Section 2 deals with the commencement date. Is it in order for the Minister to give the committee an idea of what the commencement date will be? A sum of money was set aside this year to allow the fair deal come into operation. Many are asking members when the Bill is likely to commence.
Nursing Homes Support Scheme Bill 2008: Committee Stage.
Section 1 agreed to.
SECTION 2.
Question proposed: "That section 2 stand part of the Bill."
I am working towards a commencement date in September. Once the legislation is passed the National Treatment Purchase Fund estimates that it will take it in the region of three to four months to complete procurement. It does not have the power to do so in advance of the passing of the legislation. That being the case, if the Bill becomes law in April, it will take the fund three to four months to complete procurement. Being realistic, the intention is that the commencement date for the scheme will be in September. The sum of money provided is not for a full year.
Is the Minister satisfied there is a sum of money that has been ring-fenced to allow the scheme to commence in September?
There certainly is and it is my intention that it will remain ring-fenced. A new budget will be announced on 7 April, but for many reasons related to the affordability of long-term care and equity between public and private health care, I strongly believe we must maintain that funding because we have an inequitable and unfair system.
Question put and agreed to.
SECTION 3.
I move amendment No. 1:
In page 5, subsection (1), line 32, to delete "support" and substitute "loan".
This amendment concerns the language used in the Bill which refers to grants and loans as support. Ancillary State support is a loan, given that it must be paid back. I suggest, therefore, that it should be called a loan.
It is clear what ancillary State support is. It has been promoted and I do not believe there is any confusion about it. I do not see the necessity of changing the language used in the legislation.
As we have a long day ahead of us, I will not press the amendment.
Amendment, by leave, withdrawn.
Amendment No. 2 in the name of Deputy O'Sullivan has been ruled out of order because it involves a potential charge on the Exchequer.
Amendment No. 2 not moved.
Question proposed: "That section 3 stand part of the Bill."
I wish to speak to the section, as my amendment has been ruled out of order. In my amendment I sought to specify the services that would be available to elderly people in nursing homes in order to have clarified if services such as chiropody, physiotherapy and other care services would form part of the package of services they would receive without having to pay extra for them. That was the purpose of my amendment. Such a provision may well involve a charge on the Exchequer and that is the reason my amendment was ruled out of order. I do not know if the Minister can comment on it. There is widespread concern that one may have to pay for physiotherapy, chiropody or other services, in addition to the cost of nursing home care.
We are working on the long overdue eligibility legislation in the Department. Recommendations are due to go before the Cabinet sub-committee on health shortly. There is considerable confusion about what people are entitled to receive and what they are eligible for. In the context of therapy services, whether it be physiotherapy, occupational therapy, speech therapy, community based services or primary care, we need to bring greater clarity to the range of services available. That is where we should deal with the matter. If we were to be prescriptive in this legislation, we would effectively divert some of the community based services, which I accept are still inadequate and in respect of which we still have a long way to go, to the nursing home sector. It is not the intention in this legislation to do this.
Question put and agreed to.
SECTION 4.
Amendment No. 3 in the name of Deputy Reilly has been ruled out of order because it involves a potential charge on the Exchequer.
Amendment 3 not moved.
Question proposed: "That section 4 stand part of the Bill."
This is a serious issue. The section reads: "...two persons of the same sex who are cohabiting in domestic circumstances comparable to that of a man and women who are not married to each other but are cohabiting as husband and wife...". That provision takes no account of the circumstances of persons who have been living together as brother and sister, brothers and sister or sisters and brother all their lives; they are to be treated differently. This is a key part of the Bill that needs to be addressed. I am disappointed that my amendment has been ruled out of order on the basis that it involves a potential charge on the Exchequer. If the issue is not addressed, I will have grave difficulty in supporting the Bill.
The more appropriate place to deal with the matter is in the section dealing with connected persons in the context of where a house is the primary residence of, for example, two siblings. Accepting the amendment to this section would have widespread implications for tax law, social welfare law and many other State supports. Therefore, I am not in a position to accept it, but we can have a meaningful discussion on the issue the Deputy is seeking to raise when we come to the section dealing with connected persons. Where, for example, a brother and sister are living together and their home is their primary residence, it is not my intention that, in the event of one them dying, the other will not be able to defer the charge on the house. I intend to deal with this issue by way of an amendment to the section dealing with connected persons.
As the Chairman has ruled my amendment out of order, I am glad the Minister has indicated she will try to address its substance elsewhere in the legislation.
Question put and agreed to.
A vote has been called in the Dáil. We will suspend the sitting for the duration of the vote and resume immediately afterwards.
Sitting suspended at 10.45 a.m. and resumed at 11.05 a.m.
NEW SECTION.
I move amendment No. 4:
In page 11, before section 5, but in Part 2, to insert the following new section:
5.—The scheme provided by this Act shall be subject to the principle that the applicant and where relevant his or her family can choose the nursing home that most suits their needs, and any applicant who is entitled to benefit from the scheme shall be informed of the details of all nursing homes from which to choose care.".
The purpose of the amendment is to provide that a person can choose a nursing home of his or her choice. What I am trying to achieve is obvious. People might wish to choose a nursing home that they know or that is near their home or their relatives and which they consider to be appropriate to their needs. Will the Minister clarify the role of the NTPF in this regard? To what extent does it control the nursing homes to which an applicant has access?
Clearly, the amendment is in keeping with the principle of the Bill. I am happy to accept it, if I can deal with it on Report Stage. Clearly, we are anxious to ensure individuals and their families have a choice. However, to avail of the fair deal the nursing home must meet the draft standards we launched earlier this week. The regulations to put them into effect will be made in the next month. Second, the nursing home must be on the list approved by the National Treatment Purchase Fund in terms of procurement. Subject to this, the amendment is in keeping with the principle of the Bill and I will come back to it on Report Stage.
Amendment, by leave, withdrawn.
SECTION 5.
I move amendment No. 5:
In page 11, subsection (2), lines 32 and 33, to delete "the provision of financial support and services" and substitute the following:
"the provision of financial support in respect of care services".
This is a technical amendment which addresses a fundamental principle of the scheme, namely, that the nursing home support scheme established under section 5 is a scheme of financial support only.
Amendment agreed to.
I move amendment No. 6:
In page 11, after line 43, to insert the following subsection:
"(5) It is a function of the Executive to assess the adequacy of resources provided under subsection (4) and to report thereon to the Houses of the Oireachtas.”.
This amendment relates to the provision of resources. I have serious concerns about this section because it caps the resources available for the scheme. There is widespread concern among a variety of organisations about this. Obviously, if I were to table an amendment that would prevent the capping of resources, it would be declared out of order because it would involve a charge on the Exchequer. In the amendment I am seeking to make it a function of the Health Service Executive to assess the adequacy of the resources provided and report on the matter to the Houses of the Oireachtas. It should be able to state it has a certain number of applicants but that there is not enough money available. The applicants are entitled to avail of the scheme, as they fulfil the necessary criteria, both in terms of income and medical need, but if the money allocated is spent half way through the year, they will be unable to access it because money will not be available. This is a fundamental issue for all the organisations concerned, particularly in the current economic climate.
I seek an assurance from the Minister that there will not be waiting lists of applicants, as happens with the local authority schemes to adapt houses to meet people's needs. Those who qualify for the scheme might have to wait three years to get what they need. Before then an applicant might have to go into an acute hospital because they cannot secure an adaptation to their house that would allow them to stay at home. I wish to ensure the same will not happen under this scheme. Later in the Bill there is a provision, whereby if one is in an acute hospital for 20 days and ready for discharge, one again becomes subject to this legislation. There is a fear that people will be placed in a situation where although they qualify for funding under the scheme, they will not be able to avail of it because the money will have been spent.
