Health (Nursing Homes) (Amendment) Act 2007

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Substitution of section 7 of Health (Nursing Homes) Act 1990.

3.— The Health (Nursing Homes) Act 1990 is amended by substituting the following for section 7:

“PART 2

Subventions for Dependent Persons in Nursing Homes

Interpretation of Part 2.

7.— (1) In this Part—

‘ alternative subvention ’ means a higher alternative subvention referred to in section 7C(1)(b);

‘ application ’ means an application under section 7A(1);

‘ applicant ’, in relation to an application, means the dependent person who made the application;

‘ Executive ’ means the Health Service Executive;

‘ nursing home ’ includes a nursing home in Northern Ireland which is registered under that law of, or that law applicable to, Northern Ireland that is equivalent to this Act;

‘ prescribed amount ’, in relation to a provision of this Part, means the amount prescribed in regulations made under section 7H in respect of that provision;

‘ prescribed percentage ’, in relation to section 7B(3)(b)(ii) or (4), means the percentage prescribed in regulations made under section 7H in respect of section 7B(3)(b)(ii) or (4), as the case requires;

‘ prescribed subvention ’ means the amount of a subvention payable under section 7C(1)(a) as prescribed in section 7H(4);

‘ relevant subvention ’ means—

(a) a prescribed subvention, or

(b) an alternative subvention;

‘ subvention ’ means a payment towards the costs of the care and maintenance of a dependent person in a nursing home.

(2) No provision of this Part shall operate to prevent a personal representative (or other representative) of a dependent person who is not of full capacity from acting for or on behalf of the dependent person in relation to any matter to which any provision of this Part relates.

Application for prescribed subvention.

7A.— (1) Subject to subsection (2), a dependent person may make an application to the Executive for a prescribed subvention.

(2) An application shall be—

(a) in writing in a form approved by the Executive,

(b) completed in accordance with such directions and instructions as are specified in the application, and

(c) accompanied by such documents (including statutory declarations) as are specified in the application.

(3) The Executive may refuse to consider or further consider an application if—

(a) the application does not comply with subsection (2), or

(b) the applicant fails to provide the Executive with such information in addition to the information provided by or with the application as the Executive may reasonably require to enable it to determine the application under section 7C(1).

(4) Where the Executive refuses under subsection (3) to consider or further consider an application, it shall, as soon as is practicable after the refusal, give the applicant notice in writing of the decision and the reasons for the decision.

(5) Any person who knowingly gives the Executive information which is false or misleading in a material respect in, with, or in connection with, an application is guilty of an offence and liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 3 months or both.

Assessment of need for applicant to be maintained in nursing home and of means of applicant.

7B.— (1) Without prejudice to the generality of section 7A(3) but subject to subsections (2) and (3), upon the receipt of an application the Executive shall make arrangements for—

(a) the need for the applicant to be maintained in a nursing home to be assessed by a person (who may be an employee of the Executive) who, in the opinion of the Executive, is suitably qualified to make that assessment, and a report thereon to be provided to the Executive, and

(b) the means of the applicant to be assessed by an employee of the Executive, or any person nominated in writing by the Executive, and a report thereon to be provided to the Executive.

(2) The assessment of an applicant’s need to be maintained in a nursing home shall be made on the basis of—

(a) the applicant’s ability to carry out the activities of daily living, including the applicant’s—

(i) degree of mobility,

(ii) ability to dress unaided,

(iii) ability to feed unaided,

(iv) ability to communicate,

(v) extent of orientation,

(vi) cognitive ability,

(vii) ability to bathe unaided, and

(viii) degree of continence,

(b) the family and community support available to the applicant,

(c) the medical services the applicant is receiving, and

(d) any other matter which affects the applicant’s ability to care for himself or herself.

