Mother and Baby Institutions Payment Scheme Act 2023

PART 1 Preliminary and General

1. Short title and commencement

1. (1) This Act may be cited as the Mother and Baby Institutions Payment Scheme Act 2023.

(2) This Act, other than sections 41 and 42, shall come into operation on such day or days as the Minister may appoint by order or orders generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(3) Sections 41 and 42 shall come into operation on such day or days as the Minister for Finance may appoint by order or orders 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. (1) In this Act—

“Act of 1970” means the Health Act 1970;

“Act of 2014” means the Companies Act 2014;

“Act of 2018” means the Data Protection Act 2018;

“adult” means a person who has attained the age of 18 years;

“applicant” means—

(a) subject to paragraph (b), a person who makes an application in accordance with section 19, or

(b) in the case of an application to which section 36 or 37(2) applies, or proceeded with under section 38, the person on whose behalf or for the benefit of whose estate the application is made;

“Chief Deciding Officer” means the person appointed under section 8(1) to be the Chief Deciding Officer;

“child” means a person who has not attained the age of 18 years;

“concluding year” means—

(a) in respect of a relevant institution specified in column 2 of Part 1 of Schedule 1 at any reference number, the year specified in column 4 of that Part at that reference number, and

(b) in respect of a relevant institution specified in column 2 of Part 2 of Schedule 1 at any reference number, the year specified in column 3 of that Part at that reference number,

and includes a concluding year inserted by regulations under subsection (1), or amended by regulations under subsection (3), of section 49;

“Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016^1 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation);

“dissolution day” means the day appointed under section 13;

“enactment” has the same meaning as it has in the Interpretation Act 2005;

“establishment day” means the day appointed under section 5;

“general payment” means a payment to which a relevant person is entitled under subsection (1) or (2) of section 18;

“health support payment” means a payment to which a relevant person is entitled under section 18(5);

“information source” means—

(a) a local authority,

(b) the Health Service Executive,

(c) the Child and Family Agency,

(d) the Adoption Authority of Ireland,

(e) the National Archives, or

(f) a person prescribed under section 51;

“local authority” means a local authority within the meaning of section 2 of the Local Government Act 2001;

“Minister” means the Minister for Children, Equality, Disability, Integration and Youth;

“Office of the Chief Deciding Officer” has the meaning assigned to it by section 7;

“personal data” has the same meaning as it has in the Data Protection Regulation;

“personal representative” has the meaning assigned to it by the Succession Act 1965;

“prescribed” means prescribed by regulations made by the Minister;

“processing” has the same meaning as it has in the Data Protection Regulation;

“public body” means—

(a) a Minister of the Government,

(b) a local authority, or

(c) a body (other than a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act) established by or under any enactment;

“registered medical practitioner” has the same meaning as it has in the Medical Practitioners Act 2007;

“registered nurse” has the same meaning as it has in the Nurses and Midwives Act 2011;

“relevant institution”, subject to section 49, means an institution specified in column 2 of Part 1, orcolumn 2 of Part 2, of Schedule 1;

“relevant person” means a person who is either or both of the following:

(a) a person who, while the person was a child, was resident in a relevant institution other than in circumstances referred to in paragraph (b);

(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—

(i) for reasons relating to the person’s pregnancy, or the birth or care of the child born as a result of the pregnancy, and

(ii) where the primary purpose of the person’s admission to the relevant institution was the provision to the person of shelter and maintenance;

“Scheme” means the Mother and Baby Institutions Payment Scheme established under section 5;

“special categories of personal data” has the same meaning as it has in the Act of 2018;

“work-related payment” means a payment to which a relevant person is entitled under section 18(3).

(2) For the purposes of this Act, and without prejudice to section 24(2), a person shall be considered to have been resident in a relevant institution where he or she—

(a) was born in, or admitted as a resident to, and

(b) spent not less than one night in,

the institution.

(3) A reference in paragraph (b) of the definition of “relevant person” in subsection (1) to the provision of shelter and maintenance to a person does not include a reference to the provision of such shelter and maintenance as an incidental part of the provision to the person of medical, surgical or maternity services.

3. Expenses

3. The expenses incurred by the Minister or the Minister for Health in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure, National Development Plan Delivery and Reform, be paid out of moneys sanctioned by the Oireachtas.

4. Laying of regulations

4. (1) Regulations made under this Act may contain such incidental, supplementary and consequential provisions as appear to the person making the regulations to be necessary or expedient for the purposes of the regulations.