There are two issues involved — one is the cap and the other is the requirement on the HSE to report. There are requirements on the HSE to report to the Oireachtas on its service plan and so forth. I will not be prescriptive and say it must report on this, that and the other, although I have the power to do so under section 37 of the Health Act. Second, the scheme is resource capped. There are not unlimited resources available. The scheme is based on eligibility rather than entitlement. As I said, the wider issue of entitlement and eligibility must be dealt with comprehensively in legislation which I hope will be ready shortly. Provisions relating to it will be discussed by the Cabinet sub-committee shortly. It is long overdue major legislation to bring clarity to what people are entitled to expect in the health service. That is not laid down clearly in legislation. Unfortunately, therefore, I cannot accept the amendment.
I will press it. This is one of the most crucial aspects of the Bill. There is a real possibility that persons who qualify for the scheme will not be able to avail of it because the money will have run out. Does the Minister have any suggestions as to what will happen when the money runs out and somebody needs nursing home care?
The State is providing an amount of money by way of a loan up front. When my excellent officials did the calculations, we estimated that the money that would be provided this year would be sufficient to meet current demands. Obviously, that will change over time, given the demographics. However, the same situation arises. When the subvention scheme to support people in private nursing homes was introduced in the 1990s by one of the Deputy's colleagues, the then Minister for Health, money was not unlimited either. We do not have a situation — I know of no country in such a position — where resources are unlimited for either long-term or acute care services.
I am pressing the amendment. I realise that resources cannot be unlimited but there must be some safeguard to ensure the matter is brought to public attention when resources are not adequate. Some mechanism can then be put in place to ensure adequate resources are made available.
I support Deputy O'Sullivan. There is serious concern that people who will be assessed as eligible and with high dependency will see the threshold raised according to the funds available and that people who are seriously in need of nursing home care will not be able to avail of it under the scheme. While I fully understand the possible cost to the Exchequer and so forth, there must be some mechanism such as that encapsulated in the amendment to allow the Oireachtas to make a decision on the matter as things change.
Our demography is changing and, with an increasingly aging population, there is every possibility that these funds will have to be increased. There does not seem to be any input or safeguard available to people from the Oireachtas. It will be left specifically to the HSE to decide and determine, depending on its budget. I will try to keep this as friendly as I can, but the reality is that in the past the HSE saw fit not to spend money in areas that the Oireachtas voted for. The HSE used the loophole of delaying payment and therefore the money was left over and could be used for something else. We really do need to have some democratic input to ensure that the appropriate funds are available to people for their care in later years.
Amendment put.
The Committee divided: Tá, 5; Níl, 8.
Tá
- Connaughton, Paul.
- Neville, Dan.
- O’Sullivan, Jan.
- Reilly, James.
- Sherlock, Seán.
Níl
- Alyward, Bobby.
- Blaney, Niall.
- Conlon, Margaret.
- Flynn, Beverley.
- Harney, Mary.
- O’Connor, Charlie.
- Ó Fearghaíl, Seán.
- O’Hanlon, Rory.
Amendment declared lost.
Section 5, as amended, agreed to.
Section 6 agreed to.
SECTION 7.
Amendments Nos. 7, 8, 10, 11, 14, 15 and 16 will be taken together by agreement.
I move amendment No. 7:
In page 12, subsection (4), line 34, after "possible" to insert "and in any event within two months".
In amendment No. 7, I seek to provide for a deadline so that there is a timeframe within which the needs assessment should be carried out. The amendment is self-explanatory.
I have a number of other amendments in this group. Amendment No. 10, on the care needs assessment, substitutes a wording for "as it thinks appropriate". There is much concern about where the bar will be set in terms of a person's care needs. In other words, must a person be high dependency or can he or she be medium to high dependency? Many people in nursing homes would not be classified as high dependency and there is a major concern that people will not qualify for this scheme because of their dependency level.
In amendment No. 10, I seek to insert "based on whether there is a reasonable possibility that the person would not, but for the provision by or on behalf of the Executive of care services, be able satisfactorily to care for himself or herself or to have satisfactory care services provided otherwise,". This aims to ensure that a person who needs care which cannot be given at home can qualify for the scheme.
In all of section 7, which deals with care needs assessments, there is a need for clarity about who can and who cannot qualify. We need to take the human element of this into account. There are people who simply cannot look after themselves at home because they do not have the requisite level of family support and for whom the HSE cannot provide the level of community support because, for example, the home care packages in the area are used up. In those circumstances, people should be able to qualify under the care needs assessment.
This is an important amendment. I want to bring the attention of the Minister to a number of categories of person who could very well be left out of this system unless action is taken to address the problem. No doubt the Minister will be fully aware of some of these categories.
There are many people, especially in rural Ireland, who live on their own and in bad conditions. For one reason or another, they have been left on their own in very poor conditions since their parents died. One could argue as they get older that they might have a psychological problem as well. They may or may not have some mental illness. As they say in the country, they keep to themselves, in other words, they do not particularly want anybody to help them. From my long experience as a TD, I can think of ten or 12 such people in my constituency. When this legislation is passed there will not be any place for them to go when they get older. It is a serious matter.
This amendment seeks to include this category of people. With the subvention and their pension, up until recently they would have been able to qualify for a private nursing home. When the subvention, as currently constituted, is added to their non-contributory pension, they would not qualify now because the bar is too high.
I am not qualified to speak about the medical care assessment side of the matter. All I know is that people in the category of which I speak are certainly not able to manage on their own. They need help. When they get old the more meaningful place for them to be would be in a nursing home.
This legislation, if implemented the way I read it, could mean that such persons would be excluded because of the medical assessment and I ask the Minister to take serious note of that particular category of person.
Many of the amendments in the group are mine and I ask the Chairman to bear with me. Amendment No. 8 seeks, in page 12, after "possible," to insert "not to exceed a period of six weeks". It is key that people are not left hanging indefinitely for assessments. There must be some definitive period of time and six weeks is not an unreasonable period, particularly if people will be subjected to a charge if they remain in a hospital bed when their acute medical phase is over and they have been discharged officially by the hospital.
Amendment No. 9 seeks, in page 12, to delete all words from and including "person" in line 38 down to and including "assessment." in line 41 and substitute the following: "representative of the Health Information and Quality Authority". It should not be a representative of the HSE, which has a vested interest, but an outside independent agency such as HIQA, which is a Government agency and with which the Minister should not have an issue.
Amendment No. 12, in page 13, subsection (9), line 34, to delete "15" and substitute "5" working days, seeks to provide a little more certainty and a more reasonable time span in terms of how long people must wait.
Amendment No. 14 seeks, in page 14, between lines 13 and 14, to insert the following subsection:
(13) The content of a care needs assessment report shall be provided to a nursing home in advance of the subject residing in and receiving care from said nursing home.
It is only common sense to ensure that the nursing home knows that it is in a position to meet the care requirements of the individual who is being sent to it and I hope the Minister will not have a difficulty with that one.
Amendment No. 16 seeks, between lines 30 and 31, to insert the following subsection:
(15) In respect of any application for a care needs assessment, the Executive shall provide such administrative assistance as may be required to enable the person, or his or her representative, to satisfactorily complete the application.
This refers to Deputy Connaughton's point on people's ability to deal with red tape and to ensure that the scheme operates in such a way as to help people who are isolated, who may not be literate and who have other issues, social and otherwise, with which to contend.
There is a technical amendment in my name on persons who are wards of court.
Generally, 28% of those in long-term care in Ireland have very low levels or medium levels of dependency and in normal circumstances should not be in care and should be supported in the community. Home care packages and community supports are only of recent origin. They came into effect in the past four or so years. We are, I suppose, playing catch up in an effort to get to the level where we would have sufficient supports to allow people to remain at home and in their own communities, which is the preferred option for the vast majority of people and for their families. International research shows that where somebody can remain at home he or she has a higher quality of life.
The assessment of need, which will be done by a multidisciplinary team of medics, social worker, geriatrician and general practitioner, is not an administrative process. It is a medical process. Notwithstanding that somebody may not be of high dependency, in section 7, among the matters that must be taken into account, is the capacity of a person to remain at home. There may be social factors and isolation factors. Account is taken of the family and community support available to the person. The provisions in section 7 are very far-reaching and allow for the situation about which Deputy Connaughton is concerned.