(3) Subject to subsection (4), the financial assessment of an applicant’s means shall be made on the basis of—

(a) subject to paragraph (b), all the applicant’s assets and sources of income including the applicant’s—

(i) wages, salary, pension, allowances, payments for part time and seasonal work, income from rentals, investments and savings and all contributions from whomsoever arising,

(ii) property (excluding household chattels but, if paragraph (b)(ii) is applicable, including an imputed annual income equivalent to so much of the estimated market value of the principal residence of the applicant as is not excluded by the operation of that paragraph),

(iii) stocks, shares and securities,

(iv) moneys on hand, in trust or lodged, deposited or invested,

(v) interest in any company or business (including any farm),

(vi) interests in property,

(vii) life assurance and endowment policies,

(viii) valuables held as investments,

(ix) any benefit or privilege, and

(x) assets (including moneys) which have been transferred (by whatever means) by the applicant to another person—

(I) for no consideration,

(II) for nominal consideration, or

(III) for consideration which is significantly less than the estimated market value of the asset concerned at the time the asset was so transferred,

at any time within the 5 years immediately preceding the date on which the application is made,

(b) excluding—

(i) subject to subparagraph (vi), the principal residence of the applicant if at the time of the application and thereafter it is continuously occupied by—

(I) the applicant’s spouse,

(II) a child of the applicant of less than 21 years of age,

(III) a child of the applicant in full-time education,

(IV) a relative of the applicant in receipt of—

(A) disability or similar allowance,

(B) blind person’s pension,

(C) illness benefit,

(D) invalidity pension,

(E) state pension (contributory) in any case where, before 28 September 2006, the relative would have been entitled to invalidity pension,

(F) state pension (non-contributory),

(G) any successor to an allowance, pension or benefit referred to in this subclause in any case where that allowance, pension or benefit, as the case may be, ceases to be provided, or

(H) any European Union equivalent to an allowance, pension or benefit, or any successor thereto, referred to in this subclause,

or

(V) a relative of the applicant in receipt of—

(A) state pension (con-tributory),

(B) any successor to a pension referred to in this subclause in any case where that pension ceases to be provided, or

(C) any European Union equivalent to a pension, or any successor thereto, referred to in this subclause,

which is the relative’s sole income,

(ii) subject to subparagraphs (v) and (vi), if subparagraph (i) is not applicable, 95 per cent, or the prescribed percentage, whichever is the greater, of the estimated market value of the principal residence of the applicant as determined not later than 6 months after receipt of the application by the Executive,

(iii) one-fifth of the weekly rate of—

(I) subject to clause (II), state pension (non-contributory),

(II) any successor to that pension in any case where that pension ceases to be provided,

and whether or not the applicant is in receipt of that pension or any successor thereto,

(iv) the first €11,000, or the prescribed amount, whichever is the greater, of the applicant’s assets,

(v) without prejudice to the generality of subparagraph (i), the principal residence of the applicant in any case where not excluding that residence from falling within paragraph (a) could reasonably give rise to the destitution or homelessness of a person having a close connection with the applicant for a period of not less than 12 months immediately before the application was made, and

(vi) without prejudice to the generality of subparagraph (i), the principal residence of the applicant in any case where the applicant has been paid in accordance with this Act a relevant subvention for not less than 3 consecutive years at any time following the commencement of this subsection.

(4) Where an applicant is a married or cohabiting person, subsection (3) shall be construed to be a financial assessment made on the basis of 50 per cent, or the prescribed percentage, whichever is the lesser, of the combined means of the married couple or cohabiting couple, as the case may be.

(5) Subject to subsection (6), the arrangements referred to in subsection (1) may include—

(a) in relation to the assessment referred to in subsection (2), a physical examination of the applicant concerned by, as appropriate, a registered medical practitioner, a registered nurse, an occupational therapist or a chartered physiotherapist,

(b) in relation to the assessment referred to in subsection (3), requests for information from, and interviews with, the spouse or any child of the applicant concerned.

(6) The arrangements referred to in subsection (1) shall not include, in relation to the assessment referred to in subsection (2), an inspection of the medical records of the applicant concerned except such an inspection carried out by a registered medical practitioner.

