Health (Nursing Homes)(Amendment) Bill 2006: Committee Stage.
This is a meeting of the Select Committee on Health and Children on the Health (Nursing Homes)(Amendment) Bill 2006. Apologies were received from Deputies Moloney and Fitzpatrick. I welcome the Minister of State at the Department of Health and Children, Deputy Seán Power, and his officials to the meeting. With the agreement of members, I propose that we review progress at 1 p.m., if we are still here, and decide whether to continue until 2.30 p.m. or suspend until next Wednesday. Is that agreed? Agreed.
Before we begin to consider the amendments, I draw the attention of members to amendment No. 11 tabled by Deputy McManus which seeks to exclude, without qualification or exemption, the principal residence of a person from the assessment of assets for means to determine eligibility for a subvention. The effect of this amendment would be to increase the number eligible for the subvention. Therefore, it has the potential to increase the charge on the Exchequer and must be ruled out of order.
Amendments Nos. 17 and 33 tabled by Deputy Twomey have also been ruled out of order because they seek to delete the provision that the Health Service Executive should only determine amounts of alternative subventions after taking into account the resources available to pay them. The amendments would thereby allow for alternative subventions to be determined regardless of the availability of resources. This has the potential to increase the number of alternative subventions which can be paid and therefore raise a charge on the Exchequer. The amendments are, therefore, ruled out of order.
To which amendments is the Vice Chairman referring?
Amendments Nos. 17 and 33 tabled by Deputy Twomey and amendment No. 11 tabled by Deputy McManus.
NEW SECTION.
Amendments Nos. 1 to 4, inclusive, 35 and 36 are related and can be discussed together.
I move amendment No.1:
In page 3, before section 1, to insert the following new section:
1.--In this Act, "the Principal Act" means the Health (Nursing Homes) Act 1990.".
These are technical amendments which the Minister of State can either accept or reject.
I do not have good news for the Deputy on that front.
Does that set the tone for the day?
I take it the amendments are not being accepted.
They do not offer any improvement on what is in the Bill. Therefore, I do not propose to accept them.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
Section 1 agreed to.
Amendment No. 3 not moved
Section 2 agreed to.
SECTION 3.
Amendment No. 4 not moved.
Amendments Nos. 38, 39 and 41 are consequential on amendment No. 5 and will be discussed together.
I move amendment No. 5:
In page 4, line 28, to delete "regulations made under section 7H" and substitute "section 7H(4)".
This is a technical amendment arising as a result of including the rates of subvention in the Bill at amendment No. 32.
We are deleting the phrase "regulations made under section 7H" from page 4 and substituting it with "section 7H(4)". It is simply a technical amendment.
Does this tie in what is contained in amendment No. 6? The Minister of State has said that the amendment is a technical one but will it get rid of regulations it if is accepted?
Are there any questions relating to amendments Nos. 38, 39 and 41?
Why are there so many Government amendments to what is a very short Bill? Did the Minister of State have particular concerns about this legislation?
No, there is no great change taking place, other than underpinning the scheme in primary legislation. A number of the amendments tabled are technical in nature.
The amendments have been tabled on the advice of the Attorney General.
Does the Minister of State not get advice from the Attorney General before publishing Bills? That is what I cannot understand. Why are so many amendments appearing on Committee Stage? I thought Committee Stage was primarily about scrutiny of the legislation by the Opposition in a public arena. I do not understand why the Department does not do its homework beforehand. If the Attorney General raises issues, they should be dealt with before the Bill is published.
We are always doing our homework and examining areas where we believe improvements can be made. During the Second Stage debate, I listened attentively to contributions from both sides of the House, most of which dealt with issues not covered by the Bill.
Having examined the subvention scheme, it was felt that we should ground it in primary legislation and that is what we are attempting to do here. The scheme was based on regulations which came into force following the enactment of the Health (Nursing Homes) Act 1990. We were advised to put the scheme on a more solid footing.
That is not the point I am making. I understand the purpose of the Bill. It seems to be a particular characteristic of health Bills that even the simplest of them generates numerous amendments. These amendments have not been prompted by the Opposition or by Opposition speeches on Second Stage. It appears to me that the groundwork for health Bills is not completed before they are published which results in a catch-up process on Committee Stage. It is as if the Department is still writing the Bill. Does the Attorney General see the Bills before they are published?
I will not pretend I know the total input of the Attorney General to any particular Bill.
Perhaps someone from his Department could inform the Minister of State.
As I have said, most of the amendments tabled are technical in nature. We have been operating a scheme under regulation and have been advised to put it into primary legislation. The tabling of some amendments had the knock-on effect of necessitating further amendments to the Bill.
I am asking a simple question. What is the actual process involved? Does the Attorney General examine the Bill before it is published or is the legislation published, the debate initiated and amendments then tabled on Committee Stage? This process creates difficulties for members of the Opposition in terms of providing legislative scrutiny.
The public has a great interest in subventions. I have just returned from County Donegal, where I was visiting health facilities. Beautiful private nursing homes were lying half empty, yet the people who should be occupying them could not do so because the subvention scheme is so defective. Everybody understands the law needs to be changed but I am inquiring about the process which operates within the Department in this regard. I recall other Bills to which a large number of amendments were introduced on Committee Stage by the Minister.
As the Minister of State has noted, Ministers also consider proposals made by Government party Members on Second Stage.
Is the Vice Chairman saying these amendments were introduced at the prompting of an Opposition speech?
I do not know but we have to discuss the amendments before us rather than the theoretical reasons for their existence.
I apologise but we have a job to do and I want to know the source of the amendments. Why are amendments proposed regularly by the Minister for Health and Children on Committee Stage?
It is a fair question but it might better be asked during a meeting of the Joint Committee on Health and Children.
However, the Minister of State is attending this meeting.
I concur with Deputy McManus. Amendment No. 38 clearly shows that the Government overlooked SI 224 of 1993 and now wants to include it with SI 227 of 1993. However, amendment No. 39 does not provide any clarity in respect of the definition of "spouse".
We will discuss amendment No. 39 when we come to it.
That is the whole idea. We are discussing these amendments, not voting on them.
We have just dealt with amendment No. 5 and are now discussing amendment No. 38. Deputy McManus raised a general question.
We are also discussing amendment No. 39.
No, amendment No. 39 will be discussed when we are finished with amendment No. 38.
As it is in the same group, we can discuss it.
As I mentioned, the majority of these amendments are technical in nature. The scheme could be open to criticism for being interpreted differently in various parts of the country and, by providing for it in primary legislation, we are hoping for uniformity in its administration. The Bill revokes SI 224 and amends the Health (Repayment Scheme) Act. We have decided to include the rates in the Bill to give them legal effect as soon as the legislation is enacted. With regard to Second Stage of the Bill, certain criticisms which were made in respect of the rates, the operation of the scheme and private versus public care were useful but do not apply in this context because we are not making any major changes.
Will the Minister of State clarify when the Attorney General saw the Bill?
I will have to revert to the Deputy on that matter.
Can the officials accompanying the Minister of State not advise him?
The Attorney General is involved throughout the drafting process.
Why are amendments which have nothing to do with Opposition speeches now being introduced on his advice?
My point is that it is very usual with regard to health Bills. I am seeking information on why it happens on Committee Stage. On occasion, quite complicated amendments have been proposed on Committee Stage and it has been impossible to conduct the scrutiny we are charged to provide.
Surely, Opposition and Government Deputies are entitled to raise issues on Second Stage which the Minister can address through amendments tabled on Committee Stage.
The Vice Chairman is saying it was the result of an Opposition argument.
I am clearly not going to get far on this matter but I hope I have made my point.
We have now completed our discussion of amendment No. 38 and I invite members to address amendment No. 39.