Deputy Connaughton knows Ballinasloe well. In the mid-1970s there were 2,500 people in St. Brigid's Hospital. Thankfully, that is down to approximately 200, which represents major progress over the past 30 years. Recently, in a different part of the country I visited a community service whose clients were bachelors living in rural areas. One of the professionals said ten years ago they would have been in care but, because of the service provided by her and her colleagues five days a week, the men can live at home. All supports must be provided on the basis that long-term care is the last resort. While they are based on medical dependency, there is an out through circumstances that cannot be envisaged such as isolation in rural areas where it is impossible to provide the supports that allow people to live at home because it may not be practical to do so.
With regard to the HSE providing administrative assistance, people will be assisted by social workers, nurses, GPs and other medical professionals, their own families, care representatives and so on but the Attorney General's office has advised that to prescribe the HSE to provide administrative support would mean it facing a conflict of interest and, therefore, it should not be prescribed in law. I went through all the amendments with a view to accepting as many as I could. A number are good and I will accept them.
Deputy O'Sullivan suggested a determination should be arrived at within two months. I would like to reflect on that before Report Stage. I am minded to accept the amendment, although I am advised that when the legislation is introduced, there will be a significant backlog of applications and it might not be practical to provide for this. If the Deputy agrees, I will come back on Report Stage having reflected on the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 12, subsection (4), line 34, after "possible," to insert "not to exceed a period of six weeks".
A definitive time is needed.
The Deputy's amendment is similar to Deputy O'Sullivan's. There is a two-week difference. I said I would reflect on the amendments and come back on Report Stage. The main problem is the significant number of applications that will be made when the scheme begins. If I can provide flexibility to implement the timeframe proposed, I would be happy to examine it.
That is fine.
Amendment, by leave, withdrawn.
Amendments Nos. 23, 25, 26, 86, 87, 93, 94 and 103 are related to amendment No. 9 and all may be discussed together.
I move amendment No. 9:
In page 12, subsection (5), lines 38 to 41, to delete all words from and including "person" in line 38 down to and including "assessment." in line 41 and substitute the following:
"representative of the Health Information and Quality Authority.".
I erroneously alluded to this group of amendments earlier. What is the position with amendments Nos. 12 and 14, which I thought were part of this group?
We will reach those shortly.
I am trying to achieve independence in the assessment with no HSE involvement. HIQA is an independent body and it could be relied on in this area. I hope the Minister will not have an issue with that.
I tabled amendment No. 93, which relates to the appeals system. The Minister should appoint those who carry out the appeal rather than the HSE. In other words, the executive should not carry out appeals on its own behalf where it is directly involved. The appeals should be independent and those involved should be appointed by the Minister
I assume it is intended that the appeals procedure will be similar to that used for medical card assessments. Will it be carried out by HSE staff?
Yes, different staff will be involved.
But it is the same principle. Why is it not possible to provide for an independent person to do the appeal for something this important? What is so difficult about that?
I would like to draw an analogy relating to the UK. Where a health authority does not have the services required by a person with autism under an individualised education plan, it is obliged to provide it through another local health authority. That happens but clearly there is a cost implication for the authority concerned and an odd scenario evolved over the years. It is well known the incidence of autism is the same throughout the world, including America, India, China, Australia and Ireland, yet in Britain, the incidence in a number of health authority areas was extraordinarily low. The deep suspicion was there was a conflict of interest. The authorities assessed the children, made the diagnosis but because they were fully aware of the cost involved, the level of diagnosis dropped. That is what we are trying to guard against here and we want to ensure an independent assessment is carried out. HIQA should carry them out. People would be greatly reassured if they were assessed on the basis of need as opposed to availability of funds.
The assessment will be carried out by health care professionals. HIQA sets standards and, for the purposes of this legislation, it will have the inspectorate role. The authority will set, enforce and monitor standards. None of its health professionals works on assessments. We must get away from the notion that we must duplicate everything by appointing another body. In other countries, residential care of the elderly is provided by local authorities. For example, in Sweden, if the local authority does not provide long-term care when one's acute phase is over, it is fined. The authority, therefore, has a financial incentive to make sure it provides the long-term care quickly. I discovered two years ago when I visited that the fine is substantial.
However, that is a completely different system. The assessment will be carried out in Ireland by geriatricians, GPs, nurses, social workers and therapists and they will make the decision. If somebody is not happy, that can be appealed and different people can be used to make the care assessment. However, the notion of moving the assessment from the HSE, which is the provider, to a body whose role is completely different, would involve great expense as well as duplicating the work involved. The authority is a centralised organisation whereas the HSE is decentralised. For example, an elderly person from Cork will be assessed by professionals in Cork and so on. That is the way it should be because we want care provided as close to home as possible.
HIQA is an entirely centralised organisation and, other than staff based in Cork, it does not have decentralised professional staff working for it. Even if I were to accept the amendment, it would lead to significant duplication, confusion and expense and it is unnecessary because the health care professionals who carry out these assessments must be trusted. We have no reason to distrust them on the assessment they will make.
As in law, justice must be seen to be done as well as be done. Independence in this area is crucial. If teams of assessors are employed by the HSE regionally, why not pass the ownership of the teams and their budgets to HIQA? That is not a huge job and it would be simple to do. The Minister alluded to the fact that people in Cork, for instance, would want to be assessed by the HSE in Cork, as is only right and proper, because we want people be treated as near to home as possible. We all subscribe to the provision of treatment as near to home as possible but the assessment requires independence and objectivity outside the fiscal requirements of the HSE. I am concerned about this and feel strongly assessments must be independent. It is not a question of having a different team but to whom the team answers and who employs it. We all know that he who pays the piper calls the tune.
Another aspect concerns appeals. I have noticed, particularly in the Department of Social and Family Affairs with regard to oral appeals, that the appeals officer has no connection with staff on the ground. That system has worked well during the years and I have heard few complaints about it. Could the section provide an option for people to put their case orally to the appeal board? They might want to explain something rather than write it out. Should we not provide for such a system?
This is something that is available elsewhere. It is the method used in the Netherlands and if they can do it, why can we not do so?
That is the fundamental question. Health care professionals do the best they can for their patients, to whom they have a duty of care and ethical responsibilities. A geriatrician treating a patient, a social worker, a practice nurse and a physiotherapist form a team, but they may not always be right. People have the opportunity to have another group of professionals examine their case. Geriatricians are very scarce and the idea we should duplicate them by appointing them to appeal processes when they are needed in service is not something with which I could agree. The Department of Social Welfare appeals process concerns financial supports, but we are talking about a care assessment by professionals, not administrators.
The concept is much the same.
It is not. I would not, for example, nor would anyone here, with the exception of Deputy Reilly, be capable of assessing whether somebody needed care, because I am not a health care professional, a social worker, a doctor or a geriatrician. It is they who will be charged with making assessments. Significant work has been under way among professionals in the past year in preparation for this legislation. It will be a standardised process. Therefore, it will not be the case that in one part of the country people will be assessed on a different set of criteria to another. We are trying to standardise the assessment and make it uniform. We are also trying to standardise the financial assessment through this legislation in order that, whether someone is a public or private patient, the support system will be the same, based on a person's particular financial circumstances. I am not in a position to agree to a new regime being put in place in the Health Information and Quality Authority, the role of which is entirely different. It will be a more serious issue, when the care assessment is done and care is required, to provide it as quickly as possible for the person concerned.
Is the amendment being pressed?
I will not call a vote on it now but will raise the issue again on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 10 in the name of Deputy O'Sullivan was discussed with amendment No. 7.
I move amendment No.10:
In page 13, subsection (8), line 29, to delete "as it thinks appropriate" and substitute the following:
"based on whether there is a reasonable possibility that the person would not, but for the provision by or on behalf of the Executive of care services, be able satisfactorily to care for himself or herself or to have satisfactory care services provided otherwise,".
Amendment put and declared lost.
Amendment No. 11 was also discussed with amendment No. 7. Is Deputy Reilly pressing it?
A vote has been called in the Dáil.
Sitting suspended at 11.45 a.m. and resumed at noon.
I remind members that amendments are grouped to facilitate debate. All amendments are discussed at once but when an amendment in a previously discussed group is reached, only the question is put and no further discussion should take place.
