Residential Institutions Statutory Fund Act 2012

PART 1 Preliminary and General

1. Short title and commencement.

1.— (1) This Act may be cited as the Residential Institutions Statutory Fund Act 2012.

(2) This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

2. Interpretation.

2.— In this Act, unless the context otherwise requires—

“abuse” has the meaning given to it by the Act of 2002;

“Act of 2002” means the Residential Institutions Redress Act 2002;

“Act of 2005” means the Commission to Inquire into Child Abuse (Amendment) Act 2005;

“Agency” means the National Treasury Management Agency;

“appeals officer” shall be construed in accordance with section 21 (1);

“approved service” shall be construed in accordance with section 8;

“Board” shall be construed in accordance with section 6;

“chief executive” shall be construed in accordance with section 13;

“decision maker” shall be construed in accordance with section 20 (7);

“dissolved body” shall be construed in accordance with section 32;

“enactment” has the meaning given to it by section 2 of the Interpretation Act 2005;

“establishment day” shall be construed in accordance with section 6;

“former resident” shall be construed in accordance with section 3;

“investment account” means the account established under section 29 (3);

“liaison officer” shall be construed in accordance with section 25 (2);

“Minister” means the Minister for Education and Skills;

“public authority” means:

(a) a Department of State (other than, in relation to the Department of Defence, the Defence Forces) for which a Minister of the Government is responsible;

(b) the Health Service Executive;

(c) a local authority, within the meaning of the Local Government Act 2001;

(d) a person established—

(i) by any enactment (other than the Companies Acts),

(ii) by any scheme administered by a Minister of the Government, or

(iii) under the Companies Acts, in pursuance of powers conferred by another enactment, and financed wholly or partly, whether directly or indirectly, by means of moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government;

(e) a company (within the meaning of the Companies Acts) a majority of the shares in which are held by or on behalf of a Minister of the Government;

(f) other than for the purposes of section 7(1)(c), 20(4)(a)(ii) or 25, a person situated outside the State corresponding to a person referred to in paragraphs (a) to (e);

“publicly available service” means any service or facility of any kind provided by a public authority that is available to or accessible by the public generally or a section of the public, whether or not the service or facility is subject to a charge;

“relevant trust” means a trust, which may include a company, a body corporate other than a company or an unincorporated body of persons, established for charitable purposes and—

(a) which is or was engaged in the management, administration, operation, supervision or regulation of an institution specified in the Schedule to the Act of 2002, or

(b) which is a person listed in the First Schedule to the Deed made on 5 June 2002 between the Minister for Finance and the Minister for Education and Science of the one part and the persons listed in the First Schedule to that deed of the other part;

“terms” in relation to a relevant trust means terms whether or not in writing;

“trustee” in relation to a relevant trust means the relevant trust or a trustee of the relevant trust on its behalf.

3. Application.

3.— (1) This Act shall apply to the following person (in this Act referred to as a “former resident”) whether or not he or she is resident in the State:

(a) a person who has received an award (other than an award referred to in subsection (2)) under the Act of 2002;

(b) a person who has received an award or settlement referred to in section 7(2) of the Act of 2002.

(2) The following shall not be an award for the purposes of subsection (1)(a):

(a) an award made under section 9 of the Act of 2002, or

(b) an award of a nil amount made under the Act of 2002.

(3) A reference in this Act to a former resident, as appropriate, shall include a reference—

(a) to a person who has been nominated in writing by the former resident for the purposes of making an application under this Act,

(b) where the donor of a power of attorney is a former resident, to a person who is the donee of a power of attorney given the power to act on behalf of the donor of the power,

(c) where the former resident is a ward of court, to the Committee of the Person of that ward, duly authorised in that behalf, or

(d) to a person appointed by a former resident to be his or her attorney under an enduring power of attorney where—

(i) the attorney is not prohibited or restricted by the terms of the power from performing any matter performable under this Act by an attorney, and

(ii) the enduring power of attorney has been registered and the registration has not been cancelled.

(4) In subsection (3)—

“enduring power of Attorney” means a power of attorney within the meaning of section 2 of the Powers of Attorney Act 1996, which is an enduring power construed in accordance with section 5 of that Act;

“registration” in relation to an enduring power of attorney means registration under section 10 of the Powers of Attorney Act 1996.

4. Orders and regulations.

4.— (1) The Minister may by regulations provide for any matter referred to in this Act as prescribed or to be prescribed.