Amendment No. 39 is obviously an amendment to the Health (Repayment Scheme) Act 2006, which was only passed by the Dáil before the summer recess. How exactly is the definition of "spouse" changed?
This amendment is for the purpose of correcting the cross-reference to the Social Welfare Consolidation Act 2005 in the definition of "spouse" in section 2 of the Health (Repayment Scheme) Act 2006 with a corollary amendment to section 10.
I think I missed the second half.
What is the change being proposed?
It is correcting a cross-reference to the Social Welfare Consolidation Act 2005 on the definition of "spouse".
Therefore, is it a mistake? It is a mistake.
The mistake was made in the Health (Repayment Scheme) Act.
It is only a small mistake. We should not get too excited about it.
It is nice to know about these matters.
There must be proper scrutiny, otherwise we would not need to meet for three hours this morning.
Amendment No. 41, which amends the Title, arises as a result of the revocation of the Health (Inpatient Services) Regulations 1993 and the addition of section 10 to this Bill.
Amendment agreed to.
Amendments Nos. 6 and 7 are related and may be discussed together by agreement. Is that agreed? Agreed.
I move amendment No. 6:
In page 5, line 7, to delete "(including statutory declarations)".
I ask for an explanation of "statutory declarations".
These amendments concern the application process for subventions and it is considered reasonable to request a statutory declaration in support of an application because significant sums of public money may be involved. To make a statutory declaration, a person must state in front of a witness that he or she believes something to be true.
Does the applicant fill out a form to make a statutory declaration of his or her means and assets? Is that a legal document? Is it signed by a solicitor, a peace commissioner, a commissioner for oaths or all three?
It can be any of the people mentioned.
Must it be signed by some such person?
I wanted to find out if when people are filling in subvention forms, they need to go to the trouble of seeing a solicitor or commissioner of oaths to have the statutory declaration filled. If they fill in the form, it is extra hassle because if they fill in the initial application form and it is found out to be wrong afterwards, they can be prosecuted. Is there a purpose to putting them to the trouble of getting a statutory declaration?
Having to have any form witnessed creates a certain amount of hassle and takes time but it is normal provision in legislation and as we are dealing with public money, it is important that we try to safeguard it as best we can. We are not saying a declaration is required in all cases.
The legislation specifies that an application shall be "accompanied by such documents (including statutory declarations) as are specified in the application". That means it is required in all cases.
It is not required in all cases but the Minister may require such declarations. It was felt that it was necessary to include this power. It may be requested but not in all cases.
Is the Minister including a number of items that she may request afterwards by regulation?
No, but as I mentioned, substantial sums of money are involved-----
I understand that but these documents and applications undergo a degree of scrutiny when people send them in and most people must fill in the application form which is counter-checked against their income and bank statements. I wonder if this is necessary.
It should be a last resort and is a tool that would be used if there were unanswered questions. We do not envisage using it regularly but is included to protect State money.
State money is protected without it and I wonder why it is included. It is too bureaucratic. We are supposed to make subvention simpler and easier to understand and make the process easier for elderly people. This has the potential to make it more awkward for people if they must go to a solicitor or commissioner of oaths to sign declarations on their behalf. If the solicitor or commissioner of oaths does not know the person, he or she will have to jump through hoops and pay additional costs for no apparent reason.
It would not be for no apparent reason.
Who is the Minister targeting?
Generally a person fills in an application and provides all the details as requested. In the event that it becomes difficult or further proof is required that it is accurate, the statutory declaration may be sought. We do not see it being used on a regular basis but it is necessary to include the power. It gives flexibility.
Is this statutory declaration included when one applies for a medical card?
It can be sought. We are talking about a significant amount of money. This year we are spending approximately €160 million on the subvention scheme and it is important we ensure that it goes to those who need it most. These are just safeguards. If we receive an application that raises many questions, we can use this tool to clarify a situation, not to penalise somebody.
I will push the amendment to Report Stage because I might want to get additional information on it.
Amendment, by leave, withdrawn.
I move amendment No. 7:
In page 5, line 19, to delete "section 7C(1)" and substitute the following:
"section 7C(1),
but in all cases, the Executive shall provide the applicant with adequate opportunity--
(i) to amend his or her application to such an extent that it shall satisfy subsection (2), and
(ii) to provide such supplementary information as the Executive may reasonably require to enable it to determine the application under section 7C(1)".
This amendment is straightforward. It would allow people who have sent in their initial applications and who then find they have additional information to provide to add that information to the initial forms rather than having their applications rejected and providing the additional information at appeal.
The Health Service Executive is obliged to act in a reasonable and fair fashion at all times. There is nothing to prevent an applicant from putting in a fresh or amended application at any time.
Amendment, by leave, withdrawn.
Amendments Nos. 8, 16 and 20 are related and will be discussed together.
I move amendment No. 8:
In page 5, between lines 24 and 25, to insert the following subsection:
"(5)(a) A person applying for a subvention, or a person acting on his or her behalf, may appeal, to an appeals officer designated by the Minister, on the grounds of--
(i) his or her means and circumstances, or
(ii) any abatement of the rate of subvention to that person of the maximum rate appropriate to that person's level of dependency,
against a decision of the Executive--
(I) not to pay a subvention, to pay a lower amount of subvention than the maximum rate,
(II) to withdraw a subvention, or
(III) to reduce a subvention, within 28 days of the date on which the Executive notified the person of its decision and the grounds for its decision.
(b) The designated appeals officer shall consider an appeal under paragraph (a) and shall inform the person making the appeal of his or her decision within 28 days of the receipt of the appeal.
(c) For the purpose of deciding the appeal, the designated appeals officer may request information from the Executive and from the person to whom the appeal refers or a person acting on his or her behalf.
(d) A decision of an appeals officer shall be final and conclusive.
(e) Where the Executive has determined that a person does not qualify for a subvention, or qualifies for less than the maximum rate of subvention, it shall inform the applicant of his or her right to appeal the decision under this subsection.”.
These amendments are all related to the appeals process on the regulations. Most of it comes from the old 1993 regulations. Some of my other amendments are also related to the old regulations that are now being repealed. Have all the appeals mechanisms in the old regulations been incorporated into the new regulations or have some of them been dropped?
It is not considered necessary to include an appeals provision as set out in the proposed amendments. Under the appeals section 70, the person appointed by the HSE to consider the appeal must comply with the HSE's guidelines in respect of procedure. An appeal shall also apply to the High Court on a specified question of law. An appeal may also apply to the Supreme Court if the HSE sees fit.
Some provisions of the old 1993 regulations that the Minister is to remove in the final amendment have not been transposed into the primary legislation. Have all those mechanisms of appeal been transposed into the primary legislation or have some of them been lost along the way?
The previous regulations might have been too cumbersome. The appeals system is transparent and if people are not happy with it, they can take it to the courts.
That makes it more complex and we are trying to avoid that. I am not getting much information.
Amendment, by leave, withdrawn.
Amendments Nos. 9 and 10 not moved.
I was looking for an explanation from the Minister of State of the purpose of amendment No. 12.
We are now on amendment No. 12 in the Minister's name. The Deputy proposes an amendment to the amendment.
What is the Minister looking to achieve?
It is a technical amendment.
I will withdraw my amendment to amendment No. 12.
Before that is done, amendment No. 11, in Deputy McManus's name, is ruled out of order.
I must say it is regrettable, if not surprising. I proposed that the family home of the applicant be excluded.
I do not usually speak for very long. It is regrettable because many people, in particular the elderly, are concerned. The provision in question can be used in a very inappropriate fashion, meaning an elderly person has his or her income calculated in a way that bears no relation to the reality of their lives. One of the difficulties is that it varies from place to place, leading to grave injustices in some areas while sensitivity prevails in others. The family home is central to this Bill and I regret very much that my amendment has been ruled out of order, because we should consider how best to ensure a fair and just system is in place for the estimation of income.