Amendment No. 11 not moved.
Amendments Nos. 12, 22, 29 and 90 are related and may be discussed together.
I move amendment No. 12:
In page 13, subsection (9), line 34, to delete "15" and substitute "5".
Has Deputy Reilly any comments to make on this amendment?
I am just reorientating myself, Chairman.
It is 15 working days or three weeks. The decision is made and surely it is possible to communicate it within five working days.
I have some sympathy and I will return on Report Stage. I will consult with the Parliamentary Counsel. It may not be five days but it may be shorter than 15 days and I accept that.
Is the Deputy happy that this covers amendments Nos. 22, 29 and 90?
I am withdrawing amendment No. 12 and if the Chairman is of the opinion they are all of a substance, I will agree.
Amendment, by leave, withdrawn.
Amendment No. 13 is out of order because it involves a potential charge on the revenue.
Amendment No. 13 not moved.
Amendment No. 14 has already been discussed with amendment No. 7. Is the Deputy withdrawing this amendment?
I move amendment No. 14:
In page 14, between lines 13 and 14, to insert the following subsection:
"(13) The content of a care needs assessment report shall be provided to a nursing home in advance of the subject residing in and receiving care from said nursing home.".
This amendment makes common sense so it has not been withdrawn.
It cannot be provided by the people assessing directly to the nursing home and will have to be given to the person requiring the care or to his or her care representatives and it is a matter for them at that stage. Besides patient confidentiality there are also data protection issues. As a matter of course it will be but it has to go through the route of the patient or the patient's care representative; it cannot go from the assessors to a nursing home in the public or private sector.
We have covered this ground at amendment No. 7. Is amendment No. 14 being pressed?
I have listened to the Minister and I will return to it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 14, subsection (13), lines 24 and 25, to delete paragraph (e) and
substitute the following:
"(e) where the person is a ward of court, the Committee of the Person of the ward, duly authorised in that behalf, or”.
Amendment agreed to.
I move amendment No. 16:
In page 14, between lines 30 and 31, to insert the following subsection:
"(15) In respect of any application for a care needs assessment, the Executive shall provide such administrative assistance as may be required to enable the person, or his or her representative, to satisfactorily complete the application.".
I would like some assurance from the Minister that there would be some help available to people who need it. This is complex legislation. As we have already outlined, many people for many different reasons will not be up to speed on this and will need some help and advice. Somebody needs to be made available to people to help them find their way through this.
The issue was the conflict of interest. A number of people will be involved such as the people doing the assessment and social workers. For the first time in this country, this legislation provides for the concept of care representative for those of diminished capacity which we will deal with later. They will have all the powers to deal with the interests of the applicant for care. The issue of concern to the Deputy, that somebody may not have the capacity to be able to make an application or deal with the HSE is covered very well by way of the care representative.
In that instance will all individuals have a care representative? Will that care representative be a competent person to deal with all the aspects of an application to the HSE? My concern is that we need an identifiable individual who is responsible for ensuring that people are properly represented when making an application. If there is a loose arrangement, which is currently the case, there is a danger that it will be Billy, Jack and Joe with nobody responsible at the end of the day. This is not satisfactory and we should take the opportunity to cover that off. If there is a reasonable amendment tabled by the Minister to tighten it up I will happily withdraw this amendment.
I refer the Deputy to page 14 of the Bill where the specified person can be the other half of a couple, a relative of the person who is over 18, a person appointed to be attorney under enduring power of attorney — which is where a person nominates another person to have enduring power of attorney in the event of the patient not being of sound mind — a care representative, a registrar of the wards of court or a registered medical practitioner. There is a large number of people listed. Other people can be added to the list if necessary.
Amendment, by leave, withdrawn.
Section 7, as amended, agreed to.
SECTION 8.
Amendments Nos. 17, 18, 88 and 89 are related.
I move amendment No. 17:
In page 14, paragraph (a), line 34, to delete “6” and substitute “3”.
Six months seems an inordinate length of time and three months would be more than adequate.
The time can be shorter if certified by a medical practitioner. The care assessment is a complex process and — I do not wish to use the word "expensive" in the wrong sense — we are talking about a scarce resource of health care professionals involved in the assessment. A general practitioner can make an application if his patient's circumstances have changed as it is not prescriptive at six months.
It does say not earlier than six months.
If it is certified by a medical practitioner that there has been a change in circumstances. Section 8(b) states:
(b) before the expiration of 6 months after the date on which that determination was made, make a further application under that section for a care needs assessment if—
(i) the person satisfies the Executive that, since the person's last care needs assessment, there has been a material change in the person's health or circumstances which warrants the application being made,
or
(ii) the application is accompanied by a certificate in the specified form—
(I) issued by a registered medical practitioner who has—
(A) seen the person's most recent care needs assessment report, and
(B) examined the person since the person's most recent care needs assessment,
That is a reasonable provision.
Amendment, by leave, withdrawn.
Amendment No. 18 not moved.
Section 8 agreed to.
SECTION 9.
Amendments Nos. 19 to 21, inclusive, and 27 and 28 are related and may be discussed together.
I move amendment No. 19:
In page 15, subsection (1), line 16, after "applies" to insert the following:
",or a specified person within the meaning of section 7 on his or her behalf,".
Most of the amendments in the group are in my name. Amendment No. 19 is a technical amendment to make it clear that a specified person may apply on behalf of an applicant for State support. Amendments Nos. 20, 21 and 27 propose to provide that the Health Service Executive may only seek information which it is reasonable to require. The word "reasonable" in respect of information is widely used in legislation of this nature and the concept is reflected in subsection (3)(b).
Amendment No. 19 is a reasonable proposal. While the matter is provided for in the legislation, I am willing to examine the issue and revert to the Deputy on Report Stage.
On the issue of the information it is reasonable to require, the Health Service Executive must be able to access the information it needs on a person's financial circumstances. One person's view of the meaning of the word "reasonable" may be considered unreasonable by another. While I am not suggesting many older people are involved in providing fraudulent information, if the HSE must satisfy itself as to a person's financial circumstances, it is perfectly legitimate for it to be able to ask for the information it believes is necessary.
I thank the Minister for undertaking to consider amendment No. 19.
On the issue of what is reasonable, I have seen people who have applied for third level grants reduced to tears by local authority staff. Applicants who supply all the documentation they believe is required are often asked to produce further information, for instance, an ESB bill from a previous residence. This may result in a delay of months in having their financial assessment completed. The purpose of the amendment is to ensure the HSE seeks only the required information and does not harass people by seeking unnecessary additional information.
Amendment, by leave, withdrawn.
Amendments Nos. 20 to 22, inclusive, not moved.
Section 9 agreed to.
SECTION 10.
I move amendment No. 23:
In page 15, subsection (1), line 44, to delete "a suitable person" and substitute "an independent third party".
The purpose of the amendment is to ensure the "suitable person" would be an independent person.
The amendment was discussed with amendment No. 9 which was withdrawn. Does the Deputy propose to withdraw this amendment?
Does this relate to the discussion on HIQA?
It refers to the nature of assessments.
I understand we are dealing with financial issues rather than care. The provisions on the financial assessment are clear. It will be done on the basis of 80% of a person's net income. While I accept that we may dispute the figure on which an assessment should be based, I do not understand the purpose of the amendment. Section 10(2) states the financial assessment shall be carried out, in the case of a person who is not a member of a couple, in accordance with the provisions of Parts 1 and 3 of Schedule 1.
The amendment merely proposes to enshrine in the text the need for independence. It is extremely important that financial assessments are carried out independently. In this case, they should not be made by the Health Service Executive or an agent who receives significant work from it. There could be a conflict of interest if an estate agent or accountancy firm which acts for the Health Service Executive in other areas becomes involved in the assessment process. We saw this in the legislation to provide refunds for nursing home care when an accountancy firm was paid many millions of euro to carry out assessments. Many of the appeals to its decisions were successful. The word "independent" should replace "suitable" because the latter is open to interpretation.
If somebody is not satisfied with the estimated value, he or she may obtain another valuation.
Why not provide for independence from the outset?