(2) Without prejudice to any provision of this Act, regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary or expedient for the purposes of the regulations.

(3) Where regulations are proposed to be made for the purposes of section 8(3), a draft of those regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each such House.

(4) Where an order (other than an order under section 1(2) or 6(1)) is proposed to be made under this Act a draft of that order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving the draft has been passed by each such House.

5. Expenses.

5.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas.

PART 2 Residential Institutions Statutory Fund Board

6. Establishment of Residential Institutions Statutory Fund Board.

6.— (1) The Minister shall, by order, appoint a day to be the establishment day for the purposes of this Act.

(2) There shall stand established on the establishment day, a body to be known as Bord an Chiste Reachtúil Foras Cónaithe or, in the English language, the Residential Institutions Statutory Fund Board (in this Act referred to as the “Board”), to perform the functions conferred on it by this Act.

(3) Subject to this Act, the Board shall be independent in the performance of its functions.

7. Functions of Board.

7.— (1) The Board, in a manner that promotes the principles of equity, consistency and transparency, shall—

(a) utilise the resources that are available to it in the investment account to—

(i) make arrangements with persons, whether or not they are resident in the State, for the provision of approved services to support the needs of former residents,

(ii) pay grants to former residents in order that they may avail of approved services,

(b) determine under—

(i) section 8 whether a service is an approved service,

(ii) section 9 criteria by reference to which the Board shall make a decision on an application to the Board for an arrangement or a grant,

and

(c) promote understanding, among persons involved in the provision of approved services and publicly available services to former residents, of the effects of abuse on former residents.

(2) For the purpose of performing the functions referred to at subsection (1), the Board shall—

(a) make information relating to the functions of the Board available to former residents,

(b) evaluate the effectiveness of approved services in meeting the needs of former residents, and

(c) take such steps as the Board considers appropriate to consult with persons the Board considers may be affected by the performance by the Board of its functions.

(3) In performing any functions conferred on it by or under this Act, the Board shall have regard to the existence of publicly available services and the need to secure the most beneficial, effective and efficient use of the resources available in the investment account.

(4) The Board shall have all such powers as are necessary or expedient for the performance of its functions.

(5) The Board may perform any of its functions through or by any member of the staff of the Board duly authorised in that behalf by the Board.

(6) The Minister may, with the consent of the Minister for Public Expenditure and Reform, by order—

(a) confer on the Board such additional functions relating to the functions conferred on the Board by this section or by an order under this subsection as the Minister considers appropriate, and

(b) make such provision as he or she considers necessary or expedient in relation to matters ancillary to or arising out of the conferral on the Board of those additional functions.

(7) The Board, from time to time as it considers necessary for the performance of its functions and with the approval of the Minister, may—

(a) enter into contracts with persons, and

(b) engage consultants or advisers,

for such period and subject to such terms and conditions as the Board considers appropriate and any sums thereby payable by the Board to such persons, consultants or advisers shall be paid by the Board out of moneys at its disposal.

8. Approved services.

8.— (1) In this Act “approved service” means a service belonging to one of the following classes of service, in relation to which the Board makes a determination under subsection (2):

(a) a mental health service relating to care and treatment of a person suffering from a mental illness or a mental disorder, a counselling service or a psychological support service;

(b) a health and personal social service, including—

(i) a general practitioner, medical or surgical service provided by a registered medical practitioner (within the meaning of section 2 of the Medical Practitioners Act 2007) in relation to all medical conditions,

(ii) a hospital treatment service,

(iii) a pharmacy service including provision of drugs, medicines, medical or surgical appliances,

(iv) a nursing service provided otherwise than in a hospital,

(v) a service to assist in the maintenance at home of a former resident who is sick or infirm and who, but for the provision of the service, would require to be maintained otherwise than at home,

(vi) a dental, ophthalmic or aural treatment service, including provision of a dental, ophthalmic or aural appliance,

(vii) a service of an ancillary nature such as chiropody, chiropractic, occupational therapy, physiotherapy, podiatry or speech therapy;

(c) an educational service;

(d) a housing support service, including adaptation or improvement of real property but not including financial aid for the purchase, mortgage or charge of real property;

(e) a service prescribed under subsection (3).