(7) In subsection (3)(b)(i)(IV) and (V), ‘relative’, in relation to an applicant, means a spouse, parent, step-parent, child, step-child, grandchild, brother, step-brother, sister, step-sister, uncle, aunt, nephew or niece of—

(a) the applicant, or

(b) the applicant’s spouse.

Determination of application.

7C.— (1) Subject to subsection (4) and section 7K, the Executive shall determine an application, after having had regard to the reports provided to it pursuant to section 7B(1)(a) and (b) in respect of the applicant, by—

(a) if it is satisfied that the applicant qualifies for a prescribed subvention, arranging for the prescribed subvention for which the applicant is qualified to be paid—

(i) subject to subsection (2), to the applicant, and

(ii) for so long as the Executive remains so satisfied,

(b) subject to subsection (6), if it is satisfied that the applicant qualifies for a prescribed subvention but is also further satisfied that the applicant still cannot, without undue hardship, pay all or any of the costs of the applicant’s care and maintenance in a nursing home, arranging for a higher alternative subvention to be paid in lieu of the prescribed subvention—

(i) subject to subsection (2), to the applicant,

(ii) beginning on such date, or the occurrence of such event, as is specified by the Executive, and

(iii) for so long as the Executive remains so further satisfied,

(c) if the applicant does not fall within paragraph (a) or (b), refusing the application.

(2) The Executive may, at its discretion, effect the payment of a relevant subvention to an applicant by paying the subvention to the proprietor of the nursing home in which the applicant is or is to be maintained.

(3) Where the Executive determines an application under subsection (1), it shall, as soon as is practicable after the determination, give notice in writing to the applicant of the decision and the reasons for the decision.

(4) The Executive may, at its discretion, refuse to pay a relevant subvention to an applicant—

(a) if the value of the applicant’s assets, excluding the principal residence, exceeds €36,000 or the prescribed amount, whichever is the greater,

(b) if—

(i) the applicant’s principal residence is valued at—

(I) in the case of a principal residence located in the Dublin area, not less than €500,000 or the prescribed amount, whichever is the greater, and is not occupied as specified in section 7B(3)(b)(i),

(II) in the case of a principal residence located outside the Dublin area, €365,000 or the prescribed amount, whichever is the greater, and is not occupied as specified in section 7B(3)(b)(i),

and

(ii) the applicant’s annual income is not less than €10,400 or the prescribed amount, whichever is the greater,

or

(c) if the applicant does not fall within paragraph (a) or (b) but does have an annual income of not less than €36,000 or the prescribed amount, whichever is the greater.

(5) Where the Executive refuses to pay a relevant subvention to an applicant on a ground specified in subsection (4), it shall, as soon as is practicable after the decision, give notice in writing to the applicant of the decision and the reasons for the decision.

(6) The Executive shall only determine the amounts of alternative subventions after taking into account the resources available to pay the alternative subventions.

Review of dependant persons who are paid relevant subventions.

7D.— (1) The Executive may at any time arrange for—

(a) a review to be done—

(i) of—

(I) the need for a dependent person to whom a relevant subvention is paid to continue to be maintained in a nursing home, or

(II) the means of the dependent person,

on the same bases as are specified in section 7B(2) and (3),

(ii) by—

(I) where subparagraph (i)(I) is applicable, a person (who may be an employee of the Executive) who, in the opinion of the Executive, is suitably qualified to do that review, and

(II) where subparagraph (i)(II) is applicable, an employee of the Executive, or any person nominated in writing by the Executive,

and

(b) the results of the review to be put in writing and provided to the Executive.

(2) Subject to subsection (4), where the Executive, after having had regard to a review provided to it pursuant to subsection (1)(b), is satisfied that the dependent person to whom the review relates—

(a) is no longer qualified for the payment of a relevant subvention, or

(b) qualifies for the payment of a different relevant subvention than that currently being paid to the person,

then the Executive shall arrange for—

(i) if paragraph (a) is applicable, the cessation of the payment of a relevant subvention to the person,

(ii) if paragraph (b) is applicable and without prejudice to the generality of section 7C(2), the different relevant subvention to be paid to the person.