Is the Deputy proposing to establish a separate organisation to carry out assessments?
No, I propose granting the right to have an independent person appointed to make the assessment. As I have outlined, the danger is that the HSE will award the contract to carry out assessments to certain companies with which I would not choose to engage if I were holding the other end of the stick. I do not believe the Minister would choose to engage with these companies either.
A standardised process is in place for making financial assessments and it applies on a standardised basis across the country. The assessment is based on 80% of income, up to 7.5% of the value of one's house if it is jointly owned and not more than the cost of care.
How will the value of a house be assessed? Will an estate agent make the valuation?
The house will have to be disposed of at some stage and at that point the money will be recouped. If an assessment was made two years ago, the valuation would have been very high. The Bill facilitates circumstances in which the value of a house declines. The figure is capped and the money will be recouped when the house is disposed of, subject to the application of the consumer price index.
Is that not the issue? We have never before experienced devaluation in the value of houses. The value of assets, whether houses, land or businesses, is in decline. The most obvious devaluation has occurred in stocks and shares which are now worth perhaps one twentieth of what their value was when an assessment was made. Clearly, we do not know what will happen in the future. The Minister has indicated the legislation will take account of any decline in the value of property. It is not clear whether the 15% limit will be based on the value of a person's home at the time he or she entered the nursing home or at the time the charge becomes payable.
Under the subvention scheme, HSE staff in various parts of the country deal with assessments for the current subvention system. I understand that where the value of a house is being considered, the family is asked to obtain a valuation.
That is generally accepted, unless the valuation obtained is way out of line with the norm. In such circumstances, an independent valuation may be sought.
Is it envisaged that staff dealing with assessments under the current subvention scheme will make assessments under the new scheme?
No, given the volume of assessments involved, it is unlikely the same people will perform this task. For the first time, the assessments will be made on the basis of a standardised financial process. I understand from my officials that work done in the past year on the care assessment and standardising the financial assessment is going well and that people are generally happy with it.
Many argue that current valuations tend to be on the low rather than high side. The Bill provides for changes in financial circumstances and market conditions. It should also be borne in mind that no one will pay more than the cost of his or her care. The aim of the legislation is not to seize 15% of a very valuable asset, regardless of the cost of care. Following the enactment of the legislation, the State will continue to pay 70% of the cost of care. The current position is that 90% of the cost is paid for if one is in a public facility or a bed procured on one's behalf by the Health Service Executive, whereas roughly 40% of the cost is paid for if one is in a private care facility. It is grossly inequitable but this legislation aims to deal with the matter equitably.
I am not one bit happy about this. The word "independent" will give people a lot of comfort. The Minister could even include the term "suitably independent person" if she wished.
I do not believe the Deputy is identifying a real problem. I will reflect on the issue and revert to him on Report Stage. I do not want anyone to believe he or she will be duped into giving away more than the value of the property or that it will be valued unreasonably. Let me reflect on the matter.
Amendment, by leave, withdrawn.
I move amendment No. 24:
In page 15, subsection (1), line 45, after "Executive" to insert "within two months of the application".
The purpose of the amendment is to insert a time limit for the preparing of reports. There appears to be no time limited specified in section 10(1).
As I stated, I will reflect on this issue before Report Stage. I am concerned about initial applications because there are 22,000 people in care, of whom approximately 7,000 or 8,000 are in public facilities. Therefore, there will be many applications initially when the legislation is enacted. I do not want to have a provision that would have officials breaking the law because of the huge volume of applications to be dealt with at the start. The intention is that determinations will be made very quickly. The legislation refers to determinations being made as soon as is reasonably or practically possible. I will reflect on the points made by Deputies O'Sullivan and Reilly before Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 25:
In page 16, subsection (4), line 19, after "may" to insert "authorise a suitable independent third party to".
The legislation includes the words "may authorise" rather than "authorise a suitable independent party". This is key and the term recurs throughout the Bill. The issue causes concern for many and the Minsiter can address the issue by using the word "independent".
We do have an ombudsman with extensive powers in regard to administrative decisions made by the State.
It involves a very long, cumbersome process. The ombudsman for health would be overloaded.
This committee has become the ombudsman for health.
Is the amendment being pressed?
Yes. I could withdraw it and retable it on Report Stage but I will not do so because I have done so in respect of many amendments. I am concerned that when we have the debate in the Dáil, we will not have an opportunity to vote on all the amendments proposed.
Amendment put.
The Committee divided: Tá, 6; Níl, 8.
Tá
- Connaughton, Paul.
- D’Arcy, Michael.
- Lynch, Kathleen.
- Neville, Dan.
- O’Sullivan, Jan.
- Reilly, James.
Níl
- Aylward, Bobby.
- Conlon, Margaret.
- Fitzpatrick, Michael.
- Flynn, Beverley.
- Harney, Mary.
- Ó Fearghaíl, Seán.
- O’Connor, Charlie.
- O’Hanlon, Rory.
Amendment declared lost.
Amendments Nos. 26 and 27 not moved.
I move amendment No. 28:
In page 16, subsection (7), line 29, to delete "28" and substitute "56".
This amendment proposes to give more latitude to the claimant.
I am happy to reflect on this amendment and return to it on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 29 not moved.
Section 10 agreed to.
Section 11 agreed to.
SECTION 12.
Amendments Nos. 30 and 42 are related and will be discussed together.
I move amendment No. 30:
In page 17, subsection (1)(a), lines 25 and 26, to delete all words from and including “to” in line 25 down to and including “Executive” in line 26 and substitute “to the relevant facility”.
These are technical amendments which ensure financial support will be provided directly to a public or voluntary facility on behalf of an applicant.
Amendment agreed to.
Amendments Nos. 31 and 32 are ruled out of order as they involve a potential charge on the Revenue.
Amendments Nos. 31 and 32 not moved.
Question proposed: "That section 12, as amended, stand part of the Bill."
Through no fault of their own, people should not be penalised by virtue of their care representative failing in his or her duty. For example, if the son of a person in a nursing home fails to make a co-payment, either through negligence or otherwise, that person and the nursing home should not be penalised.
Concerning the issue of ancillary State support, it is difficult to draft any amendments that would be not be ruled out of order. However, this section concerns the 15% levy on the sale of the family home after the death of the person. This is a principle with which the Labour Party has difficulties. Originally, the Labour Party saw a constitutional problem with this provision. However, the way it has been drafted now makes it a voluntary choice to apply for ancillary State support. The reality is that if one cannot afford the nursing home without the ancillary State support, one has to accept this lien on the family home after the death of the individual. I want to register my objection to this catch-22 wording to the section.
I have a fundamental problem with this section. There is nothing voluntary about these provisions. If the family of a person in a nursing home cannot pay, the 5% levy per year on the sale of the home kicks in with a cap of three years. In the case where such a person owns land, however, there is no three-year cap on it. In effect, if the person were to stay in a nursing home for ten years, he or she would be responsible for 5% of the value of the farm for that period. This will raise fundamental problems in the cases of farm owners.
Given the set of circumstances and the cost of nursing homes, one could have an average charge of €800 a week. Some places are more costly, while in others are somewhat less. If one were to take the figure of €800 a week, that is roughly €40,000 a year. Over ten years, it is €400,000.
Given the present price of land — and I am talking about people from the rural areas — the value of a normal 40-acre farm would be eaten up paying for this. There is an enormous problem of family expectations regarding the inheritance of the home of a father or mother. This arises here and I cannot understand why there is not a cap after three years on the property, as there is with a house. I have a problem with the house as well, but at least there is a cap. I understand that the cost involved for the 5% on the house cannot be any more than the cost of the care in any particular year. I am sure we shall come to this later, but it is important to ensure that exorbitant rates are not charged against a property that is going into this system. It would be highly unfair if nobody was paying other than the State and it was found out that the cost of care for the three years was substantially above the norm. I assume we shall come to that before this day is over because potentially that could mean a brake on the system.
A culture of expectation exists among family members that some day they will inherit the family home and the farm. People who do not come from a rural background might ask why anybody else should pay if there is money or assets available. This must be balanced against the culture as it exists. I have heard the Minister speak about this on a number of occasions and I accept it is a difficult matter. However, I believe we are making a monumental mistake in not at least capping assets other than the house for three years.
