ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00008907
Parties:
| Complainant | Respondent |
Anonymised Parties | A Psychiatric Nurse | A Health Care Service Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00011696-001 | 01/06/2017 |
Date of Adjudication Hearing: 11/07/2018
Workplace Relations Commission Adjudication Officer: Emile Daly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
This complaint concerns the applicability of a Location Allowance established in the Department of Health and Children Circular 112/99.
The Complainant works as a psychiatric nurse in a respite centre in the north midlands. She claims that the conditions of the location allowance apply to her and to her colleagues who work in the same respite centre firstly because of the terms of the circular secondly because of a letter dated March 2007 from the then service manager of the Respondent in the relevant region which classified the centre as being one which was reckonable for the location allowance. Despite numerous requests and efforts to regularise their situation the allowance has not been paid and the Respondent deny that it is payable. |
Summary of Complainant’s Case:
1. Department of Health and Children Circular 112/99 states, inter alia, that a location allowance is payable to Nurses when employed in the following locations: - Units for severe and profoundly handicapped in mental handicap services - Acute Admission in Mental Health Services - Secure Units in Mental Health Services 2. Under the guidelines which accompany the Circular the condition of the payment is that the allowance only applies to nurses in institutions where 75% or more of the residents fall into the category of severe and profound handicap. 3. The terminology for this has since been updated to severe or profound Intellectual Disability. 4. The Complainant submits that the original interpretation of the circular was wider than a clinical diagnosis of intellectual disability which took into account not just the clinical diagnosis but also the patient’s need or dependency; ie handicap also includes the extent to which they are dependent by virtue of their disability. The Complainant says that the original wording is what should be interpreted rather than the more recent wording. 5. Respondent has refused to accept that the respite centre where the Complainant works comes within the definition of the Circular and the guidelines 6. The Complainant submits that this refusal is unfair for a number of reasons: (a) The respite centre has service users who do have and who do not have intellectual disabilities. In this way it is a mixed facility for adults and children. However, if the use of the service is assessed on a per night basis, i.e. the number of patients who use the service per night as opposed to the number of service users who use the facility, then the 75 % threshold is met. It is further submitted that this is the only fair way to interpret the guidelines when it says where “75% or more of the residents fall into the category of severe or profound handicap.” It reflects the work that is done by the staff. Any other interpretation which does not take account of use per night in a respite service does not take account of the work involved because the number of persons with an intellectual disability who use the service may be small but if they use the respite centre on a regular basis, then the work involved for the staff is frequent and onerous. (b) This dispute as to whether the allowance applies to psychiatric nurses in the relevant region is a long running battle. Since 1999 the efforts to allocate the allowance to these nurses has been declined by the Respondent. (c) At a number of union management meetings, motions were passed in support of the claim of the psychiatric nurses to get the allowance (d) On 22 March 2007 the Service Manager for the Intellectual Disability Service wrote to the Psychiatric Nurses Association and stated that a decision had been made to pay the location allowance to the nursing staff in the specific respite centre. Payment was to be contingent on the funding being available. Therefore, in principle the claim was accepted at this point. (e) However, despite many efforts made between 2007 and to date (although it accepts that the recession and the Lansdowne Road moratorium arose in the meantime) the Respondent has failed to give effect to its commitment in March 2007 (f) Furthermore, the arguments now being raised to defend the complaint is firstly a continuation of the moratorium argument but also secondly an argument that in principle the allowance does not apply because of an interpretation of the circular. In other words it is now going against the assurance given in March 2007 that the allowance would be applied if funding was available. (g) Now they are arguing a strict and inaccurate interpretation of the circular and that the profile of the service users of the respite centre do not meet the 75% threshold of severe to profound persons with Intellectual Disability. (h) Furthermore, the Respondent is relying on out of date information in relation to the current clinical status of the service users of the centre as to whether or not they have severe or profound ID. The diagnosis of a service user is not reconsidered on a regular basis so therefore the level of Intellectual Disability might have become more severe over time but the information captured on the national data base would not reflect that. Whereas the nurses in the respite centre who are treating and caring for the service users have a more accurate picture as to the clinical status of a service user and this is what should determine whether each service user has a severe or profound ID (i) Also if mental handicap rather than intellectual disability is considered as an aid to interpret the circular (and it is the 1999 circular that requires to be interpreted) then a broad interpretation, which takes into account a level of dependency and not just a clinical diagnosis, should be used. The reason that this is so is back to the central point which is that the allowance is there in the first place to bolster the terms and conditions of those people caring for those with an intellectual disability on a regular if not constant basis. The 75 % threshold is there to ensure that the staff who receive the benefit are those who care for these patients on a regular or constant basis. Any other interpretation of the circular (based on number of patients not on a per night or per day basis) is artificial. (j) The Complainant’s figures using DSM formula is that the percentage of beds allocated to service users with severe or profound intellectual disability to be 80.5% in 2016 and 77.67% in 2017 (k) Other respite centres receive the location allowance and there is no distinction between those respite centres and the present one. For example in Meath/ Louth respite centre the psychiatric nurses who work there receive the location allowance. |
