Baby Home Schemes

Mother and Baby Institutions Payment Scheme Act 2022

The primary purpose of this Act is to establish a payment scheme, in recognition of the circumstances experienced by certain people while they were resident in Mother and Baby and County Home Institutions in the State. The Scheme will make payments to eligible applicants and will make available without charge, certain health services to eligible applicants, via the mechanism of an enhanced medical card.

The Act also provides for the establishment of an Office to be known as the ‘Office of the Chief Deciding Officer of the Mother and Baby Institutions Payment Scheme’ within the Department of Children, Equality, Disability, Integration and Youth, to administer the Payment Scheme and sets out the functions that will be performed by the Chief Deciding Officer who will be independent of the Minister in respect of the performance of these functions.

A relevant person” is eligible to apply to the Scheme and is defined as a person who is either or both of the following:

a person who, while the person was a child, was resident in a relevant institution other than in circumstances referred to in paragraph (b);
a person who, while the person was a child or while the person was an adult, or both, was resident in a relevant institution for reasons relating to the person’s pregnancy, or the birth or care of the child born as a result of the pregnancy.

The Act also sets out that a person shall be considered to have been resident in a relevant institution where he or she-

was born in, or admitted as a resident to, and
spent not less than one night in, the institution.

Expenses, incurred by the Minister for Children, Equality, Disability, Integration and Youth in administering payments under the Scheme, or the Minister for Health in providing for health services to be made available free of charge to eligible applicants, shall be paid out of monies provided by the Oireachtas.

Duration of Scheme

The Act provides that the Scheme shall close no later than five years after its establishment date. The Minister may specify, by Ministerial order, a date for the Scheme to close and that date should be at least one year after the date on which the order is made. The Act also provides that this Act will continue to apply in respect of any applications received before the closing date of the Scheme.

Chief Deciding Officer

The Act provides for the establishment of the Office of the Chief Deciding Officer of the Mother and Baby Institutions Payment Scheme within the Department of Children, Equality, Disability, Integration and Youth.

The Act provides that the Minister will appoint the Chief Deciding Officer from among his or her officers and that the Chief Deciding Officer will hold office on the terms and conditions set by the Minister, with the approval of the Minister for Public Expenditure and Reform. The Minister can remove the Chief Deciding Officer from office under certain circumstances, and lists a number of criteria that will make a person ineligible from holding, or continuing to hold, the role of Chief Deciding Officer.

The Act also provides for the Minister to appoint as many of his or her officers as he or she thinks reasonable to be members of staff of the Office of the Chief Deciding Officer to assist the Chief Deciding Officer in performing his or her functions.

The Act sets out the functions of the Chief Deciding Officer which include examining applications; determining the entitlement of applicants to payments, and their eligibility for the provision to them of health services without charge; notifying the Health Service Executive of an applicant’s eligibility for the provision to them of health services without charge; carrying out reviews of determinations; assigning appeals officers to consider appeals; undertaking a public information campaign to raise awareness about the Scheme, including the deadline for applications, and performing any additional functions conferred on him or her by regulations.

The Act provides that the Chief Deciding Officer will be independent in the performance of these functions and also allows for the functions to be performed by his or her staff, under his or her supervision and control.

The Act provides that the Chief Deciding Officer will designate a member of his or her staff to be the Deputy Chief Deciding Officer. The Deputy Chief Deciding Officer will perform the functions of the Chief Deciding Officer when the Chief Deciding Officer is absent or is, for any other reason, unable to perform his or her functions, or when the position of Chief Deciding Officer is vacant.

The Act provides for the Minister to enter into an agreement with a third party to carry out certain specified functions of the Chief Deciding Officer. These functions would be carried out under the supervision and control of the Chief Deciding Officer and the Chief Deciding Officer remains responsible to the Minister for the performance of all functions. The following functions are not permitted to be carried out by a third party: the preparation of the Annual Report on the Scheme, assigning an appeals officer to consider an appeal, and searches of the database and records of the Commission of Investigation into Mother and Baby Homes.

Annual Report

The Act provides that the Chief Deciding Officer shall prepare and adopt an annual report not later than 30 June each year in relation to the performance of the functions of the Chief Deciding Officer during the preceding calendar year. If the first annual report would relate to a period of less than 6 months, a report may instead be made for the period to the end of that year and the following full year, and should be submitted to the Minister as soon as possible but not more than 6 months after the end of that full year. The annual report will not identify any applicant or other persons referred to in applications by name.

The Minister will lay copies of the annual report before each House of the Oireachtas.