I know I have the Chairman's indulgence and perhaps, strictly speaking, I am out of order. Of all the fundamental problems that have been identified as flaws in this Bill, this presents the most enormous difficulties. I believe it will split families for generations. Unfortunately, people might not be as attached to their parents in the future or show them the love and affection they deserve, if they come to believe the State will actually get the farm. Anybody who knows anything about the social culture of rural Ireland will certainly understand what I am talking about. I plead with the Minister to put a cap on the property, along the same lines, more or less, as the cap on the house. I am sure I shall have an opportunity at some other stage to talk about how this will be recouped through the Revenue Commissioners. I foresee enormous problems in the State getting its money under this system, but that is another issue.
I thank Deputy Connaughton. I do not want us to get into Second Stage type debates, if at all possible.
I have made my views clear regarding the whole philosophy surrounding this issue and the notion that we are to treat people of a certain vintage differently from others. I believe this is fundamentally wrong and that these matters should be dealt with through taxation. It is fundamentally wrong that elderly people should be treated differently from someone, for instance, who might have had a stroke at 40 or the chronic young sick, as they are described. Once this Bill is passed there is nothing to stop the State — because precedents will have been set — from treating differently the young, the middle-aged, stroke victims or people who have an accident-related problem. Once the precedent is set, we are up and running. What is happening is wrong. We have a problem and we need to resolve it.
An enormous crisis exists owing to the lack of care for the elderly, who are living longer. In some instances they are healthy, but in many cases they are not. Under section 12 of the Bill, how are we to deal with the increased costs of nursing home care? I am no great fan of regulators, but why are we not introducing a regulatory framework in relation to the cost of nursing homes? I am no exception among public representatives in this regard, but I know a woman who is about to be evicted from a nursing home tomorrow because the additional money that needs to be paid on top of the enhanced subvention she is getting from the health board is simply not available. Hopefully, the eviction will be averted, but the notion that nursing homes, which admittedly perform a much valued service, can on 1 January every year increase their fees by €100 or €200 is absurd and some type of regulation is necessary in this regard.
This is to a great extent a futuristic Bill. We need to examine how in future we can stop the cherry-picking among nursing homes that will be inevitable as a result of this legislation. How are we to deal with that?
I support Deputy Connaughton in what he has said, although I do not want to repeat it. As someone from a rural area, I understand where he is coming from.
I want to outline this scenario for the Minister, and perhaps she might respond. A 50 year old person gets a severe stroke and is obliged to go into a nursing home. He has a 20 year old son on the farm, but has not signed over anything to him, although it is envisaged that the young lad will inherit the farm within five, six or even 15 years when the father retires, or perhaps there is to be a joint arrangement. At the time of his admission to the nursing home the father has full ownership of the farm, on which the son is working. What circumstances are they now in as regards contribution, from the ownership of the farm viewpoint?
We must recognise that there were always charges for patients going into nursing homes, where they could afford to pay. Indeed, at one stage the obligation was put on the family to do so, often under tremendous strain. However, that was taken away.
I support the new arrangements the Minister is introducing in this regard. To me it was totally inhumane that where people owned a house and had no next of kin, they were obliged, perhaps, to sell it while they were still living. Everybody who goes into a nursing home, regardless of how incapable he or she might be of living alone, expects to return to his or her own house some day. I therefore believe it is a very beneficial change, where the obligation will be transferred to the estate.
I believe that where immediate family will inherit land, property or whatever, there is a case to be looked at. However, there are very many instances, as I have seen, where no immediate family is involved and if a person dies, people will come home from abroad to claim the property. In my view, regardless of how wealthy a country is, we are going to have means testing and contributions from people. That is a fact of life, and if people are in a position to contribute towards their keep in a nursing home, I believe it is appropriate they should do so, because it means they will have a better quality of care, with a higher level available to everyone. I do not believe the State will ever be in a position to pay for everything we would like it to.
Has the Minister considered allowing people to use the equity in their homes to buy care in the community under the same arrangement?
Deputy Connaughton's point is key to our debate. I must point out to Deputy O'Hanlon that the hardship placed on families by the Department was found to be unconstitutional. That is why we are where we are today to a large extent.
I agree that when people can afford to do so, they ought to make a contribution. I subscribe to the notion that there needs to be some emphasis in this Bill on how to pay for home care packages because there is no such emphasis at the moment. This is a key issue, given that we will have a high threshold for high dependency people and that the lower one third no longer will be able to access nursing home care except in the exceptional circumstances the Minister has outlined.
I want to make a point about the specific amendment tabled on this issue. We cannot have a situation where the Health Service Executive determines it is no longer going to pay the nursing home the additional stipends when somebody else is guilty of that misdemeanour and should be pursued for it, that is to say, the third party care representative.
This ancillary support is from section 12 to section 20, so I could bring up the following issue at any stage. When the person dies, a mortgage type charge is collected by the Revenue Commissioners for the ancillary support. What happens if the person dies intestate? The interest kicks in fairly quickly and if there is a dispute over the administration of the estate that goes on for years, will there be accrued interest built up for the family?
We have had quite a philosophical debate. I draw the Deputies' attention to the fact that in the current climate, some Opposition Members have claimed that capital acquisitions tax or inheritance tax is too low at 20%. We are providing a 15% cap here. I was on a programme the other night with an economist from ICTU who made the point that inheritance taxes in Ireland are far too low, yet here people are saying that it is unreasonable to take up to 15% of a family home.
That is a different concept.
It is not. The concept behind this Bill was to bring equity between the public and private systems. There are those who are in an almost totally funded public bed or in a bed contracted by the HSE in a private nursing home, and the care recipient pays no more than 10% of his or her income towards the cost. There can be a different situation in a private nursing home, as Deputy Lynch pointed out, where a person might have to pay up to 60% of the cost of care. This Bill brings equity between those two situations.
The purpose of this Bill is to make it affordable for families. We have all come across cases where people have been forced to run down their assets and sell their family home. I know of a situation where a nephew was obliged to pay for care in Cork. A relative came over on holiday from the UK, suffered a stroke and could not return, so the nephew was forced to pay for the care. This happened a few years ago. Such situations are unreasonable and unfair. This places no onus on children or on relatives to fund the care of their parents or relatives.
I have sympathy with the point made by Deputy Reilly in his amendment. The contract is between the care recipient and the nursing home, and the idea the HSE would stop allocating money in the event of a dispute is unreasonable. I will undertake to come back on that issue, but I must talk to the Parliamentary Counsel first.
Deputy Neville also makes a good point and I discussed it with my officials. We want to encourage the early transfer of family land and business to the next generations. That has been the policy of farm organisations for many years. Many support schemes and tax-based incentives were introduced to encourage the earlier transfer of such farms. I have had discussions with the IFA and others about these issues. The Bill is in keeping with the most recent social partnership agreement which was that there should be a co-payment between the care recipient and the State and there should be equity between the public and private systems. This is in line with that. However, I have sympathy for somebody as young as 50 who suffers a stroke, becomes incapacitated and clearly will not have transferred on the farm. We are examining that situation with a view to dealing with it. Someone should not be expected to transfer his farm to the next generation when he is in his early 50s, and if a person should find himself in need, it is unfair that the whole farm could go. This does not just apply to farmers and their land. It should also apply to pubs, shops and so on.
The case mentioned by Deputy Lynch could not happen under this Bill, and it is to be hoped it will not happen anyway. The cost of nursing home care will be driven by a number of things. It will be driven by the cost of staff because caring for people is a very labour intensive activity. Around 84% of the total health budget goes towards staff costs. In the public system, our costs are running somewhere between €1,700 and €1,800 per week. The new regulations will add to the cost. To ensure we have quality care and we enforce high standards of care, especially as we move in six years' time from the existing cohort of nursing homes to single rooms and better environmental conditions, the cost of care will have to rise. However, there is no way we can regulate the cost of care. There is no way to regulate prices in the economy because it is not possible to do so. We just ensure the cost of care is affordable.