We will move on to amendment No. 12.
I have a quick question on why amendment No. 11 was ruled out of order. I read the Minister of State's final speech on Second Stage and saw that a question had been asked on the provision to take into account 5% of the value of a house as income in the application. People have had their applications for subvention rejected on the grounds of that 5%. Its application seems to be discretionary because the HSE does not apply it uniformly. It is applied in some cases but not others. Even though the legislation is supposed to add consistency throughout the island, the 5% calculation does not seem to be made uniformly. That is the basis of Deputy McManus's proposed amendment. Deputy McManus sought an explanation why the HSE was to take 5% of the value of a house into account, called the "prescribed amount", and that is why it was raised on Second Stage by the Labour Party.
It is a significant issue but most would think it fair that people who have a home of a sizeable value should make a contribution towards the cost of their care. The principle of co-payment for long-term care is one that was accepted by the working group on long-term care which we established and is reflected in the social partnership agreement. It does not apply in all cases.
The Minister of State used the term "sizeable value". Can he define it?
We made changes recently relating to the value of property. I am aware that, because of different values throughout the country, it is difficult to obtain a balance. If somebody has a house worth €2 million-----
We are not considering those.
-----and wants to go into long-term care, it is only appropriate that he or she make some contribution towards the costs.
I am just using that figure as an example.
What about €1 million or €500,000 or €450,000?
Unfortunately we do not have a bottomless purse for any scheme. When providing money, a Department must be selective. Not everyone can qualify and there must be qualifying criteria. They can cause difficulties in some cases but, overall, it is fair to apply them.
This is my last question. As a result of this Bill, what will the national situation be as regards the family home?
It is not going to change.
We will still have variations, meaning some will be unjustly treated.
On Second Stage of this Bill the Minister for Health and Children, Deputy Harney, made it quite clear that the limit for a family home in rural areas would be €300,000. Anything less would be excluded. In Dublin the figure was €500,000. It seemed that those figures would apply strictly, but the reality is different. I am sure Deputy McManus receives the same feedback as I. People whose houses are below those values are being hit for 5% of their value in their application. This is Committee Stage and the time for the Minister of State to explain the situation clearly so that we are under no illusions. Section 7C(4)(b)(ii) refers to cases where: “the applicant’s annual income is not less than €9,000”. On Second Stage I asked the Minister of State what was specifically meant by the limit of 5%. It would take a house with a value of €180,000 or more to meet a ceiling of €9,000.
If a house were worth €180,000, it would not be included in the first place.
That does not seem to be the case as far as the Health Service Executive is concerned. It seems to calculate the amount in certain cases. The Bill mentions annual income of €9,000 while another section states that 5% of the value of the house can be taken as income. Another section states that €300,000 is the minimum value in rural areas and €500,000 in Dublin. We are confused and seek clarity from the Minister of State on Committee Stage. What does it all mean? Are the limits of €300,000 and €500,000 rock solid? If a house is valued at less than those figures, can a person leave the details off his or her application form? What is the purpose of the reference to 5% of the value of a house? If an elderly person's house is valued at €310,000, 5% of which is approximately €15,000, is that considered to be income of €15,000?
We are discussing an amendment that has been ruled out of order.
The Minister of State should have answered this question at the end of Second Stage. I read his speech and it was not answered. The next opportunity I had to ask the question was on Committee Stage. If I do not receive an answer today, I will ask it again on Report Stage. If the Bill is passed into law we will all be confused.
I will try to be as helpful as I can. Putting the provision in question into primary legislation was intended to bring clarity to the scheme in the form of a standardised approach to its implementation throughout the country. The HSE is in the process of standardising the means tests. People have expressed criticism regarding how they are being interpreted in different parts of the country, particularly with regard to a house. When carrying out a means test for the purpose of subvention, the applicant's home is not taken into account in certain circumstances. A person's home will not be taken into account in all circumstances. This is so if it is occupied by a spouse, a child under 21 or a relative in receipt of certain social welfare payments, or if a child is in education.
With regard to the 5% figure, we have increased thresholds. In Dublin the value taken into account is more than €500,000, and in the rest of the country it is more than €300,000. If one was taking into account a person living in a house valued at €180,000, that would not be taken into consideration.
The HSE is not taking into account a person's house valued at less than €300,000 in a rural area or less than €500,000 in the Dublin area. The HSE cannot be arbitrarily applying the 5% figure.
These are the limits we introduced some months ago.
This is important. This is the type of stuff that were are getting.
Yes, but I want to be fair to everybody, both the Minister of State and the committee members. I will read the clerk's guide to the procedures. It states:
If a member queries the disallowance, the Chairperson should read the detailed explanation provided by the Bills Office and advise the member that while the amendment cannot be moved, it can be discussed in the context of the appropriate section of the Bill.
That is what we are doing.
That is what we are doing here. The Minister of State has given his explanation.
I have one final question because the Minister of State also raised issues. How is the value of the house determined? Is it determined by the HSE or does the individual bring forward a valuation?
A valuation would be obtained from an auctioneer.
Therefore, it is up to the individual and that is accepted by the HSE.
I will not state that it would be accepted. We would like to think that in most cases it would be.
It is quite an important point. The 5% figure is in the legislation and, as it is interpreted, somebody could be going through what we are discussing and the Minister of State's interpretation. It is important to clarify the matter. The Minister of State is indicating that a house in a rural area worth less than €300,000 is disregarded from consideration, as is a house in Dublin valued at €500,000. Is that correct?
With regard to the 5% figure, when does it come into effect? If I had a house valued at €750,000, is the full value taken into account or is the first €300,000 or €500,000 disregarded before the 5% rules comes into effect? These are the type of questions we will all be asked in our clinics during the coming months when people are submitting their appeals to the HSE.
The two phrases we are discussing are "standardising" and "greater consistency". These are not very difficult questions and I am not trying to trick the Minister of State. I would just like an answer for a person who may come to me stating that a house is valued at €600,000, for example, and if the person will get a subvention. I may state that they will because the value is only €100,000 over the level, and 5% of that would be €5,000.
If the value of the house is over €500,000, there is an imputed market value of 5% taken on it.
It is taken from the full value of the house if it exceeds €500,000. Does that always apply as income to every house?
No, I have stated that it does not always apply. It may apply.
The Minister of State read out examples of somebody else living in the house.
Yes, if, for example, a spouse or person under 21 lives there.
The value of the house is then disregarded.
It is the case where there is the possibility that somebody may be made homeless.
We have spent adequate time discussing this matter. We will move to amendment No. 12.
I hope we will be able to send a letter to Professor Drumm outlining the Minister of State's views in order that it can be passed on.
As the Minister of State is in a position to do so, could he send us the guidelines that are in place currently on this scheme?
Is the Deputy referring to the HSE guidelines?
Amendment No. 11 not moved.
I move amendment No. 12:
In page 8, line 46, after "inspection" to insert "carried out".
This is a technical amendment.
Amendment No. 1 to amendment not moved.
Amendment agreed to.
I move amendment No. 13:
In page 9, between lines 2 and 3, to insert the following subsection:
"(8) (a) A person whose degree of dependency or means are assessed by a person, or a person acting on behalf of that dependent person, may appeal, to an appeals officer designated by the Minister on the grounds that he or she is not satisfied that his or her means and circumstances were adequately, properly or correctly assessed.
(b) The designated appeals officer shall consider an appeal under paragraph (a) and shall inform the person making the appeal of his or her decision within 28 days of the receipt of the appeal.
(c) For the purpose of deciding the appeal, the designated appeals officer may request information from the Executive and from the person to whom the appeal refers or a person acting on his or her behalf.