Eligibility of relevant person for certain payments and provision of services

The Act sets out the eligibility criteria for the payments and services available under the Scheme, i.e. the general payment, the work-related payment, the provision of health services without charge, and the health support payment.

Payments

A person who was resident as a child in an institution listed in Schedule 1 for at least 180 days will be entitled to a general payment. The amount of the payment will reflect the length of time spent in the institution and, therefore, be determined with reference to the table in Schedule 2.

A person who was resident as a mother in an institution listed in Schedule 1 will be entitled to a general payment, the amount of which will reflect the length of time spent in the institution and, therefore, be determined with reference to the table in Schedule 3.

A person who was resident as a mother in an institution listed in Part 1 of Schedule 1 for at least 90 days will be entitled to a work-related payment, the amount of which will reflect the length of time spent in the institution and, therefore, be determined with reference to the table in Schedule 3.

A person who was resident as a mother or a child, or both, in an institution listed in Schedule 1 for at least 180 days will be eligible for the provision to him or her without charge of the health services specified. This will be operationalised by the provision to the eligible applicant of a form of enhanced medical card.

Where a person who is eligible for the enhanced medical card is not ordinarily resident in the State, he or she may choose instead to apply for a once-off health support payment of €3000.

It provides that a person will not be entitled to a general payment under the Scheme if he or she previously received an award from the Residential Institutions Redress Scheme in respect of circumstances arising in the same institution, while he or she was resident there as a child. A person will not be entitled to a general payment or work-related payment if he or she previously received an award from court or a settlement in respect of an action arising out of any circumstances relating to the same period of residence in the institution.

A person will not be eligible to receive a form of enhanced medical card or entitled to a health support payment under the Scheme if he or she already has access, without charge, to the health services provided through this Act through the Magdalen Restorative Justice Ex-Gratia Scheme.

Payment or provision of services under Scheme

The Act provides that a relevant person can make an application to the Chief Deciding Officer for any or all of the payments available under the Scheme and the provision to him or her of health services without charge (i.e. the form of enhanced medical card). Applications will be accepted until the closing date of the Scheme and one application can cover time spent in different institutions as a child and/or as a mother. Therefore, only one application should be made to the Scheme. The only exception to this is where an additional institution is added to Schedule 1, and a person makes a further application in respect of that institution in accordance with the Act .

The Act sets out what information should be supplied in an application. Further application where relevant institution added to Schedule 1.

The Act provides for an applicant to make a further application to the Scheme where another institution in which he or she resided is added to the list of institutions covered by the Scheme in Schedule 1. Where a further application is made, the total number of days spent by the applicant in all relevant institutions, i.e. the number of days established from their first application and then the additional number of days from their further application, will be used to determine the applicant’s entitlement to additional payments and eligibility for the provision to them of health services without charge as appropriate.

Examination of application: general

The Act provides for the way in which the Chief Deciding Officer will examine applications. An acknowledgement of an application should issue to an applicant within 28 days. The process of examining applications will be with a view to determining, with reference to what has been applied for in the application, the applicant’s entitlement under the Act 13 to payments and their eligibility for the provision of health services without charge to them.

Where an application is not accompanied by the necessary information the Chief Deciding Officer may reasonably require in order to examine the application, the Chief Deciding Officer will request the applicant to provide the information required.

The Chief Deciding Officer will complete their examination of an application and make their determination as soon as practicable. He or she may also prioritise the examination of applications where he or she considers it is in the interest of fairness and efficiency to do so, having regard in particular to the personal circumstances, including the age and state of health, of the applicant.

In examining an application under the Act, the Chief Deciding Officer will establish the identity of the applicant; whether the applicant is a relevant person; calculate the time spent by the applicant in a relevant institution; and where the application is for a health support payment, establish that the applicant is not ordinarily resident in the State.

For the purposes of his or her examination under the Act, the Chief Deciding Officer will have regard to the information provided by applicants, along with information which may be provided by an information source or other person at the request of the Chief Deciding Officer, and any information accessed in the database and records of the Commission of Investigation into Mother and Baby Homes.

Chief Deciding Officer may request information

The Chief Deciding Officer may, where necessary and proportionate, request an information source that holds information relating to the applicant to share such information with him or her. The intended purpose of this is to establish or verify an applicant’s residence and length of residence in an institution listed in Schedule 1. A request for information in this regard should comply with provisions set out in the Act and an information source should comply with a request from the Chief Deciding Officer within the period specified in the request or within a further time period agreed in writing between the Chief Deciding Officer and the information source.

