I move amendment No. 12:
"In page 19, subsection (16)(a), line 17, after “relates,” to insert “or if the applicant had died or become incapable of acting, means a person affected by the decision,”.
Section 16 concerns appeals against decisions and begins, "An aggrieved person may", before going through a appeals procedure. Section 16(16) then introduces a definition of the term, "aggrieved person". Logic would suggest that this definition should have been included before its first mention. However, I must live with my confusion, as the world of parliamentary draftspeople is a world into which I have no insight. Moreover, given my past experiences, the world in which the Department of Health and Children drafts legislation is a world into which I have even less insight.
Nevertheless, the definition of "an aggrieved person" in section 16(16) states "in the case of any decision referred to in that subsection, means the applicant". Hence, if the applicant is deceased or is incapable of taking responsibility for himself or herself, apparently there is no recourse to appeal. This is a good way to invite a court challenge. It will invite trouble to state that no appeal can be made because people are of unsound mind, or whatever the appropriate phrase is, and cannot therefore make appeals themselves. Similarly, the suggestion that the legal representatives of a deceased person cannot appeal will also make trouble.
I reiterate that the principle of charging people for the use of public nursing homes is perfectly reasonable, although it is a pity that the legislative basis for so doing was not sorted out. I hope that a significant and substantial part of the money which will be refunded will be used to support these services, either through the scheme provided in this Bill or some other. Like all Members I have heard a few unfortunate and regrettable anecdotes pertaining to relatives who had not been seen for years but who came out of the woodwork with the appearance of a sniff of money.
Nevertheless, given my understanding of the law's operation, I propose, in respect of the definition of "an aggrieved person", to add to the phrase, "means the applicant", and the phrase, "or if the applicant had died or had become incapable of acting, means a person affected by the decision".
Can the Minister of State explain how he can be certain this will not be open to significant legal challenge? The applicants will be elderly people and will get to the stage where they are not capable of making the decision. If I wanted to be nasty, I could suggest that it is hoped that frail people will not go through the entire complicated process of appeal and that only a few will so do, or, in other words, the Department is trying to deter people from appealing. I hope this is not the case. Undoubtedly, however, neither someone who is incapable of making an appeal himself or herself nor the estate of a deceased person can appeal. While I cannot guarantee its outcome, I can guarantee that a forceful legal challenge will follow this provision as sure as night follows day. This may give rise to a major delay and perhaps to further costs.