(d) A decision of an appeals officer shall be final and conclusive.
(e) Where a report is produced as to the means or degree of dependency of a person, and such report is provided to the Executive, the Executive shall inform the applicant of his or her right to appeal the contents of that report under this subsection.”.
This concerns part of the appeals process relating to the 1993 regulations. I think it may be a simple transposition. It relates to what we have been discussing. Is the Minister of State indicating that the appeals process is included in the legislation or is there a new appeals process?
As we have outlined, the appeals provision at section 7E of the Bill covers appeals against a decision under sections 7A(3), 7C(1), 7C(4) and 7D(2) and, therefore, it is not considered necessary to include an appeals provision as set out in the proposed amendments.
Under the appeals section 7E, the person appointed by the HSE to consider the appeal must comply with the HSE's guidelines in respect of procedure. An appeal shall also lie to the High Court, and on a specified question of law an appeal may also lie to the Supreme Court. The appeal to the courts also ensures compliance with Article 6 of the European Convention on Human Rights.
There is no substantial difference between what the Minister of State is indicating and what was contained in the regulations.
The HSE will be providing guidelines, but we think it may not be as detailed. It will be somewhat more straightforward than it has been.
Therefore, we do not have guidelines on the appeals system for this legislation.
No, the HSE will produce them.
Therefore, when this legislation is passed in the Dáil, we will be getting rid of the appeals process currently in place and will have to wait for the HSE to draw up a new set of guidelines.
That is an unusual situation in which to find ourselves. We are getting rid of an appeals process for people who are not getting subventions. If this legislation is passed and signed into law without guidelines being drawn up by the HSE, people would actually have no appeals process to access.
We are obliged under the legislation to produce guidelines and they will be provided by the HSE.
Within what timeframe will that happen?
It will probably be after the legislation is passed.
We understand that, as soon as the legislation is passed, the guidelines will be produced by the HSE.
Is the Minister of State aware that we are still waiting six months to get answers to parliamentary questions from the HSE? The latter is not known for its speedy delivery of anything.
The Minister of State should take my amendment on board and we can repeal it after the HSE delivers its guidelines.
In section 7J, the Bill provides that the Health Service Executive shall issue guidelines that provide practical guides in respect of provisions. For example, the guidelines would detail the process to be followed to decide the amount of subvention to be paid to an applicant, if any. These guidelines would be published on the website of the HSE.
Would the Minister of State trust it?
It would be anxious to have the issue clear for people also. The more information and clarity the HSE can provide for people in submitting the applications, the less difficulty will be created for the executive.
The Minister of State should see it from our point of view. It is a strange situation in that we are going to vote to pass legislation in Dáil Éireann, and there will be an appeal process for people looking for subvention. We must then wait to see what guidelines the Health Service Executive will give to applicants. This will entail getting rid of an appeals process by the House creating a "trust the HSE" attitude.
It is not as if we are starting from scratch. There is an appeals——
It does not really matter whether we are starting from scratch. We should know for what we are voting.
We have had an appeals system in place.
What will happen to the people who get caught in the period between the end of this appeals system and the introduction of the guidelines?
The HSE will not produce draconian guidelines as soon as the legislation is passed. They will be based on the legislation.
Without any time limit. Why would the HSE be under duress to produce guidelines? Not having appeals suits it.
The HSE is anxious to have a uniform scheme throughout the country. It is aware of different interpretations that-----
Nobody is arguing that point, that is not the issue. The issue is the appeals process.
It is obliged under the legislation to produce guidelines.
However, it is not obliged to do so within a timeframe. The difficulty is presented by the timeframe, not the obligation. What will happen during the interregnum?
At present, the HSE is administering the scheme and dealing with the appeals process. It is similar to any changeover.
The HSE came into existence on January 2004 but there was no chief executive officer until September of that year. It took nine months to get a boss for an organisation of 100,000 people, with a budget of €13 billion.
It is still not functioning properly.
The guidelines should be presented to the committee before we vote on Committee Stage of the Bill. They should, at least, be presented before the Report Stage is taken in the Dáil. We talk about good governance and it would be crazy to pass this legislation getting rid of an appeals process without having seen the guidelines. That would be a funny way of doing business. I thought we would have concluded our deliberations by 10.30 a.m., but we are discovering more and more problems.
It will require an order for it to commence. The Act shall come into operation on such day or days as the Minister for Health and Children may appoint by order or orders, either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.
Will the Minister of State at the Department of Health and Children give an undertaking that the Act will not be brought into force until the guidelines are available? That would avoid the difficulties mentioned.
It is quite clear that there can be different days appointed for different purposes and provisions. It would not be appropriate to-----
We are referring to the appeals system. People will be caught without a means of appeal if this matter is not dealt with.
Of course it is because the Minister of State cannot guarantee when the guidelines will be released.
What the Deputy is saying is incorrect. She is trying to frighten people. There is an appeals system in place already. We are bringing in a new system on which the HSE will produce guidelines. This is based on the legislation we are passing. People refused will have a means of appealing the decision.
How will it operate if the guidelines——
We have discussed this matter. I am going to be obliged to ask that the amendment be put.
Will the Minister of State undertake that the current appeals system will remain in place until all the work that is required to introduce the new appeals system is completed?
I guarantee that there will continue to be an appeals system in place. The fact that there are no guidelines does not mean that there is no appeals system.
Why then do we need guidelines?
Is Deputy Twomey going to press the amendment?
I will move it to Report Stage.
I will withdraw it and retable it on Report Stage, during the debate on which, perhaps, the Minister might produce a set of guidelines.
Amendment, by leave, withdrawn.
Amendments Nos. 14 and 15 form a composite proposal and may be discussed together.
I move amendment No. 14:
In page 10, line 9, after "the" to insert "Greater".
This returns to the issue of the appeals process and the reason we are seeking the guidelines. The Bill states, "the executive may, at its discretion, refuse to pay a relevant subvention to an applicant". It goes on to list the reasons the HSE may refuse to pay a person. This may be seen in paragraphs (a), (b) and (c) of the relevant section. We want this discussed because it says “if the value of the applicants assets, excluding the principal residence, exceeds €36,000 or the prescribed amount, whichever is greater”. This is why we need a definition of the “prescribed amount”. If a house is valued at €600,000, 5% of this adds €15,000 to the applicant’s assets. Add some other assets to this and the €36,000 threshold is quickly broken.
Section 7C(4)(b)(ii) uses the phrase “the applicant’s annual income is not less than €9,000 or the prescribed amount, whichever is greater”. It is possible, after the next budget, that the non-contributory old age pension will exceed €10,000 per year and, again, the issue of the prescribed amount needs to be clarified.
The section to which the amendment refers relates to houses valued at €300,000 outside the Dublin area and €500,000 within the Dublin area. What is the definition of the Dublin area? Does it refer to County Dublin or the city of Dublin? Some consider that the Dublin area stretches as far as the commuter belt and includes places such as Gorey in County Wexford. My amendment seeks to define what is meant by the "Dublin area" in this Bill. Considering the value of applicants' houses can change by €200,000 when within or without the Dublin area, this needs to be clarified.
In this instance, we have used the same definition of the Dublin area as that used by the Department of the Environment, Heritage and Local Government when compiling data on house prices in Ireland. It is difficult to make a decision such as this but a boundary must be drawn. If we included the counties immediately surrounding Dublin, such as Kildare, then those bordering Kildare would also want to be included.
What does the definition actually include?
It includes Dublin city and County Dublin.
This is ludicrous. Dún Laoghaire-Rathdown has higher house prices than vast tracts of Dublin city and county. I presume Dún Laoghaire-Rathdown is included. North Wicklow house prices are as high as some of the most expensive parts of Dublin. Is the Minister of State at the Department of Health and Children suggesting that north Wicklow is not included?