This Bill is dealing with the current situation. In the medium to long term, we need a more tax-based social insurance support scheme for long-term care. I would favour that. A commitment has been made to examine that but it requires a fund of money to be set aside at some future point. We know that the current pot of money in the Department of Social and Family Affairs for PRSI is being depleted quickly owing to the rising levels of unemployment. I would love to see such supports in the future.
Deputy O'Sullivan spoke about the person who dies intestate. All that is dealt with further on in terms of administrators and so on. If someone is going to avail of this voluntary scheme, which I accept is not voluntary for many because they will not be able to afford care without using the scheme, the care recipient or his or her representative enters into a contract with the particular nursing home, and these arrangements will be dealt with at that point.
Many people will say the Revenue Commissioners are too good at collecting what they are supposed to collect, but they are charged with collecting this money on behalf of the State. There can be more than one deferral on the property if it is somebody's principal private residence. We do not want to put people out of their houses.
I know about the other form of deferrals and so on, but if a person dies intestate, is there a way of taking that amount of money out without running up interest?
Interest does not apply for 12 months, while hardship clauses are provided for in the Bill. We provide for an administrator to deal with those situations.
We had a discussion earlier about younger people getting a stroke, but what about an older person who suffers a stroke, who has been living on the farm with two siblings and who lives on in a nursing home for ten years? The percentage is rising all the time. The cap is on the family home but it is not on the land. This does not just relate specifically to land and could relate to, for example, two brothers and a sister who run a small shop and live above it. While this is provided for in the division, the amount of money owing, which accumulates over a ten-year period when the person dies and the two siblings are still on the land, would force the sale of that land. This issue needs to be addressed.
The Minister did not respond to my earlier point. It is a fundamental issue. In the ordinary course of events, farming families transfer the land to a son or daughter. I am not talking about people of the age of 50. I was very glad to hear the Minister's response to the particular case referred to by Deputy Neville which was important. I am talking about a much more widespread issue which is happening every day in every parish in Ireland in the normal course of events when the farm is being transferred to a son or daughter. Will the Minister continue not to apply a cap to that land? If the father or mother is in the nursing home for ten, 15 or 20 years, the 5% charge remains for every year.
In so far as the Revenue Commissioners are concerned, where the residential house is the only house the family has and there is no second house, when the son or daughter inherits it, will there be a burden on the title? In other words, if the 15% in respect of the three years is not paid, will the son or daughter be able to become the registered owner and can the property be transferred? I am sure the Minister fully understands my point. In addition, what sort of interest rate will the Revenue Commissioners charge on that 15%? Somebody is in for a big shock before this is over.
With regard to the point on the ten or 15 years in care, other than in the kind of situation where somebody is young and chronically sick or where a relatively young person becomes debilitated and requires long-term care, we do not envisage situations where people would be in care for that length of time. I understand the average length of stay is two to three years. The stay in Ireland is longer than it is in Scotland and other countries because in the past people went into care too early because we did not have the alternative supports——
People are now living much longer.
Yes, that is true and it is a very good thing. We now have a life expectancy that is one of the highest in Europe and higher than that in our nearest neighbours, which is a fantastic achievement in a relatively short time. Notwithstanding the life expectancy having increased substantially in recent years, we do not want people in care for longer periods because we want to maintain them at home. The reason people went into care in the past in many cases where they could have been maintained at home was that we did not have the necessary supports. We must continue to build up such supports over time to a point where they are adequate throughout the country.
I have some sympathy with the point the Deputy is making. However, we need to ensure that if we are to do anything in the case of what is broadly called the farmer, where farming is the principal income of the son or daughter, we do not want to open ourselves up to exposure to those who are extremely wealthy where we would just cap their contributions in the same way we cap them for those who are not so well off. I have given an undertaking to consider this issue because reasonable points have been made about family situations where it is the principal livelihood and the person is dependent on it and so on. It could be unreasonable if the person happened to be in care for a long period or could not reasonably have transferred the property because that person was relatively young when he or she became incapacitated.
While the ownership can be transferred, there is a charge is on the property. It is a matter for Revenue to collect——
The Land Registry will not transfer it until Revenue gets its money. To put it in simple English, is this not what will happen?
I understand one can transfer it with the charge. One can transfer it into the ownership but the person will have to pay the charge.
It is past 1 p.m. and we had agreed to adjourn. I suggest we suspend until 2.05 p.m. as a vote in the House is anticipated for 1.30 p.m. When we resume, we will put section 12, as amended.
Sitting suspended at 1.05 p.m. and resumed at 2.05 p.m.
Before the break, the Minister indicated a willingness to look at several of these amendments in a positive light.
Question put and agreed to.
Sections 13 and 14 agreed to.
SECTION 15.
Amendments Nos. 33, 38 and 54 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 33:
In page 19, lines 1 and 2, to delete all words from and including "means" in line 1 down to and including "person" where it firstly occurs in line 2 and substitute the following:
"means an asset other than a transferred asset which is a relevant asset of the person".
Amendment No. 33 provides that ancillary State support may not be offered in regard to an asset which is a transferred asset. This is necessary because in the case of transferred assets, the applicant to the scheme will no longer be the registered owner of the asset. As such, it would not be possible for the applicant to consent to the creation of a charge over a property in which he or she has no ownership.
Amendments Nos. 38 and 54 provide for statutory notification procedures whereby the Health Service Executive must notify an applicant of the outcome of an application for ancillary State support or an application for further deferral within a specified timeframe, that is, 15 working days from the date of the decision. In addition to being good practice, these amendments are consistent with the notification procedures provided in other relevant sections of the Bill, for example, those relating to care needs assessment, as set out in section 7; application for State support, as provided for in sections 9 and 11; and reviews and appeals, which are dealt with in sections 29 and 30.
Amendment agreed to.
Section 15, as amended, agreed to.
SECTION 16.
Amendments Nos. 34 and 35 are related and may be taken together. Is that agreed? Agreed.
I move amendment No. 34:
In page 19, subsection (3)(b), lines 32 and 33, to delete all words from and including “by” in line 32 down to and including “person)” in line 33 and substitute the following:
"in respect of that portion of the asset owned by the applicant".
This amendment relates to requests for State ancillary support where the applicant is part of a couple. It proposes that the stipulation that the request for payment be made "by both members of the couple (or a care representative of such person)" be amended so as to specify that the request be made "in respect of that portion of the asset owned by the applicant". The purpose of the amendment is to ensure that where an asset is owned jointly by the recipient of care and his or her partner, only the interest of the recipient is charged with the loan. For example, a partner's half interest in the family home should not be charged with the loan as to do so would represent an unwarranted attack on that partner, who is not in receipt of the relevant State support. In other words, the loan should only be charged on that portion of the property owned by the person in need of care.
Although it is not specifically referenced in the amendment, I take this opportunity to address the issue of siblings sharing a primary residence. I am probably not strictly in order in raising this matter with reference to this section of the Bill, but it is an important issue that must be addressed. The term "couple" covers various types of relationships which include a sexual element, but it does not cover the situation of siblings who live together. Will the Minister respond to the concerns expressed by bodies such as Age Action Ireland regarding the difficulty for siblings, particularly in rural areas, arising from this legislation? Some of these people may have lived together all their lives. It seems unfair that the sibling of a person who requires State care should endure this type of pressure.
I am well disposed to the argument made by Deputy O'Sullivan regarding siblings. I propose to deal with it under the provisions relating to what is defined in the Bill as a "connected person". I accept the concerns that have been expressed regarding the situation where, for example, a brother and sister are living together in the family home and neither has ownership in another residence. In the event of one going into care and coming into receipt of State support, the other would be liable to make a payment upon the death of the sibling in care. This is unreasonable and I propose to deal with it in the manner I have indicated.
Amendments Nos. 34 and 35 propose that ancillary State supports may only be applied for in respect of the asset or portion of the asset owned by the applicant. This would be very unfavourable to the applicant and his or her partner. In the case of a couple, the financial assessment is based on 50% of the combined income and assets of the couple. To refuse to allow a couple to apply for ancillary State support in respect of any chargeable asset included in the financial assessment would be disadvantageous and contrary to the commitments offered by the scheme.