(2) The Board may determine whether a service belonging to a class of service referred to in subsection (1) is an approved service and in making such a determination the Board shall have regard to:

(a) the likely effect of the provision of the service on the—

(i) health and general well-being,

(ii) personal and social development,

(iii) educational development, or

(iv) living conditions,

of a former resident;

(b) the need for minimum standards to be met by a provider of an approved service;

(c) any other matter that the Board considers, having regard to the functions of the Board, is a proper matter to be taken into account.

(3) The Minister, on receipt of a recommendation from the Board or following consultation by him or her with the Board, may prescribe a class of service, other than a class of service referred to in paragraph (a), (b), (c) or (d)of subsection (1), to be a class of service in relation to which the Board may make a determination under subsection (2) and—

(a) in so recommending or during such consultation with the Minister the Board shall have regard to the matters referred to in paragraphs (a) to (c) of subsection (2), and

(b) in so prescribing, the Minister shall have regard to—

(i) the matters referred to in paragraphs (a) and (b) of subsection (2)and any matter that the Board considers is a proper matter under paragraph (c) of that subsection, and

(ii) any other matter that the Minister considers is a proper matter to be taken into account.

(4) An approved service may be determined under this section by reference to a particular class of approved service, and different approved services or classes of approved service may be determined by reference to different former residents or classes of former resident.

(5) The Board may amend or revoke a determination under this section, including an amendment thereto under this subsection, that a service is an approved service and that amendment or revocation may provide for incidental, consequential or transitional matters.

(6) Information relating to approved services shall be made available in writing free of charge by the Board to any person on request therefor and shall be published by the Board in such manner, including by electronic means, as it sees fit.

(7) For the purposes of this Act, a service that—

(a) is available outside of the State, and

(b) corresponds to a service in relation to which a determination under subsection (2) is made,

shall be taken to be an approved service.

9. Determination of criteria by Board.

9.— (1) The Board shall determine criteria by reference to which the Board shall make a decision in respect of an application under section 20.

(2) The Board in determining criteria under subsection (1) shall have regard to the need to—

(a) take account of the individual circumstances, including personal and financial circumstances, of former residents,

(b) assess the likely effect of the provision of a service on the—

(i) health and general well-being,

(ii) personal and social development,

(iii) educational development, or

(iv) living conditions,

of former residents,

(c) apply limits to the moneys that may be made available for an arrangement or grant,

(d) specify minimum standards to be met by a provider of an approved service,

(e) specify any supporting evidence that may be required to be furnished by former residents, and

(f) take into account any other matter that the Board considers, having regard to the functions of the Board, is a proper matter to be taken into account.

(3) Different criteria may be determined under this section as respects—

(a) different circumstances or classes of circumstance relating to former residents,

(b) different approved services or classes of approved service, and

(c) different former residents or classes of former resident.

(4) Criteria determined under this section may include criteria, consistent with this Act, for the purpose of the relief of hardship where it is shown to the satisfaction of the Board on an application under section 20 that exceptional circumstances exist, such that criteria (other than criteria determined under this subsection) determined under this section may be disregarded by the Board in making its decision on the application.

(5) The Board may amend or revoke any criteria determined under this section including an amendment thereto under this subsection and that amendment or revocation may provide for incidental, consequential or transitional matters.

(6) Criteria determined by the Board under this section shall be made available in writing free of charge by the Board to any person on request therefor and shall be published by the Board in such manner, including by electronic means, as it sees fit.

10. Directions of Minister.

10.— (1) The Minister may, in relation to the performance by the Board of its functions, give a direction in writing to the Board requiring it to comply with such policies of the Government as are specified in the direction.

(2) The Minister may, by direction in writing amend or revoke a direction under this section, including a direction under this subsection.

(3) The Board shall comply with a direction under this section.

11. Membership of Board and related matters.

11.— (1) The Board shall consist of 9 members who shall be appointed by the Minister—

(a) of whom 4 are persons who were resident in an institution specified in the Schedule to the Act of 2002 before they attained the age of 18 years, and

(b) among whom there are persons other than those referred to at paragraph (a), who have knowledge of, and expertise in relation to one or more than one of the following:

(i) the keeping of financial accounts and disbursement of funds;

(ii) the management and administration of an organisation;

(iii) the provision of an approved service or approved services.

(2) The Minister shall appoint one member of the Board as chairperson.

(3) The Minister shall, in so far as is practicable, ensure an equitable balance between men and women in the composition of the Board.