The Act provides for the Chief Deciding Officer to have the capacity to request an affidavit from an applicant for the purposes of examining an application, if it is his or her opinion that the information available is not sufficient for the purposes of examining the application or the information provided by the applicant is inconsistent with the information contained in the records available. A request to provide an affidavit will only be made where the Chief Deciding Officer believes it is necessary to do so for the purposes of examining the application.

Calculation of period of residence

The Act provides that, in calculating an applicant’s period(s) of residence in one or more relevant institutions, the Chief Deciding Officer will calculate the number of days of each period of residence in a relevant institution and the combined total of all periods of residence in a relevant institution. Where an applicant was resident as a child and a mother at different times, the eligibility criteria will be applied accordingly.

The Act also provides that the date of entry to the institution and the date of discharge will be included in the calculation and that a temporary absence from the institution will be included in the calculation where such absence was for a period of less than 180 days.

The Act sets out that a person is considered to have been temporarily absent where he or she spent at least a day away from the institution and returned for at least one night before being discharged. The meaning of “admission date”, “discharge date”, “period of residence” and “temporary absence period” in the Act are all provided for.

Determination of application

The Act provides for the Chief Deciding Officer to determine the payments to which the applicant is entitled, and the provision of services for which the applicant is eligible. Where an application is for a health support payment and the Chief Deciding Officer is not satisfied that the applicant is not ordinarily resident in the State but satisfied that the applicant is eligible for the provision to him or her of health services without charge, the Chief Deciding Officer can make a determination to that effect.

The Act provides for the Chief Deciding Officer to notify the applicant in writing of his or her determination as soon as practicable after making the determination. The notification will include a determination on whether or not the person satisfies the definition of a “relevant person” and determinations as to each payment or service for which the applicant applied. The notification will also include an offer of any relevant payment amount(s), the effects of accepting a payment, , which include; the timelines for accepting or rejecting a payment; the requirement when accepting an offer to agree to waive any right of action against a public body or to discontinue any other proceedings taken against such public body, arising out of the circumstances to which the application to the Scheme related; and effects in relation to the Statute of Limitations. Finally, the notification will include a statement of the entitlement of an applicant to seek a review.

Review of determination

The Act provides for an applicant to request a review of one or more of the following circumstances:

where it is determined that the applicant is not a relevant person;
where it is determined that the applicant is not entitled to a payment;
where it is determined that the applicant is entitled to a payment of a particular amount;
where it is determined that the applicant is not eligible for the provision to him or her of health services without charge;
where it is determined that the applicant is not entitled to a heath support payment.

The review must be requested within 60 days of receiving the determination on their application from the Chief Deciding Officer.

The Act specifies that a request for review will be in such form and made in such manner as may be prescribed in regulations, and will be accompanied by a statement of the reasons for the request, and by such documents as may be prescribed.

In carrying out a review, the Chief Deciding Officer will have regard to any regulations in relation to the conduct of reviews, made under the Act 38, and will decide the matter which is the subject of the review as if it were being decided for the first time. The Act sets out the submissions and information which will be considered in the review process.

The Chief Deciding Officer may decide to affirm, or vary, the determination under review and will notify the applicant of his or her decision not later than 20 days after the making of his or her decision. The notification will also include an offer of any relevant payment amount(s) and a statement of the entitlement of an applicant to appeal the decision.

Appeals

The Act provides for the appointment by the Minister of a panel of “appeals officers” to consider appeals. An appeals officer will be independent in the performance of his or her functions under the Act. The conditions of their appointment will be agreed with the Minister for Public Expenditure and Reform.

The Minister may revoke the appointment of an appeals officer for stated reasons.

The Act provides for an applicant to request an appeal of a determination made by the Chief Deciding Officer i.e. a determination made after undertaking a review. An applicant may request an appeal within 60 days of receiving the notification of a review determination under and the Chief Deciding Officer will assign the appeal to an appeals officer without delay.

The Act specifies that a request for appeal will be in such form and made in such manner as may be prescribed in regulations, and will be accompanied by a statement of the reasons for the request, and by such documents as may be prescribed.

An appeals officer considering an appeal will have regard to any regulations in relation to the conduct of appeals, made and will decide the matter which is the subject of the appeal as if it were being decided for the first time. The Act sets out the submissions and information which will be considered in the appeal process. The appeals officer will prepare a report setting out their determination, including the reasons for it, and send a copy of the report to the Chief Deciding Officer. The appeals officer may affirm or vary the decision the subject of the appeal, or refer it back to the Chief Deciding Officer for re-examination, with such directions as the appeals officer considers appropriate.