There is no definition of the Dublin area in this legislation. The definition used by the Department of the Environment, Heritage and Local Government is arbitrary. This legislation should include a clear definition of the Dublin area.
I will take on board what the Deputy suggests and we may return to it on Report Stage. My understanding is that the Dublin area includes Dublin city and County Dublin. We will see if that needs to be defined.
This is tied in to the problem of the guidelines issued by the HSE.
It is the definition used by the Department of the Environment, Heritage and Local Government and we were satisfied to use it on that basis. We can define it on Report Stage if necessary.
I welcome the Minister of State's response. This is an extremely important matter and I thank Deputy Twomey for raising it. The Minister of State lives in a constituency that has experienced massive growth coming out from Dublin. My Wicklow constituency has also experienced massive growth from Dublin; it would be extremely difficult to find a house in Bray for €300,000. The Minister of State is consigning people who live in part of the greater Dublin area, who have to pay Dublin prices, outside the scheme because of geography. I do not think it is fair to his constituents, and I know it is not fair to mine. It is extremely important that he address this.
The Minister of State has undertaken to do that.
I asked about this prescribed amount before. Where do people stand in regard to subsection 7C(4)(a), which is where the applicant’s assets exceed €36,000? The minimum is €11,000 and the maximum is €36,000. If someone has a house valued at €550,000, it follows that €15,000 will immediately be considered as part of income. Is that the case? Perhaps I am wrong. How is this €36,000 calculated? Where do people stand in regard to their subvention? If they had €15,000, which some people consider as their burial money, will that result in their subvention being reduced by half? I raised this on Second Stage asking if this was calculated on a pro rata basis but my question was not answered.
As regards the applicant's income being not less than €9,000, if the applicant was in receipt of a non-contributory pension it would be approaching, or perhaps just exceeding, €9,000. Where does that leave applicants? We have no guidelines on appeal after this legislation is enacted. The Minister of State must make this clear out of necessity.
I would be the first to admit that the scheme itself leaves a lot to be desired. I am aware of its imperfections as much as anyone else. The rates for the thresholds can be changed. I understand what the Deputy is saying about the necessity of keeping this under review.
This legislation is adding to the confusion rather than giving increased clarity and standardising matters that the memorandum of this Bill discusses. If one is in receipt of a non-contributory pension, after the next budget the guidelines the HSE will issue might say that as one is in receipt of €10,000 from this pension one is not entitled to subvention. It might say that 5% of the value of one's house in addition to the non-contributory pension puts one above the threshold outlined in this legislation. Such a person would be deemed extremely rich under this legislation. Am I misinterpreting this legislation or can someone explain it to me?
The value of the house will not be taken into account in all circumstances.
That is not clear in the legislation.
It is quite clear what the applicant's principal is valued at. The only time one can be clear is when one's house is valued at less than €300,000 or €500,000 depending on location. Otherwise it is taken into account.
When carrying out a means test for the purposes of subvention the applicant's home is not taken into account in certain circumstances, where it is occupied by a spouse-----
——a child of 21, a relative in receipt of certain social welfare payments.
Does the Minister of State see what he is doing here? If an elderly person is living alone and applies for subvention after entering a nursing home, and the house is vacant, this legislation now applies 5% of the value of that house as income if it is valued at more than €300,000 outside the Dublin area. If they exceed the €9,000 limit, which most of them will because they will at the very least have a non-contributory old age pension, they could easily not get subvention. This is my reading of the legislation. The appeals process that currently exists is being removed. There is no such thing as standardisation because we are not sure what discretion the HSE will have in regard to this. If this is rigidly enforced the Department will not pay out much subvention next year. If the discretion is like that of the old health boards then this is a joke.
The difficulty in which I find myself is that this scheme has evolved since it was set up in 1993. At that time, we provided approximately €5 million for it; this year we will spend €160 million on it. There are many flaws in the scheme as it operates. This was set up by regulation and we have been advised by the Attorney General to put it into primary legislation. We will then have greater uniformity in how the scheme is operated throughout the country. A number of the issues the Deputy is raising and certain criticisms of the Bill——
I am seeking clarity, I am not criticising anything.
I have certain criticisms of it myself. On the enactment of the Bill we will need to undertake a broad review of long-term care of older people in both residential and community settings. This is what we have had; a Cabinet sub-committee has examined that. I would be the first one to accept that the scheme we have in place is far from ideal and we will have to make major changes and quickly.
If the non-contributory old age pension is increased in the budget and a recipient's income goes to €10,000 per annum, that will be more than the prescribed €9,000 threshold. Section 7C(4) provides that, "The Executive may, at its discretion, refuse to pay a relevant subvention to an applicant".
For the purpose of the Bill we used the subvention rates and the thresholds from the subvention regulations. The Bill puts in place the power to increase these rates by regulations.
Was I wrong in what I just said? If the old age pension increases to €10,000 at the next budget, could the HSE refuse a person's application for subvention because his or her income is in excess of €9,000?
It would be easy to just say yes or no.
That is the sort of clarity I am seeking. If I am reading this correctly, it says the executive may at its discretion refuse to pay the subvention.
Much detail and information must be provided when making an application. I hope what the Deputy is saying is incorrect. Without having the full details, it would be wrong for me to give a definitive answer to him.
There is no need for details, it is written plainly in the Bill. The executive may, at its discretion, refuse to pay a relevant subvention to an applicant and lists the criteria, if the house is worth more than €500,000, etc. Section 7C(4)(ii) reads, "the applicant's annual income is not less than €9,000 or the prescribed amount, whichever is the greater". The prescribed amount is the one on which the Minister of State might fool me because I am not sure what it means. It strikes me that if applicants are getting €10,000 non-contributory old age pension that the HSE could technically refuse them. Section 7C(4)(c) reads: ”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”. I do not know what that means either, it adds to the confusion.
This is the legislation that has moved from regulation to primary regulation to standardise the process and to give clarity to the whole health subvention scheme. When I was going through this last night I was more confused than ever on the question of people's entitlements.
The thresholds were set in 1993. The reason for this was to set an upper level in regard to the assets and income of subvention applicants. It is not the intention to exclude people. When we have a certain amount of money available naturally there has to be certain guidelines, which means that not everybody will qualify, regardless of what scheme is put in place. I know the point the Deputy is making. This Bill does not deal with the overall problem of long-term care but it will be dealt with in the very near future. We have had a Cabinet sub-committee examining that whole issue. It is a priority issue and has been discussed with the social partners. I appreciate the need to make major changes in that regard.
How stand amendments Nos. 14 and 15?
Given that they have to be clarified, I will resubmit them for Report Stage and give the Minister of State an opportunity to respond further.
Amendment, by leave, withdrawn.
Amendments Nos. 15 and 16.
Amendment No. 17 has been ruled out of order because it involves a potential charge on the Revenue but, according to the rules of the committee, the Deputy is allowed to discuss it. I ask the Deputy to be as brief as possible.
I will do my best. It is important that we have absolute clarity in regard to the sections we have discussed. We have discussed subsections (4) and (5) but subsection (6) makes it clear that it is the resources of the Health Service Executive that determine subvention, not an entitlement. It has nothing to do with eligibility and entitlement but the resources of the Health Service Executive. If for any reason the HSE deems it does not have the resources to pay enhanced subvention rates it can decide under this section that it does not have to pay it. That is the reason we need clarity on an appeals process and on whether one is entitled to it because this is resource dependent.