(2) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which the House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.

PART 2 Mother and Baby Institutions Payment Scheme

5. Establishment of Scheme

5. (1) There shall stand established on the establishment day a scheme to be known as the Mother and Baby Institutions Payment Scheme, to be operated in accordance with this Act and any regulations made under it.

(2) The Scheme is established for the purpose of the making of general payments, work‑related payments and health support payments, and the making available without charge of certain health services, in accordance with this Act, to relevant persons.

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

6. Duration of Scheme

6. (1) Subject to subsection (2), the Scheme shall cease to operate on the following date (in this Act referred to as the “cessation date”):

(a) the date that is the fifth anniversary of the establishment day, or

(b) such date that the Minister may by order specify that is—

(i) earlier than the date referred to in paragraph (a), and

(ii) not earlier than one year after the date on which the order specifying it is made.

(2) Notwithstanding subsection (1), this Act shall continue to apply in respect of an application made in accordance with section 19 that is received by the Chief Deciding Officer before the cessation date.

7. Office of Chief Deciding Officer

7. On the date on which this section comes into operation, there shall stand established, within the Department of Children, Equality, Disability, Integration and Youth, an office to be known as the Office of the Chief Deciding Officer of the Mother and Baby Institutions Payment Scheme (in this Act referred to as the Office of the Chief Deciding Officer).

8. Chief Deciding Officer

8. (1) The Minister shall, subject to this section, appoint, from among his or her officers, a person to be the Chief Deciding Officer to perform the functions conferred on the Chief Deciding Officer by or under this Act.

(2) The Chief Deciding Officer shall hold office on such terms and conditions as may be determined by the Minister, with the approval of the Minister for Public Expenditure, National Development Plan Delivery and Reform, at the time of the appointment.

(3) The Minister may at any time remove the Chief Deciding Officer from office if, in the Minister’s opinion, the Chief Deciding Officer—

(a) has become incapable through ill-health of performing his or her functions, or

(b) has committed stated misbehaviour.

(4) A person shall not be eligible for appointment as Chief Deciding Officer and shall cease to hold office as Chief Deciding Officer if he or she—

(a) is sentenced by a court of competent jurisdiction to a term of imprisonment,

(b) is convicted on indictment of an offence,

(c) is convicted of an offence involving fraud or dishonesty,

(d) has a declaration made against him or her under section 819 of the Act of 2014 or is deemed to be subject to such a declaration by virtue of Chapter 5 of Part 14 of that Act, or

(e) is subject to, or is deemed to be subject to, a disqualification order within the meaning of Chapter 4 of Part 14 of the Act of 2014 whether by virtue of that Chapter or of any other provision of that Act.

(5) The Minister may appoint such and so many of his or her officers as he or she may determine to be members of staff of the Office of the Chief Deciding Officer to assist the Chief Deciding Officer in the performance of his or her functions.

9. Functions of Chief Deciding Officer

9. (1) The functions of the Chief Deciding Officer shall include the following:

(a) examining, in accordance with this Act and any regulations made under it, applications under section 19;

(b) determining, in accordance with section 25, the entitlement of applicants to payments, and their eligibility for the provision without charge of health services to them, under section 18;

(c) carrying out reviews under section 27;

(d) assigning, under section 29(3), appeals to appeals officers;

(e) notifying, in accordance with section 34, the Health Service Executive of an applicant’s eligibility for the provision without charge of the health services specified in that section to him or her;

(f) making all reasonable efforts, including by the holding of a public information campaign, as he or she considers appropriate to promote awareness among the public and, in particular, relevant persons (including relevant persons residing outside the State), of the Scheme, the process under Part 3 for the making and examination of applications and of the effect of section 6;

(g) performing any additional functions conferred on him or her by regulations under subsection (2).

(2) The Minister may by regulation confer upon the Chief Deciding Officer such additional functions relating to the administration of the Scheme as the Minister considers appropriate.

(3) The Chief Deciding Officer shall be independent in the performance of the functions conferred upon him or her by or under this Act.

(4) The functions of the Chief Deciding Officer may be performed, subject to the general superintendence and control of the Chief Deciding Officer, by a member of the staff of the Office of the Chief Deciding Officer.

10. Deputy Chief Deciding Officer

10. (1) The Chief Deciding Officer shall designate a member of the staff of the Office of the Chief Deciding Officer to be the Deputy Chief Deciding Officer.

(2) The Deputy Chief Deciding Officer shall 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.