Where an appeals officer affirms or varies a determination, the Chief Deciding Officer will notify the applicant and send a copy of the appeals officer’s report to the applicant within 20 days. The notification will also include an offer of any relevant payment amount(s) and a statement of the right of the applicant to appeal the determination to the High Court.

Where the determination of the appeals officer is to refer the matter back to the Chief Deciding Officer, the Chief Deciding Officer shall arrange for the matter to be re-examined and not later than 20 days after the making of the determination, notify the applicant in writing of the determination.

The Act provides for the Chief Deciding Officer, within 28 days of the date on which the report of the appeals officer is sent to him or her, or an applicant, within 28 days of the date on which a notification is sent to him or her, to appeal the determination concerned to the High Court on a point of law. A decision of the High Court following an appeal shall, where appropriate, specify the period within which effect shall be given to the decision, and be final and conclusive.

Offer of general payment or work-related payment

The Act provides that where an offer is made to an applicant, the applicant may within six months of the date on which the notification concerned is sent to him or her, or a longer period if so prescribed, accept or reject the offer. In a case where an applicant wishes to withdraw, review or appeal a determination, the applicant can accept the previous offer that was issued to him or her within six months of the date of the withdrawal.

An applicant will accept an offer by providing a statement in writing to the Chief Deciding Officer stating that he or she accepts the offer and agrees to waive any right of action which the applicant may otherwise have had against a public body and to discontinue any other proceedings he or she had taken against such public body, arising out of the circumstances to which the application to the Scheme related.

Where an applicant wishes to reject an offer made to him or her, he or she will do so in writing or, if an applicant does not inform the Chief Deciding Officer as to whether he or she chooses to accept or reject the offer within the allotted time periods, he or she will be deemed to have rejected the offer.

The Act provides that where an applicant accepts an offer of a general payment or work-related payment, the Chief Deciding Officer will cause the payment to be made to the applicant as soon as practicable. The Act also provides that an applicant who receives a payment will not institute civil proceedings arising out of the same, or substantially the same, circumstances as the circumstances to which his or her application related.

Statute of Limitations

The Act provides that where a person has made an application to the Scheme and that application was subsequently withdrawn or the applicant rejected an offer made to them, then the period of time during which the application was being considered will not be relied on for the purpose of the Statute of Limitations if the applicant decides to take a case to court instead of engaging further with the Mother and Baby Institutions Payment Scheme.

Offer of provision of health services without charge

The Act provides for an applicant to whom an offer of the provision of health services without charge is made (i.e. the offer of an enhanced medical card), to accept or reject the offer within six months of receiving the offer.

Where an applicant accepts the offer, the Chief Deciding Officer will, as soon as is practicable, notify the Health Service Executive of the applicant’s eligibility for the provision to him or her without charge of the services specified in the Act. The Health Service Executive will then make the services available without charge to the applicant concerned.

The Act sets out that an applicant to whom an offer of a health support payment is made, may accept or reject that offer within six months of the date on which the notification is sent to him or her, or such longer period as may be prescribed. Where an applicant, accepts an offer, the Chief Deciding Officer will ensure that the health support payment is made to the applicant as soon as is practicable.

Application on behalf of another

The Act provides for a person to be able to apply to the Scheme on behalf of a relevant person under the particular circumstances set out where the relevant person does not have the capacity to apply themselves. In those circumstances, any reference to a relevant person or an applicant in the Act, will be understood to refer to the person making the application on behalf of the relevant person concerned.

The Act provides for an application to be made on behalf of a deceased relevant person where the person has died on or after 13 January 2021 (the date on which the State Apology was made) and prior to making an application under this Act. In these circumstances, the personal representative of the deceased relevant person may apply for a general payment or work-related payment for the benefit of the estate of the deceased relevant person. The Act sets out that “personal representative” has the meaning assigned to it by the Succession Act 1965, i.e. the executor or the administrator for the time being of a deceased person.

Where a payment is to be made, the Chief Deciding Officer will direct that the payment be paid to the personal representative and the personal representative will treat the award as if it had been paid to the deceased relevant person immediately prior to his or her death.

Application process to continue where applicant dies

Where an applicant dies after making an application, but before the process is complete, his or her personal representative may proceed with the application if he or she notifies the Chief Deciding Officer that this is his or her intention and provides their personal information, as required by the Chief Deciding Officer to perform his or her functions under the Act.

If the health support payment or the provision to the applicant of health services without charge had been included in the original application, this will be deemed to have been withdrawn.

The Act provides that an applicant can withdraw an application, a review or appeal by informing the Chief Deciding Officer in writing that he or she wishes to withdraw. The withdrawal will take effect on and from the date on which the Chief Deciding Officer receives the notice of withdrawal from the applicant.