When replying to the Second Stage debate the Minister of State said an important point arose in regard to a serious issue that I have raised in regard to the 2001 legislation. It concerns people who are over the age of 70 and have a statutory entitlement under that legislation. Most of the other legislation in regard to subvention, whether the 1990 Act or the 1970 Health Act, gives discretion to the CEO of health boards, now the HSE. However, the 2001 legislation provides that people over the age of 70 have a statutory right to services. If that is true it means that if any person over the age of 70 made application to the HSE for, say, a nursing home bed in a public hospital and it was refused and he or she had to go into a private nursing home, there is a possibility — the excuse that the Minister of State and the Minister, Deputy Harney, use is that this has been before the courts — that the 2001 legislation is flawed.
However, we are under no obligation whatsoever to keep our mouths shut on deficiencies in legislation that could have substantial costs for the taxpayer in the future. That it happens to be before the courts is not criminal. It is before the courts because someone is taking a civil prosecution. If there is a possibility that the 2001 legislation is flawed it raises serious concerns on two levels, first, that we could end up paying another billion euro when the courts finally decide that what is being done is wrong and that the Minister should provide full resources to everybody over the age of 70, and should pay for their private nursing homes as well as their public nursing homes.
Second, if this turns out to be true there are serious issues under the equality legislation because there are two types of medical card for those over the age of 70. There are those who have a medical card on income grounds and those who have a medical card by reason of the fact that they are over 70 and their income is not taken into account. Most people do not pay much attention to this because the only people it affects are the doctors who are paid four times as much to look after one type of over-70s patient compared with the other. If the person over 70 has two different types of medical card that entitle him or her to two different types of services as in, say, nursing home charges, there could be serious issues in regard to equality because that could be a discriminatory practice when the court case goes through. This issue needs to be clarified and the fob-off that it is going through the courts should not be used. This matter goes back to the 2001 legislation.
The person who was Attorney General at that time now fancies himself as the reforming Minister for Justice, Equality and Law Reform and he should know something about it. He is in the same political party as the Minister for Health and Children. Perhaps they might sit down over lunch and discuss it. If not, the Minister of State is the Minister responsible, on the grounds of whether he is perpetuating a discrimination against people who are over the age of 70 and whether he is fully aware of the implications of paying back all this money. This will have implications for the health service in the future. When the €1 billion is paid under the illegal nursing home charges there will be cutbacks in the health budget.
As members of the Select Committee on Health and Children we should get absolute clarity from the Minister of State that he has looked into this issue to the degree that if these court cases are going through, those involved will withdraw their cases from the courts when they read what the Minister has to say. My greatest fear is that they might be right and the Minister of State might be wrong and that somewhere down the road there would be another scenario as we had with the then Minister, Deputy Martin, when he came before the committee and felt he had no responsibility whatsoever for what was going on in regard to nursing home charges. The best he could offer was that he had whispered into the Taoiseach's ear that there might be a problem. This is an issue on which I would like the Minister of State to come back to the committee with a clear answer. I will be pursuing it because I think there is a problem.
As the Deputy has indicated, the matter is subject to legal proceedings. Following the enactment of this Bill and in light of the deliberations of the working group on long-term care, a broad review will need to be undertaken of long-term care for older people for the future, both in residential and community settings. What we will try to achieve is an equitable and balanced scheme for residential and community care and for public and private provision in line with the principles outlined in the most recent social partnership agreement. I am aware of the difficulties. I listened to what the Deputy has said and I am aware of difficulties that can be created for families who fail to find a public bed. We are keen to achieve a much more equitable and balanced scheme. That is what we will work towards achieving.
Amendment No. 17 not moved.
Amendments Nos. 18 and 19 form a composite proposal and therefore they may be discussed together.
Before we deal with those amendments, will the Minister of State confirm if we will receive a comprehensive letter in response to this matter? As this is a civil and not criminal matter before the courts, there is no need for us to hide behind the excuse that it is a matter before the courts. The Minister of State can move forward with obtaining a legal opinion on the 2001 legislation and on the complications that may arise and provide us with that information so that we can be happy that there is no discrimination against people over the age of 70.
Irrespective of what letters I would give the Deputy, I am not sure they would make him happy in that respect.
The committee has been refused all legal opinion, including the Attorney General's views and a discussion with the Minister on this matter. We were being fobbed off on this issue on the basis that the matter——
This is the subject of legal proceedings before the courts.
——is before the courts. We do not have to wait for the courts to decide that what the Minister of State is doing is right or wrong.
I explained to the Deputy the work that is being done by a working group in this area.
I would not like to have to wait for it conclude its work. It has been formed for a year and has been considering reports that were published four years ago dating back to the health strategy of 2001. That shows the degree of priority this matter has been given.
When will that document be published?
A parliamentary question has been tabled on this matter today and it might be more appropriate to wait for the reply on it.
We should confine ourselves to the work in hand. We will move on to amendments Nos. 18 and 19, which form a composite proposal and may be discussed together.
I move amendment No. 18:
In page 11, line 7, to delete "and".
This is a technical amendment which can be included or withdrawn. I will withdraw it.
Amendment, by leave, withdrawn.
I move amendment No. 19:
In page 11, line 11, to delete "Executive," and substitute the following:
"Executive, and
(iii) except in exceptional circumstances, not sooner than 12 months after the commencement of the payment of a relevant subvention,".
This amendment proposes that there should be no review of the subvention except in extraordinary circumstances and not sooner than after a period of 12 months. On many occasions patients who are successful in their application for subvention payment find they have to jump through the hoops after a period of six months. Once a decision is made, it should apply for a period of 12 months, which would be a source of reassurance for the applicant. There are cases where people's applications are reviewed after a period of six months and there does not appear to be a dramatic change in outcomes of those reviews. I do not know if reviews within that timeframe are justifiable. By setting the review period at 12 months, the people concerned can rest assured they do not have to focus on this concern for at least another 12 months.
The HSE would have to be in a position to review the degree of dependency and the means of the dependent person at any time, as both his or her dependency and financial circumstances can change significantly at any time in a 12 month period or any lesser period of time. This provision represents no change from the position as laid out in the 1993 subvention regulations.
In a case where the rates are to be increased and a decision is made to increase them, that decision takes effect immediately, but in a case where the rates are to be reduced, that decision does not take effect until 60 days after notification. People's circumstances can change. We are dealing with scarce resources and it is important that they be diverted to those most in need of them.
I will withdraw the amendment because I believe the Minister of State will not accept it. The circumstances of patients in this category seldom change for the better.
The HSE does not routinely review such people's cases for no reason after less than 12 months, but it is important that it has the power to do so.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 12, between lines 6 and 7, to insert the following subsection:
"(5) (a) A person who is in receipt of a subvention and who is deemed by the Executive under subsection (2) either to be no longer qualified for the payment of a relevant subvention, or qualifies for the payment of a different relevant subvention than that currently being paid to the person, or a person acting on his or her behalf, may appeal, to an appeals officer designated by the Minister, on the grounds—
(i) of his or her means and circumstances,
(ii) that the review conducted under subsection (1) was inadequate, improper or incorrect, or
(iii) of any abatement of the maximum rate appropriate to that person's level of dependency, against the decision of the Executive under subsection (2).
(b) The designated appeals officer shall consider an appeal under paragraph (a) and shall inform the person making the appeal of his or her decision within 28 days of the receipt of the appeal.
(c) For the purpose of deciding the appeal, the designated appeals officer may request information from the Executive and from the person to whom the appeal refers or a person acting on his or her behalf.
(d) A decision of an appeals officer shall be final and conclusive.
(e) Where the Executive makes a determination under subsection (2), it shall inform the dependent person to whom a relevant subvention is paid, of his or her right to appeal the decision under this subsection.”.
I will withdraw this amendment but will resubmit it on Report Stage as it relates to the appeals process.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 12, lines 20 and 21, to delete all words from and including "a" in line 20 down to and including "Executive)" in line 21 and substitute "an independent person".