(3) Subsections (2) to (4) of section 8 shall apply to the Deputy Chief Deciding Officer as they apply to the Chief Deciding Officer.

11. Agreements relating to performance of certain functions of Chief Deciding Officer

11. (1) Subject to subsection (6), the Minister may by an agreement entered into with any person, upon such terms and conditions as may be specified in the agreement, provide for the performance by such person, subject to such terms and conditions (if any) as may be so specified, of such functions conferred on the Chief Deciding Officer by or under this Act as may be so specified.

(2) An agreement under this section may include provision for payments (if any) to be made to and the disposal of such payments by the person concerned for the purpose of the performance of a function specified in the agreement.

(3) Where an agreement under this section provides for the performance by a person of a specified function of the Chief Deciding Officer, the function concerned shall be deemed, so long as the agreement continues in force, to be conferred by this Act on the person concerned, to the extent, and subject to the terms and conditions, specified in the agreement.

(4) A function deemed under subsection (3) to be conferred on a person shall—

(a) be performable by the person in his or her own name but subject to the general superintendence and control of the Chief Deciding Officer, and

(b) continue to be conferred on the Chief Deciding Officer but shall be so conferred concurrently with the person so as to be capable of being performed by either of those persons.

(5) The application of subsection (3) to a function of the Chief Deciding Officer shall not remove or derogate from the Chief Deciding Officer’s responsibility to the Minister for the performance of the function.

(6) An agreement under this section shall not provide for the performance by the person concerned of the functions conferred upon the Chief Deciding Officer by sections 12, 29(3) and 53.

12. Annual report

12. (1) The Chief Deciding Officer shall, not later than 30 June in each year, prepare and furnish to the Minister a report (in this section referred to as an “annual report”) in writing on the performance of the functions of the Chief Deciding Officer in the preceding calendar year.

(2) If, under subsection (1), the first annual report would relate to a period of less than 6 months, that report shall, notwithstanding that subsection, instead relate to the performance of the functions of the Chief Deciding Officer during that period and the year immediately following that period and the Chief Deciding Officer shall prepare, and submit to the Minister, that first annual report as soon as may be, but not later than 6 months, after the end of that year.

(3) An annual report shall, if the Minister so directs, include information in such form and regarding such matters as he or she may specify.

(4) Without prejudice to the generality of subsection (3), the matters referred to in that subsection include the following:

(a) applications and determinations made under Part 3;

(b) the staff and other resources available to assist the Chief Deciding Officer in the performance of his or her functions in the period concerned;

(c) the training and other support provided to the Chief Deciding Officer and staff referred to in paragraph (b).

(5) The Minister shall cause copies of an annual report to be laid before each House of the Oireachtas.

(6) An annual report shall not identify by name any applicant or other person referred to in an application.

13. Dissolution day

13. The Minister shall by order appoint a day, being a day that is not earlier than the cessation date, to be the dissolution day for the purposes of this Act.

14. Transfer of functions to relevant Minister

14. On the dissolution day, all functions that immediately before that day were vested in the Chief Deciding Officer shall stand transferred to the Minister.

15. Liability for loss occurring before dissolution day

15. (1) A claim in respect of any loss or injury alleged to have been suffered by any person arising out of the performance, before the dissolution day, of a function of the Chief Deciding Officer transferred by section 14 shall, on and after that day, lie against the Minister and not against the Chief Deciding Officer.

(2) Any legal proceedings pending immediately before the dissolution day to which the Chief Deciding Officer is a party, that relate to a function of the Chief Deciding Officer transferred by section 14, shall, on and after that day, be continued with the substitution in the proceedings of the Minister for the Chief Deciding Officer.

(3) Where, before the dissolution day, agreement has been reached between the parties concerned in settlement of a claim to which subsection (1) relates, the terms of which have not been implemented, or judgment in such a claim has been given in favour of a person but has not been enforced, the terms of the agreement or judgment, as the case may be, shall, on and after the dissolution day, in so far as they are enforceable against the Chief Deciding Officer, be enforceable against the Minister and not the Chief Deciding Officer.

(4) Any claim made or proper to be made by the Chief Deciding Officer in respect of any loss or injury arising from the act or default of any person before the dissolution day shall, on and after that day, where the claim relates to a function of the Chief Deciding Officer transferred by section 14, be regarded as having been made by or proper to be made by the Minister and may be pursued and sued for by the Minister as if the loss or injury had been suffered by the Minister.

16. Provisions consequent upon transfer of functions