Summary of Respondent’s Case:
1. It is accepted that a letter dated 22 March 2007 stated that the location allowance would be paid in respect of the psychiatric nurses based in the respite centre, however this is subject to funding and since then the economic picture has radically changed in terms of an economic recession and a moratorium on pay increases. 2. This case must be interpreted on the basis of the applicability of the circular. 3. It is denied that an alternative interpretation of Circular 122/99 is altered if the words mental handicap is replaced by intellectual disability. The use of intellectual disability is more accurate and is based on the diagnosis by a qualified psychiatrist or psychologist. 4. The level of dependency may change over time in a person with intellectual disability however this may or may not change the clinical diagnosis of the service user, which is something that is assessed by a qualified person when there is a need to do so. When this occurs the clinical status of the individual involved is recorded and the national data base (i.e. whether they have a medium/severe or profound disability) will be amended. But this status cannot be assessed by the staff on the ground in any centre, who clearly would have an incentive to categorise a patient on a particular basis if it meant that an allowance would follow such a re-categorisation. The clinical status of a patient can only be assessed objectively by a qualified psychiatrist or psychologist and the reliance the DSM formula by the Complainant is both inappropriate and inaccurate. 5. No other respite centre other than Meath/Louth are psychiatric nurses in receipt of the location allowance. If the location allowance is permitted here, this will have a knock-on effect to other staff who currently do not receive the allowance 6. Interpreting the Circular 112/99 the respite centre does not have over 75 % use by patients with an intellectual disability even if the per night basis as claimed by the Complainant is followed. 7. The annual breakdown using the per night application for this respite centre means that in 2014 the percentage use by persons with an ID on a per night basis was 42.2%; in 2015 it was 38.5 %, in 2016 it was 47% and in 2017 it was 41 %. So even using the per night basis as advocated by the Complainant, the figures fall well short of the 75% threshold. 8. The reason that there is a difference in the figures is because the Complainant and her colleagues are using inappropriate DSM formula themselves. 9. This respite centre is a mixed centre and as a result most of the work that is done by the staff is not with patients with intellectual disability. Therefore, in a straightforward application of the circular, it does not apply to this Complainant. 10. Paragraph 4.2 of the Lansdowne Road Agreement precludes any cost increasing claims. If this complaint were to be upheld it would be in breach of that agreement. Complainant’s reply to this was: 1. The cost neutrality of Lansdowne Road does not preclude the payment of allowance because it is well accepted that an allowance is not pay 2. The per night percentages produced by the Respondent are not accepted. These must be based on old data continued on the national data base which may classify a patient as having moderate intellectual disability which has not changed for 20 years and yet on the ground where the staff is caring for that person over the 20 year period, of course their health, like everyone, has declined over that period and the work involved in caring for that patient has increased. The national data base does not change regularly because there is no need for it to be amended. The database is a cul-de-sac in terms of clinical status does not change. If clinical assessments were done on a regular basis, it might be, but as there is no need to re assess patients on a regular basis the national data base records are not reliable in respect of what the clinical status of any one patient might be at any particular time. |
Recommendation
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
It is accepted that there was an agreement in March 2007 that Circular 112/99 applied to this respite centre in principle. In that letter there was no argument that the circular did not apply to the Complainant on an interpretation of the circular and the only issue to prevent the allowance being granted was funding. In relation to the criteria that is contained in the guidelines to Circular 112/99, I find that the reliance by the Respondent on the national database – which is not regularly updated – should not be the sole determining factor as to the clinical status of a service user as there is an argument that the information in this database is not kept up to date. However equally I am not convinced that the use of DSM criteria by the Complainant and her colleagues, to be either objective or wholly reliable. I do find it odd that there should be such a divergence in clinical status between the national data base figures and use of the DSM formula, however in the absence of evidence of a clinical psychologist, I am unlikely to find any explanation for this. On the basis that there was an agreement in March 2007 I am of the view that the nurses in the respite centre staff should receive the location allowance. I am influenced by the fact that the allowance is paid to nursing staff in the Meath Louth respite centre. The work of psychiatric nurses in respite centres is onerous and important care work, work that relieves families in so many ways and I believe that the allowance was designed to acknowledge this important and often challenging work. I do not think likely that in recommending that the allowance be paid in this case will have a flood gate effect on other cases. This is because this case is confined to psychiatric nurses in respite centres with a high percentage use of service users with severe profound intellectual disability and because the staff in this specific respite centre were specifically promised the allowance in 2007 so, in this respect, the case turns on its own facts. I find that as it is an allowance rather than constituting “pay or conditions” that it is not in breach of the public-sector agreements in particular para 4.2 of Lansdowne Road Agreement. I recommend that the respite centre be treated as coming within the definition of circular 112/99 and that the Complainant and her nursing staff colleagues be paid the allowance from the date of issue of the WRC complaint form on a prospective annual basis, which is currently €1858.00 per annum.
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Dated: 01/08/18
Workplace Relations Commission Adjudication Officer: Emile Daly