I ask the Minister of State to accept this amendment because if we are to have a proper appeal system, what he proposes in this regard is defective. He proposes that the body investigating or judging itself appoints the person to carry out an appeal and that person may be employed by that body. That lacks credibility in terms of public confidence. I ask the Minister of State to ensure that the person appointed is independent and to remove from the paragraph the phrase "(who may be an employee of the Executive)".
This amendment refers to a new section 7E(3) which allows for the HSE to appoint a person within the HSE or a person outside the HSE to consider an appeal. Any appeals officer is independent in carrying out an appeal and must act in accordance with the principles of natural justice, and any decision of an appeals officer may be judicially reviewed. Therefore, it is not proposed to accept this amendment.
The view expressed by the Minister of State is short-sighted. There is a difference between an independent person and a person employed by the body being assessed in regard to making such a decision. As for the idea that a decision by an appeals officer can be judicially reviewed, I ask the Minister of State on what planet is he living. Is he suggesting that people would take out a judicial review to vindicate their rights? That is an appalling idea.
The simple way to deal with this matter is to have an independent appeals system and to provide for only one of the two options provided, namely to appoint an independent person. How can people have confidence in such a system otherwise? I would not have confidence in an appeal system where an insider makes the decisions. It not because I believe such a person would act in a malicious way but because the person would be put in an impossible position. It would not be fair to the individual concerned or to the applicant appealing a decision. It would be a cosy little closed circle and people making an appeal would have no confidence that they would be given a fair hearing, rightly so.
The idea that they may bring such a decision to a judicial review is insulting. Our job is to make sure that there is an appeal system in place that is robust. A simple measure is required. It is simply a matter of deleting from the paragraph the phrase I mentioned to ensure that there is not a closed circle where a person on the inside may be put in an invidious position in trying to make judgments about people who are senior to that person.
I understand there may be some difficulty in getting people from outside the HSE to take on that role, but the legislation provides for the appointment of people outside of the HSE. We are not confining that role to people in the HSE.
With regard to the provision that a decision may be judicially reviewed, the section provides that the decision of the appeals officer is not the end of the road for the applicant. Such an option would probably be a last resort for many people and the bringing of such a decision to court is probably an option they would not want to contemplate. This provision is similar to the provision in many schemes under which there are appeals systems. If people are not happy with a decision under the system, they can appeal that decision in court. The existing appeals officers all work in the HSE and we are providing in the legislation for the appointment of people outside the HSE.
I have never heard of a situation where we would pass a law on the basis that we would provide for people to take a judicial review. Everybody has a right to go to court but that should not be seen as the means to deal with a particular situation when we can ensure that independent people can be appointed to these positions, which is important. The Government has opened up this matter and to be consistent the Minister of State should remove this role from the HSE and ensure that an independent person will examine appeals and make determinations on them. That involves simply removing from the paragraph the phrase "(who is an employee of the Executive)". I will raise this matter on Report Stage if necessary. This is a simple matter.
While the decision of an appeals officer might be the last resort for the applicant, if a decision is refused, there is another avenue open to the applicant. If the decision is not to his or her liking, he or she can appeal it. In the event that him or her are not happy with the decision made by the appeals officer, there are other avenues open to he or she in the courts.
We are talking about a group of people who, because of their income, qualify for subvention. They are not in a position to seek judicial review.
The Deputy should let me finish my point.
Frankly, the Taoiseach has had to borrow money to pay his legal bills. Is the Minister suggesting that people on low incomes and living in small houses are in a position to go the court route? That is extraordinary.
Perhaps the Deputy would allow the Minister of State to reply.
The Deputy seems to find many things extraordinary. I am simply pointing out that it is not the end of the road. As with many other schemes, we have a system whereby if people are not happy with the way they have been treated or how their application has been processed, they can resort to the court. Equally, the appeals officer dealing with an appeal would also be conscious of that that they might have to defend his or her decision in court at a later date.
How would they pay their legal fees? They would not have business people to pay them. We are talking about elderly people on low incomes living in small houses. If they have big houses, they do not get the subvention.
They are not in a position to go to court and pay legal fees. I will withdraw the amendment now and revisit it on Report Stage.
Does that mean we should shut off the opportunity of allowing them to take a case to court?
The Minister of State knows I am not saying that. I am saying we should get this right and defend their rights.
This is the Deputy's opportunity. If she can put forward a better proposal we will certainly consider it.
That is what I have done.
Amendment, by leave, withdrawn.
I move amendment No. 22:
In page 13, line 36, to delete "the Executive is satisfied" and substitute "it comes to the knowledge of the Executive".
I move amendment No. 1 to amendment No. 22:
In the inserted text, after "Executive" to insert "and the Executive is satisfied".
Amendment No. 22 makes it clear that it is not the executive that ultimately decides whether any subventions have been unlawfully paid. This is a matter for the courts. It is not proposed to accept the amendment to the amendment.
Amendment to amendment, by leave, withdrawn.
Amendment agreed to.
I move amendment No. 23:
In page 13, line 44, after "then" to insert the following:
"the Executive shall make a decision to that effect, and an appeal shall lie therefrom to a person appointed under section 7E, and in default of appeal, or in the event that the appeal is unsuccessful,".
This amendment is tabled on legal advice. Section 7G states that money is repayable to the executive when the executive is satisfied there has been an overpayment. This is slanted too much in favour of the executive. At a minimum there must be a formal decision which can be appealed pursuant to the appeals mechanism. The amendment provides that there should be a decision. The Minister might need to study the amendment. It is not a major change but it creates a situation where a decision is made by the HSE that can then be appealed.
This amendment refers to the new section 7G. This section is based on recent precedents and provides for the recovery by the HSE of subventions unlawfully obtained. There is no merit in allowing an appeal in the circumstances envisaged by the section. However, I will examine it again for Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 25 to 32, inclusive, are related to amendment No. 24, therefore, amendments Nos. 24 to 32, inclusive, may be discussed together.
I move amendment No. 24:
In page 14, line 6, to delete ", (3) and (4)" and substitute "and (3)".
Amendments Nos. 24 to 32, inclusive, are technical amendments arising as a result of including the rates of subvention in the Bill. Amendment No. 32 has the purpose of including the three rates of subvention and also provides for the rates of subvention to be increased by regulations. The rates are being included in the Bill for purposes of consistency. The subvention scheme contains a number of asset thresholds and percentages, such as the value of assets to be disregarded for the purposes of assessing an applicant's means and the percentages of spousal income to be assessed. These thresholds are specified in the Bill with the provision that the limits may be altered. For consistency purposes, the rates of subvention are now included.
Amendment agreed to.
I move amendment No. 25:
In page 14, to delete lines 14 to 16.
Amendment agreed to.
I move amendment No. 26:
In page 14, to delete line 17 and substitute the following:
"(d) an amount in respect of section”.
Amendment agreed to.
I move amendment No. 27:
In page 14, to delete line 19 and substitute the following:
"(e) an amount in respect of section”.
Amendment agreed to.
I move amendment No. 28:
In page 14, to delete line 21 and substitute the following:
"(f) an amount in respect of section”.
Amendment agreed to.
I move amendment No. 29:
In page 14, to delete line 23 and substitute the following:
"(g) an amount in respect of section”.
Amendment agreed to.
I move amendment No. 30:
In page 14, to delete lines 25 and 26 and substitute the following:
"(h) an amount in respect of section 7C(4)(c),
(i) an amount in respect of subsection (4)(a), (b) or (c).”.
Amendment agreed to.
I move amendment No. 31:
In page 14, line 33, to delete "(e), (f), (g), (h) or (i)“ and substitute ”(d), (e), (f), (g), (h) or (i)”.
Amendment agreed to.
