Serious concerns have been expressed in respect of the proposal in Part 2 regarding the financial assessment of an applicant's means. The Bill states that such an assessment shall be made on the basis of his or her property. However, a number of means are excluded. For example, in respect of a spouse, a child of the applicant in full-time education or a relative of the applicant in receipt of disability allowance, 5% of the family home will not be calculated, and rightly so. However, this will also be the case in respect of a relative of an applicant who is in receipt of a contributory old age pension, which is his or her sole income.
I put to the Minister of State the case of two elderly people aged 78 and 77, respectively, the former of whom enters a nursing home, while the latter is in receipt of a contributory pension and a small retirement pension. According to the criteria, the value of the latter's house will be calculated in respect of the nursing home subvention for the former and will seriously reduce or perhaps eliminate it, depending on the value of the house. This will force the 78 year old on a contributory old age pension and a small occupational pension to sell his or her house. There will be similar cases where people will have small amounts of income that will exclude them from the provisions in this section. In other words, their houses will become eligible to be included in the calculations relating to the subvention.
The Minister for Health and Children stated that this was introduced in 1993. It was introduced as a regulation, with discretion given to the then relevant health board area, now the Health Service Executive, to consider all factors in respect of its application. The Bill removes that discretion because section 7B(3) states: "Subject to subsection (4), the financial assessment of an applicant's means shall be made". It does not state that the assessment "may be made" or that it will be done at the discretion of the Health Service Executive, it states that it "shall be made". Regardless of the circumstances, those making calculations in respect of the nursing home subvention will have no discretion to take into account special circumstances such as those relating to the 78 year old to whom I refer. We may be discussing an occupational pension of €5. However, it will be above the level of the contributory old age pension. The Minister of State should seriously consider allowing discretion in all circumstances when calculating means. He has allowed a level of discretion regarding medical cards, since special circumstances may be taken into account. The Government promised 200,000 extra full medical cards in the last budget. While we are often disappointed at the application and level of the means test for such cards, we recognise that a means test must be applied. Discretion exists when calculating entitlement to a medical card, and we see occasions where it works well.
I can recall situations where elderly and very ill people, perhaps only weeks or months from death, have been extremely concerned at their condition's cost to their family. Making representations on behalf of his constituents, the Minister of State will have witnessed the relief of the terminally ill and their families because of something as simple as allocating a medical card. Doing so in the context of terminal illness, where the person will die within weeks or months, costs very little. I have seen people with advanced cancer who have received a medical card, expressing their appreciation that the HSE had recognised their fate by saying to them that it would assist them somehow. Apart from the financial aspect, it was a psychological boost. I was often amazed at the degree to which this was so, since the patients were in critical circumstances.
I do not see why the same criteria should not be applied to means tests. The HSE would have discretion, and I am not arguing that it should not in certain circumstances exclude the relative of an applicant receiving a disability or similar allowance who has other income. Rather I am arguing that the HSE should be allowed discretion. The provision has deeply worrying implications for the elderly, whose houses have often soared in value since being bought or inherited. Certain such houses will have been in families for generations, with their value increasing over time. The asset is no good to the elderly person, since it is his or her home that will never be sold.
I have witnessed local authorities allowing houses to remain unoccupied after people were sent to long-stay hospitals, since they knew of the psychological effect that taking the house, which might have been in the family for two or three generations, would have. No matter how ill or elderly someone is, he or she always wishes to return home, where his or her father or mother may have lived. Now, when 5% of the value of the home is assessed as income and included with the old-age pension, it might put many applicants above the threshold to qualify for nursing home subvention.
The Bill copper-fastens the 1993 regulations in the form of primary legislation, but one must remember that those regulations were treated differently in each former health board area, with final decisions entirely discretionary. On Leaders' Questions, the Taoiseach stated the HSE could use its discretion in situations where an elderly person might be forced to sell his or her home. Having read the legislation and spoken to lawyers in that regard, I am advised that contention is incorrect, since "shall" means they must act as the legislation outlines. They do not have a choice and would breach the Bill, once enacted, if they acted otherwise, meaning they could be held accountable to their masters. They would breach an Act of the Oireachtas that states how the proposal "shall" be applied, without discretion.
The Taoiseach's statement does not constitute a guarantee and provides little assurance to those who might find themselves above the income threshold, even if the income in question is purely notional and not of any value in day-to-day terms. The grim reality is that this legislation will force some elderly people to sell their homes. I am extremely disappointed at the underhand way in which the Government is trying to push through this provision, and we seek a full debate on funding care for the elderly, in which context the issue should be discussed.
Those most affected by the proposal must be given a chance to express their views, and we must ensure no one is caused hardship or refused a subvention to which he or she should be entitled. The Government's record on the elderly is nothing short of scandalous. From illegal nursing home charges, to Leas Cross, to the shameful absence of an independent social services inspectorate, to the subvention restrictions, it seems the Government is content to preside over the neglect of a vulnerable sector of society.
Psychiatric patients in long-term stay hospitals are excluded from the refund of illegal nursing home charges. Those institutionalised for many years, and now treated in homes with full nursing care but under the same treatment regime as in a psychiatric hospital, will not be refunded nursing home charges in the same way as those who did not avail themselves of, or were not determined to move to, long-stay psychiatric nursing homes. Does the Minister of State feel it discriminates against patients who may have received 20 or even 40 years of treatment in psychiatric hospitals before moving to a psychiatric nursing home, sometimes referred to as a high-dependency hostel, with 24-hour nursing care and full psychiatric treatment?
The Minister of State's colleague, Deputy Tim O'Malley, or perhaps his superior, the Minister for Health and Children, Deputy Harney, should revisit the situation. It is disappointing that circumstances outside our control connected with the budget make this week so difficult, meaning we will be denied the usual opportunities to raise the matter. I plead with the Minister of State to bring our concerns in this regard to the attention of the Minister, Deputy Harney, and Deputy Tim O'Malley, the Minister of State with responsibility for psychiatric services. It denies such patients the same treatment as those in the old psychiatric hospitals, which Planning for the Future in 1985 proposed to close by now, with appropriate care for all.
We look forward to a response to our submissions on calculating means for nursing home subventions.