The Health Service Executive has said it will seek formal approval from the Department of Health to protect higher pay arrangements for some senior health managers in Section 38 agencies, which are above public pay policy.

HSE Deputy Director General Laverne McGuinness said that 67 business cases have been made to "red circle" pay arrangements.

Fourteen other cases are still being examined, she said, where agencies claim staff have a contractual entitlement to their pay.

These pay levels are above Government pay policy.

Ms McGuinness told the Joint Committee on Health and Children that HSE support for any cases will be on the strict understanding that once the current post holder no longer holds the role, the non-compliant pay will cease.

All future appointees would then be paid within Department of Health pay scales.

Ms McGuinness said the HSE hoped to have a full report on the Section 38 agencies in September, at which time it expects all agencies to be in compliance with Government pay policy.

Barry O'Brien, HSE National Director of Human Resources, told the committee that because of the potential risk of incurring significant legal costs, it was prudent to retain the pay for a small group of individuals.

Mr O'Brien said the people involved were public servants, fully funded by the taxpayer, and legal advice had been received that the HSE would likely looe in litigation and could have damages awarded, along with the staff member's contract being upheld.

Sinn Féin's Caoimhghín Ó Caoláin asked the HSE where the "red circling" of top up pay would end.

Mr Ó Caoláin said that around two thirds of the applications by Section 38 agencies to retain pay could be approved.

Committee chairman Jerry Buttimer described the process to end top-up pay as "a cod".

He said that the HSE's Internal Review Panel Report had said that all top-ups should cease but just 47 payments are being ended under the latest figures.

Mr Buttimer said it was making a mockery of the whole process whereby the HSE said its hands were tied due to the risk of losing court actions that could be taken by staff.