I move amendment No. 32:
In page 14, to delete lines 37 to 47 and in page 15, to delete lines 1 to 27 and substitute the following:
"(4) Subject to subsection (6), the amounts of subvention that may be paid under section 7C(1)(a) to dependent persons are -
(a) in the case of such persons having a maximum degree of dependency (“category I”), a weekly rate of €190.50 or the prescribed amount, whichever is the greater,
(b) in the case of such persons having a high degree of dependency (“category II”), a weekly rate of €152.40 or the prescribed amount, whichever is the greater, and
(c) in the case of such persons having a medium degree of dependency (”category III“), a weekly rate of €114.30 or the prescribed amount, whichever is the greater.”.
Is there an opportunity to index link these figures or will they ever be subject to indexation? The figures for the three categories remain unchanged since 2001.
The Minister will have the power to increase the rates by regulation.
Is there any chance that might happen? Things have changed a great deal since 2001. I oppose the amendment because the rates should be index linked.
Amendment put and declared carried.
Amendment No. 33 has been ruled out of order because it involves a potential charge on the Exchequer.
This goes back to the problem we have been discussing all morning. The subvention is now resource dependent. This refers back to the problems we had with the health boards. Previously, where two health boards were located beside each other it was possible to get enhanced subvention more easily in one health board area than in another. This also relates to the issue of assessing this and how generic terms such as "the Dublin area" are used.
The Minister will not address the problem of one area providing higher enhanced subvention compared with another area unless there is some type of mapping process for the country. This would map out areas where average nursing home costs are similar. In other words, the country should be mapped to show what chance people have of getting enhanced subvention in each area. Otherwise the problem that existed with the health boards will continue except it will become more sporadic and there will be less clarity. In fact, it could be interpreted in any way.
I can give an example. If one lived in Youghal in the old Southern Health Board area, one might get enhanced subvention of €500 per week but if one lived 12 miles away in Dungarvan, one was in the South Eastern Health Board area. It had much tighter criteria as regards enhanced subvention, so one may only receive €250, even though the only thing that divided people was whether they lived in Cork or Waterford. As regards the prescribed amounts of enhanced subvention one can get, unless one has some plans to map the whole country to see what the average nursing home costs are, one will not add any clarity to this matter. One may take Dublin and say that average costs are €1,400 per week, whereas in Donegal they are down as far as €600 or €700 per week. In parts of the south east they may reach €800 or €900 per week. A mapping process is required in order to maintain a sense of clarity with regard to this legislation.
By giving the subvention scheme a firm grounding in primary legislation, rather than in the existing regulations, the Bill brings increased clarity to the scheme and leaves less room for interpretation from those administering the scheme. Ever since it was established as a national body, the HSE has been striving towards the implementation of a common framework process throughout the country for all schemes, including the subvention scheme. The Bill will contribute to that overall goal.
I hear what the Deputy is saying about the necessity for mapping. Currently, somewhere between 40% and 45% of such payments are enhanced subventions. I appreciate what the Deputy is saying, however.
Amendment No. 33 not moved.
I move amendment No. 34:
In page 16, to delete lines 16 to 18 and substitute the following:
"(6) Without prejudice to the generality of section 7C(1)(b) or 7D, the amount of the prescribed subvention that is respectively applicable to a dependent person falling within category I, category II or category III shall, by virtue of this subsection, be reduced by the amount by which such persons’ means, as determined in the assessment referred to in section 7B(3) made in respect of such person, exceeds the weekly rate of the old age (non-contributory) pension payable at the time of the assessment.”.
This section provides for a lesser amount than the maximum rates in the three rates of subvention as set out in the new section 7H(4) at amendment No. 32, depending on the outcome of the financial assessment. This is in accordance with the existing provisions in the nursing homes subvention regulations.
They have been paid less than these minimum figures which have been in existence since 2001. Under this new section, they will be given even less than what they would have received in 2001. That is my interpretation of it if they are assessed on what we have already discussed, which is a minimal income.
It is not something new that we are introducing in the Bill. It already is in place. It concerns cases where people would just qualify. I can check on it if the Deputy wishes and will give him the details. It is where they would not qualify for the maximum rate.
This is a legal matter. Someone has obviously read through the legislation and has realised that nothing had been inserted if one wanted to give even less than the 2001 figures. Prior to this subsection, there was nothing in the Bill whereby one could cut the basic subvention. When someone was reading through this, he or she saw that there was this problem. It is a pity that whoever came up with the subsection did not spend as much time on the sections we discussed, otherwise we might have had more clarity regarding that as well. That might be something for the Minister of State to take on board. Whoever submitted this subsection might re-examine the other sections before Report Stage.
It is where they qualify, but not for the maximum rate. It is not something new. This is something already in place in the regulations.
I appreciate that. It is quite obvious that somebody picked up the fact that a person could either get the full subvention as it stood. There was no opportunity to cut the basic subvention for them until this amendment was made. It would be nice if the same individual could go back and bring some clarity to section 7 before Report Stage.
Amendment agreed to.
Section 3, as amended, agreed to.
Amendment No. 35 not moved.
Section 4 agreed to.
Amendment No. 36 not moved.
Section 5 agreed to.
Amendment No. 37 not moved.
Section 6 agreed to.
Sections 7 and 8 agreed to.
SECTION 9.
Amendments Nos. 38, 39 and 41 are related and may be discussed together.
I move amendment No. 38:
In page 17, line 33, after "The" to insert the following:
"Health (In-Patient Services) Regulations 1993 (S.I. No. 224 of 1993) and the".
The amendment to the Title arises as a result of the replication of the Health (In-Patient Services) Regulations 1993 and the addition of section 10 of the Bill, which is correcting a cross reference in the Health (Repayments Scheme) Act 2006. The amendment is for the purpose of revoking the Health (In-Patient Services) Regulations, which I have been advised are no longer necessary following the enactment of the Bill.
Amendment No. 39 is for the purpose of correcting the cross reference in the Social Welfare (Consolidation) Act and the definition of "spouse" in the Health (Repayment Scheme) Act 2006, with a corollary amendment to the extant section 10, as we discussed briefly yesterday.
Amendment agreed to.
Section 9, as amended, agreed to.
NEW SECTION.
I move amendment No. 39:
In page 17, before section 10, to insert the following new section:
10.--Section 2 of the Health (Repayment Scheme) Act 2006 is amended, in the definition of "spouse", by substituting "section 3(10)" for "section 3(10)(c)“.”.
Amendment agreed to.
SECTION 10.
I move amendment No. 40:
In page 18, subsection (3), line 1, after "Act" to insert "(except section 10)".
This is to give legal effect to a new section 10 immediately following the enactment of the Bill.
Amendment agreed to.
Section 10, as amended, agreed to.
TITLE.
I move amendment No. 41:
In page 3, to delete lines 9 and 10 and substitute the following:
"2004, REVOKE THE HEALTH (IN-PATIENT SERVICES) REGULATIONS 1993AND THE NURSING HOMES (SUBVENTION) REGULATIONS 1993 AND AMEND SECTION 2 OF THE HEALTH (REPAYMENT SCHEME) ACT 2006.".
Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.
Before concluding, Chairman, I would ask that all queries that have been raised here should be dealt with on Report Stage. Sometimes when legislation reaches Report Stage a guillotine may apply or the Ceann Comhairle may try to stop some of the questions that were raised here from being answered. I ask the Minister of State to ensure that any questions that were raised on Committee Stage will be clarified on or before Report and Final Stages.
There was a lovely line once upon a time which stated "There will be time for vision and revision". We will do our best to facilitate the Deputy's request.
I take this opportunity to thank the Minister of State and his officials for having attended today's meeting. I also like thank the members of the select committee for their constructive contributions to the Bill and facilitating its consideration.