Amendment of Taxes

The Act provides that general payments and work-related payments made under the Scheme are exempt from income tax, capital gains tax and capital acquisitions tax. Future income or gains arising from the payments, such as investment income, or gains from the sale of assets purchased with the payment, are also exempt.

The Act provides that payments made under the Scheme that are exempt from income tax are also exempt from capital acquisitions tax.

Legal costs and expenses

The Act provides for the provision of financial support to applicants to seek the assistance of a legal practitioner for the purpose of providing an affidavit as part of their application to the Scheme, where relevant, and for the purpose of seeking independent legal advice when considering their decision to accept or reject an offer made under Part 3 of the Act. This is specifically relevant to the requirement for applicants to sign a legal waiver on acceptance of an offer of a general payment and, where relevant, work- related payment.

Regulations

The Act provides that the Minister may make regulations for prescribing any matter referred to in the Act as prescribed or to be prescribed. The Act includes a list of matters for which the Minister may make regulations in relation to the operation of the Scheme including:

the procedures for examining applications;
the procedures for the conduct of reviews and appeals;
the amount of financial support that may be provided for legal advice and assistance under the Act .

The Act provides for the amendment of the Act 53C of the Health Act of 1970. This amendment will ensure that those who have qualified for the provision of health services without charge under the Scheme will not be required to pay for acute in-patient services, should they require them.

Amendment of Nursing Homes Support Scheme Act 2009

The Act provides for the amendment of Part 3 of Schedule 1 to the Nursing Homes Support Scheme Act 2009. This amendment will ensure that the general payment and work-related payment received under this Act are disregarded for the purpose of a means assessment in relation to the Nursing Homes Support Scheme (Fair Deal Scheme).

Prohibition on disclosure of information

The Act provides for a prohibition on the disclosure, except in limited circumstances, of confidential information obtained by a person involved in the operation of the Scheme. A person who contravenes the Act is guilty of an offence.

Review of operation of Scheme

The Act provides for a review of the operation of the Scheme to be commenced as soon as possible after the second anniversary of the establishment day, and as soon as possible after the cessation date. The Act sets out a list of matters which will be considered in the reviews and allows the inclusion of any other matter as may be specified by the Minister.

Additional institution

The Act provides for the Minister to insert, by regulation, any additional institution in Schedule 1 which was established for the purpose of providing maternity and infant care services and the placement of children for the purposes of adoption or care arrangements and in respect of which a public body had a regulatory or inspection function. Such an insertion would require the consent of the Minister for Public Expenditure and Reform. The Act also includes definitions relevant to the Act.

Various

The Act provides for the manner in which a notice, certificate or other document which is authorised or required by or under this Act is to be given to or served on a person.Minister may prescribe person to be information source

The Act provides for the Minister to, where he considers a person may have relevant information or documents, prescribe the person to be an information source.

Processing of personal data and special categories of personal data

The Act provides for personal data to be processed to the extent necessary and proportionate for the purposes of allowing the Chief Deciding Officer, an appeals officer or an information source to perform their functions under this Act. This includes special categories of personal data.

The Act also provides for the Minister to prescribe suitable and specific measures for the processing of personal data and special categories of personal data under this Act.

Use of database and records of Commission of Investigation into Mother and Baby Homes

The Act provides for the Chief Deciding Officer to access and process personal data contained in the copy of the database and copy of the related records of the Commission of Investigation (Mother and Baby Homes and Certain Related Matters) that were deposited with the Minister under the Act 4(1) of the Commission of Investigation (Mother and Baby Homes and Certain Related Matters) Records, and Another Matter, Act 2020.

It also provides for the Chief Deciding Officer to share this data with an appeals officer to the extent necessary and proportionate for the performance by the appeals officer of his or her functions under this Act.

The Act also provides for the Child and Family Agency (Tusla) to be able to access and process personal data and special categories of personal data in the database and related records, for the purposes of performing its functions as an information source.

Penalties

The Act provides for an applicant who knowingly gives false information to the Chief Deciding Officer or to an appeals officer in connection with their application, to be guilty of an offence. The Act also sets out the penalties which may apply.

Schedules

Schedule 1

This Schedule lists all of the eligible institutions for the Mother and Baby Institutions Payment Scheme.

Schedule 2

This Schedule sets out the period of days and the corresponding amounts of the general payment, for a person to whom part (a) of the definition of a “relevant person” applies.

Schedule 3

This Schedule sets out the period of days and the corresponding amounts of the general payment and work-related payment, for a person to whom part (b) of the definition of a “relevant person” applies.