating factors” emerged. According to the leaked 2011 memo, the government was facing around 300 court cases at the time, meaning that if leaked records from the Department of Health are correct, almost a quarter of all cases have been settled.

Mr Burke, TD for Cork North Central, said this weekend he believes health card holders who have had to pay for private care in a care home because they were unable to find a bed in a public care home are “entitled” to a refund by the state.

“The problem is that in 2004 and 2005 I wore a different cap and my attitude was that I wanted to do what was best for my clients,” said Mr. Burke, who is a member of the Oireachtas Health Committee.

“And my stance would still be that if a person had a medical card and could show they checked out a public bed, my stance is that those people are entitled to claim compensation for the monies that they have.” paid for themselves or their families.”

His stance puts him at odds with Taoiseach Leo Varadkar, who has defended a secret, longstanding legal strategy to attack people who apply for nursing home fees as “legitimate” by saying there is no entitlement to private nursing home care for owners of give health cards.

The strategy was disclosed in a 2011 memo released in a protected disclosure by a whistleblower last weekend. The policy was to settle cases in strict confidence once they reached the point of document discovery to prevent publicity and further claims. The potential liability to the state was estimated at up to 12 billion euros in payments to those affected.

Mr Burke pointed out that the legality or illegality of the fees imposed on health card holders to avail private beds in nursing homes has never been decided by the courts, as the cases were settled before that time.

The TD, who has served at least 70 clients, said lawsuits by his firm and another more than two decades ago led to a change in the law about illegally indicting residents of public nursing homes. “Our advice was very clear if you had a medical card – our legal advice was that you were not entitled to a free nursing home bed,” he said.

“But our argument was that if they had a medical card and had sought a public bed in a public nursing home, they were at a disadvantage and they should have been entitled to money.”

Bryan Fox, whose Dublin law firm has acted for a number of clients seeking reimbursement of care home fees, said his clients spent between €30,000 and €100,000 on private care home fees.

“The clients were health card holders who couldn’t get a public nursing home bed and had to pay for private care in a nursing home,” Mr Fox said.​

“Two of my clients sold their homes to pay the fees. But that wasn’t the rule. For some of my customers it wouldn’t have stopped them from putting bread on the table. But for some of them it would have been. They felt it was a real need.”

He said that after the lead counsel’s advice, “it was pretty obvious to us that these people shouldn’t have been charged, and we were willing to take their cases without charge and without charge.”

The claims at the heart of the current controversy are all historical. Free care in nursing homes was replaced in 2009 by a subsidy known as the Fair Deal.

Ministers allegedly briefed on the legal approach to care home cases included Mr Varadkar, as well as Tánaiste Micheál Martin and Simon Harris and Helen McEntee, according to internal Health Department records