(3) Where the Executive makes a decision under subsection (2) in respect of a dependent person, it shall, as soon as is practicable after the decision is made, give notice in writing to—

(a) the person, and

(b) if section 7C(2) is applicable, to the proprietor of the nursing home in which the person is or is to be maintained,

of the decision and the reasons for the decision.

(4) Where a decision of the Executive under subsection (2) in respect of a dependent person means that—

(a) a relevant subvention will cease to be paid to the person, or

(b) a lower relevant subvention will be paid to the person,

then the Executive shall not implement that decision before the expiration of 60 days after the date on which it has given notice under subsection (3) of the decision to the person.

Appeals against decisions of Executive, etc.

7E.— (1) Subject to subsection (2), a person (‘relevant person’) may appeal against a decision of the Executive under section 7A(3), 7C(1) or (4) or 7D(2) by giving notice in writing to the Executive not later than 60 days after notice of the decision was given to the relevant person under section 7A(4), 7C(3) or (5) or 7D(3), as the case may be.

(2) An appeal under subsection (1) shall—

(a) be in a form approved by the Executive, and

(b) state the reasons for the appeal.

(3) Where the Executive receives an appeal under subsection (1), it shall appoint a person (who may be an employee of the Executive) to consider the appeal.

(4) The person appointed pursuant to subsection (2) to consider an appeal under subsection (1) shall—

(a) comply with guidelines issued by the Executive in respect of the procedure to be followed with respect to the consideration of any appeal,

(b) consider any written or oral objections made by the appellant in support of the appeal,

(c) make a decision (‘relevant decision’) in writing determining the appeal as soon as is practicable in all the circumstances of the case, and

(d) send a copy of the relevant decision to the relevant person and the Executive together with the person’s reasons for the decision.

(5) An appeal shall lie to the High Court by the relevant person in respect of the relevant decision and the Executive may cross-appeal the appeal.

(6) An appeal under subsection (5) shall be heard otherwise than in public at the request of the relevant person.

(7) A decision of the High Court on an appeal under subsection (5) shall be final except that, by leave of the Court, an appeal from the decision shall lie to the Supreme Court on a specified question of law.

Proprietor of nursing home to notify Executive of death or discharge of dependent person who is paid relevant subvention, etc.

7F.— (1) Where a dependent person who is paid a relevant subvention—

(a) dies in a nursing home,

(b) is discharged from a nursing home, or

(c) otherwise permanently departs from a nursing home,

the proprietor of the nursing home shall, not later than 48 hours after the date of the person’s death, discharge, or other departure, as the case may be, give notice in writing to the Executive of the name of the person and of that date.

(2) Where the proprietor of a nursing home proposes to discharge from the nursing home a dependent person who is paid a relevant subvention, the proprietor shall, not later than 14 days before the proposed date of discharge, give notice in writing to the Executive of—

(a) the name of the person and of the proposed date of discharge, and

(b) the reasons for the discharge.

(3) The proprietor of a nursing home who, without reasonable excuse, contravenes subsection (1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding €1,000.

(4) Where a dependent person maintained in a nursing home—

(a) starts to be paid a relevant subvention, or

(b) ceases to be paid a relevant subvention,

then the Executive shall, as soon as is practicable thereafter, give notice in writing to the proprietor of the nursing home of that start of payment, or cessation of payment, as the case may be.

Recovery of payment of relevant subvention procured through fraud or misrepresentation, etc.

7G.— Where it comes to the knowledge of the Executive that—

(a) all or part of the payment of a relevant subvention to a dependent person has been procured through fraud or misrepresentation, or

(b) there has been an overpayment of a relevant subvention to, or in respect of, a dependent person,

then the amount of that payment so procured, or of that overpayment, as the case may be, shall be repayable to the Executive on demand and, if not so repaid, the Executive may recover the amount, as a simple contract debt in any court of competent jurisdiction, from the dependent person to whom the payment or overpayment, as the case may be, was made or the estate of that person.

