Up until 2004, people who were provided with publicly-funded long-stay care in public facilities and in publicly contracted beds paid a contribution towards the cost of their maintenance through a charge raised under Regulations made in 1954 and 1976.
It was accepted in 2004 that there was a flawed legal basis for raising charges on those with full eligibility in publicly funded care. This was regularised by the introduction of legislation in 2005 to provide for charges in publicly funded care and the establishment of a statutory repayment scheme, under the Health (Repayment Scheme) Act 2006, to repay specified pre-2005 charges for in-patient services imposed on certain persons with full medical card eligibility in public long stay facilities, including public nursing homes.
The scope of the Scheme was well publicised at the time and was limited to those who had full eligibility under the 1970 Act and who had paid charges to the State as a contribution towards their publicly-funded care. The Scheme closed to new applications on 31 December 2007 in accordance with the provisions of the Act. The HSE processed almost 35,500 claims under the Scheme and issued repayments of approximately €453 million to over 20,300 claimants.
It is a matter of public record that legal cases have been taken against the State seeking the repayment of private nursing homes fees in cases where people had full eligibility under the 1970 Act. Fees paid to private nursing homes were not statutory charges levied under Regulation and were therefore not deemed recoverable charges under the Health Repayment Scheme. This was well publicised and debated at the time. Legal cases have been managed by the Department on a case-by-case basis in close consultation with the Office of the Attorney General. The consistent position has been that it was not the policy intent of Government at that time for public monies to be used in this way, and that eligibility under the 1970 Act was and continues to be subject to the availability of resources.
Upon the raising of issues earlier this year about how the State had approached legal challenges taken against it in relation to pre-2005 legacy nursing home charges, the Government moved quickly to establish the facts surrounding these issues, which go back many decades, by requesting the Attorney General to prepare a Report on the litigation management strategy. This comprehensive Report was published on 7 February 2023.
The Government agreed that I and the Minister for Social Protection would consider the Report further and revert to the Government on any further steps required. This consideration is ongoing.
