The NHSS, commonly referred to as 'Fair Deal', is a system of financial support for people who require long-term residential care. The primary legislation underpinning the NHSS is the Nursing Home Support Scheme Act 2009. Participants in the NHSS contribute to the cost of their care according to their means while the State pays the balance of the cost. The Scheme aims to ensure that long-term nursing home care is accessible and affordable for everyone and that people are cared for in the most appropriate settings.
It is recognised that the Act, in its current form, did not place caps on the financial assessment of family owned and operated farms or businesses when calculating the means to pay for nursing home care. This places a potentially onerous burden on family successors and could challenge the future viability of these productive assets.
Therefore, the Department of Health proposed a policy change to the Scheme, to cap contributions based on farm and business assets at three years where a family successor commits to working the productive asset. The stated policy objective of the legislation is to introduce additional safeguards in the Scheme to further protect the viability and sustainability of family farms and businesses that will be passed down to the next generation of the family. These changes were mad through the Nursing Homes Support Scheme (Amendment) Bill, which was signed into law by the President 22 July 2021 and will come into effect 90 days later, on the 20 October 2021.
The principal amendment introduced under the Act extended the three-year cap on contributions based on farm and business assets at three years where an appointed family successor commits to working the productive asset for a period of 6 years. To be considered for the 3-year cap, the legislation requires that an asset owned by an applicant for the Scheme or recently transferred to a family member is a productive family asset that has been actively worked by a family member for a significant period of time in advance of the person entering care.
For the purposes of calculating the three-year period after which contributions will be capped under the amendment, time already spent in care when the amendment comes into force will be taken into account. This means that a person who entered nursing home care three or more years ago should be able to benefit from the relief under the amendment when it comes into force, provided they can meet the other conditions.
However, the amendment does not provide for any retrospective relief or refunds on contributions to care made before the amendment comes into operation. Retrospective application of the proposed legislative changes would create a challenging precedent, involving high legal and administrative costs and risks, in attempting to apply retrospectively a complex set of conditions. It would also introduce a degree of inequity where conditions would be imposed in the past, with only some people in a position to satisfy those – as then unknown – conditions.
The HSE Nursing Home Support Scheme Office has been involved throughout the development of the legislation as the responsible operational body. Appropriate training and updated guidance is being provided to staff involved in administering the scheme, and necessary changes to IT systems are being implemented.