Minister may make regulations for the purposes of this Part.

7H.— (1) Subject to subsections (2) and (3), the Minister may, with the consent of the Minister for Finance, by regulations prescribe—

(a) a percentage in respect of section 7B(3)(b)(ii),

(b) an amount in respect of section 7B(3)(b)(iv),

(c) a percentage in respect of section 7B(4),

(d) an amount in respect of section 7C(4)(a),

(e) an amount in respect of section 7C(4)(b)(i)(I),

(f) an amount in respect of section 7C(4)(b)(i)(II),

(g) an amount in respect of section 7C(4)(b)(ii),

(h) an amount in respect of section 7C(4)(c),

(i) an amount in respect of subsection (4).

(2) The Minister shall only exercise the power under subsection (1)(a) or (c) to prescribe a percentage referred to in that subsection such that the percentage prescribed reflects the average cost of living in the State.

(3) The Minister shall only exercise the power under subsection (1)(b), (d), (e), (f), (g), (h) or (i) to prescribe an amount referred to in that subsection such that the amount prescribed reflects the rate of inflation in the State.

(4) Subject to subsection (5), the amount of subvention which may be paid under section 7C(1)(a) is a weekly maximum rate of €300 or the prescribed amount, whichever is the greater.

(5) Without prejudice to the generality of section 7C(1)(b) or 7D, the amount of the prescribed subvention that is applicable to a dependent person shall, by virtue of this section, be reduced by the amount by which such person’s means, as determined in the assessment referred to in section 7B(3) or review under section 7D, as the case requires, made in respect of such person, exceeds the weekly rate of—

(a) subject to paragraph (b), state pension (non-contributory),

(b) any successor to that pension in any case where that pension ceases to be provided,

payable at the time of assessment.

Transitional provisions.

7I.— (1) Where immediately before the date of commencement of this section a person was being paid a subvention (‘old subvention’) under the revoked Regulations, then, for so long on or after that date that the person is maintained in a nursing home, the person shall, subject to subsection (2), be paid, in lieu of the old subvention, a relevant subvention equivalent to the old subvention.

(2) Nothing in subsection (1) shall be construed to prevent section 7D operating to cause—

(a) a relevant subvention referred to in that subsection to cease to be paid to a person referred to in that subsection, or

(b) a relevant subvention to be paid to a person referred to in that subsection which is not equivalent to the old subvention which was paid to the person.

(3) In subsection (1), ‘revoked Regulations’ means the Nursing Homes (Subvention) Regulations 1993 ( S.I. No. 227 of 1993 ) revoked by section 9 of the Health (Nursing Homes) (Amendment) Act 2007.

Executive shall issue guidelines.

7J.— (1) The Executive shall, as soon as is practicable—

(a) for the purpose of providing practical guidance, in respect of any provision of this Part (including section 7B(3)(b)(v)), to dependent persons, applicants, and persons (including employees of the Executive) referred to in section 7B(1) or 7D(1)(a)(ii), prepare and issue such guidelines, not inconsistent with this Act, as it considers suitable for the purpose,

(b) for the purpose of making relevant information available, in respect of any provision of this Part which imposes a function on the Executive, prepare and issue guidelines, not inconsistent with this Act, setting out the manner in which the Executive proposes to perform that function.

(2) The Executive shall cause guidelines issued under subsection (1) to be published on its website.

Tax clearance.

7K.— (1) In this section, ‘ tax clearance certificate ’ means a certificate under section 1095 (as substituted by section 127 (b) of the Finance Act 2002 ) of the Taxes Consolidation Act 1997 .

(2) The Executive may refuse to effect the payment of a relevant subvention in any case where the Executive is satisfied that a tax clearance certificate is not in force in respect of the proprietor of the nursing home in which the dependent person concerned is or intends to be maintained.”.