It seems I may have misunderstood the section.
As I understand it, what the Deputy seeks to achieve in this amendment is already provided for in the Bill and, moreover, the amendment would have the opposite effect to that sought by Deputy O'Sullivan. In the case of an applicant who is part of a couple, the financial assessment is based on half the value of the family home. Even where both names are not included on the deeds of the house, which is not uncommon in the case of older couples but will be less so in the future, there is still an implied interest in the home on the part of both parties. Therefore neither partner can be put at a disadvantage. On the other hand, to do what Deputy O'Sullivan proposes in this amendment may put one partner at a disadvantage.
My objective in this amendment was to ensure that the cost would be charged only against half the value of the home.
That is already the case.
That is fine.
In the case of a couple, the maximum amount chargeable will be 7.5% rather than 15%.
The Minister has raised an interesting point. Where siblings are living together and one is not named as co-owner of the home even though he or she has lived there all his or her life——
To clarify, people in that situation will not lose their home.
However, the Minister herself raised the situation where one of the parties may have taken a loan from a bank or other institution against his or her half of the property. In such cases, will the charge be taken against the whole value of the property or against the remaining value of the relevant half share of the property? I accept that the Minister has undertaken to address this. However, she has raised another issue in terms of those cases where one of the parties may have charges against his or her portion of the home. Therefore, that person's ownership of the home is proportionately less.
In cases where there is a large mortgage on the home, the bank or other financial institution has first call on that. The State cannot simply ignore the mortgage. The financial assessment will be done on the basis of the value of the applicant's ownership of the home.
That is fine.
Amendment, by leave, withdrawn.
Amendment No. 35 not moved.
I move amendment No. 36:
In page 20, subsection (7), lines 11 to 13, to delete paragraph (c).
Section (7)(c) states:
Notwithstanding paragraphs (a) and (b), the weekly instalment of ancillary State support may be advanced on such periodic basis as is specified in writing by the Minister.
This provision may serve to disadvantage people if, for example, the period of advancement were to become three-monthly.
The assessment is done on the basis of the applicant's weekly income. However, we envisage the paying over of these moneys to the nursing homes in blocks rather than requiring the payments to be administered on a weekly basis. That is what is currently done with contract beds and so on.
Will the Minister give some indication of the frequency envisaged? What she has said is very loose.
We will take advice on what is practical and how we can best ensure flexibility.
Will the Minister consider providing some guidelines in this regard? The wording of this paragraph suggests it might be done on a yearly basis.
Sure.
Amendment, by leave, withdrawn.
I move amendment No. 37:
In page 20, subsection (10)(b), line 31, after “the” to insert “voluntary”.
This amendment relates to a situation in which someone repays before the allocated time. The Bill states: "Nothing in paragraph (a) shall prevent the repayment of monies advanced by the Executive by way of ancillary State support prior to the occurrence of a relevant event or a deferred relevant event.” If someone comes into money or just decides to pay early, he or she can do so. However, I want to insert the word “voluntary” to prevent the HSE from trying to force someone to repay early.
I am prepared to accept the amendment and I will revert to it on Report Stage. It is a good amendment.
Amendment, by leave, withdrawn.
I move amendment No. 38:
In page 21, between lines 31 and 32, to insert the following subsection:
"(16) The Executive shall, not later than 15 working days after making a determination under this section that an application for payment of ancillary State support be refused or a determination of the amount of ancillary State support to be advanced, give notice in writing of the decision and the reasons for the decision to each person who made the application.".
Amendment agreed to.
Section 16, as amended, agreed to.
SECTION 17.
Amendments Nos. 39, 40 and 84 are related and may be discussed together.
I move amendment No. 39:
In page 22, lines 1 to 4, to delete subsection (2) and substitute the following:
"(2) The Executive shall not make a payment in respect of ancillary State support prior to the making of an order by the Executive charging the interest in the relevant chargeable asset with the secured amount.
(3) The Board of the Executive may appoint a person or persons who are employees of the Executive to make orders under subsection (2) and each such order shall be deemed to have been executed by the Executive under the seal of the Executive in compliance with paragraph 1 of Schedule 2 of the Health Act 2004.”.
These amendments seek to clarify the process in respect of charging orders. Amendments Nos. 39 and 40 simplify and expedite the procedure to secure amounts advanced by way of an ancillary State support. They provide that the charge against the property is made at the time of making the charging order. They also provide that the HSE may delegate authority within its own organisation in terms of making charging orders under its seal. In effect, this ensures that the applications for ancillary State support can be processed quickly, as the charging orders will not need to be submitted to the board of the HSE for approval.
Amendment No. 84 is a technical amendment. It reflects an observation by the Property Registration Authority following publication of the Bill that it would be preferable for the legislation to include an explicit provision on the release of charging orders. This ensures that there is no ambiguity regarding responsibility for releasing orders that are registered against an asset following the repayment of the ancillary State support.
Amendment agreed to.
I move amendment No. 40:
In page 22, subsection (3), lines 8 and 9, to delete all words from and including "at" in line 8 down to and including "support" in line 9 and substitute "at the time of the making of the order".
Amendment agreed to.
Amendments Nos. 41 and 44 are related.
I move amendment No. 41:
In page 22, subsection (11), line 49, to delete "Registry of Deeds" and substitute the following:
"Registry of Deeds, and the Executive shall not be required to make a payment of ancillary State support where such assistance has not been given".
These amendments, when read together, will remove the right of the HSE to seek repayment of ancillary State support where an applicant has not provided assistance in registering a charging order. However, they ensure that the HSE may effectively refuse an initial application for ancillary State support where reasonable assistance is not provided in registering the charge at that time. The amendments represent a much fairer approach for the applicant. They ensure that the grounds for repayment of ancillary State support are clear. At the same time, they ensure that the HSE has a right to a reasonable level of assistance when considering the initial application.
Will the Minister explain the amendments more clearly? If co-operation is not forthcoming, who will make the decision on the ground as to how the provision will be implemented?
I welcome the Minister of State, Deputy Hoctor, to the meeting.
In a way, the situation described in the amendments is the same as it is now. If one applies for a State support, be it a social welfare payment or a medical card, one is expected to provide reasonable assistance by way of furnishing information. In this instance, we are providing for care assistance because we are dealing with elderly people, many of whom have diminished capacity. The amendment has been tabled on the recommendation of the Property Registration Authority to make the process clearer and simpler for the applicant. It is positive.
On page 22 of the Bill, section 17(11) states: "A person who makes a request for payment of ancillary State support shall have an obligation to give all reasonable assistance to the Executive as the Executive may request to facilitate the registration of an order under subsection (2) in the Land Registry or Registry of Deeds.”
Section 17(11) means that, where evidence is not forthcoming, someone will take it upon himself or herself on the executive's behalf to register the matter with the Land Registry.
It deals with simple matters, such as providing the right address for the property.
Take the example of an elderly person of diminished capability who cannot do anything for himself or herself. Often in such cases, the person has no relatives on whom to rely. What would occur in such a case? Does responsibility fall to the nursing home or HSE officials?
The person's care representative will act on his or her behalf.
Could that representative be someone from within the HSE?
There is a long list of people. On Second Stage, Deputy Reilly suggested the inclusion of grandchildren, which I would be happy with. The list of people is long, comprising a son, daughter, brother, sister and spouse. We will add grandchildren. The Deputy might have ideas on further people. The representative would not normally be someone in the HSE.
I accept that it is a bit like the question of how long is a piece of string. However, cousins could be the only people with a genuine interest in the elderly person. Could they not be added to the list?
Sure. An individual has the right to give someone enduring power of attorney when he or she is compos mentis. I understand that many people do this. It is not unusual. One could nominate a son, daughter, son-in-law, daughter-in-law, brother, sister or someone else. Ward of court procedures could be taken where there are no relatives or if no one wishes to become the care representative.
The ward of court procedure is difficult and expensive.
Amendment agreed to.
Section 17, as amended, agreed to.
SECTION 18.
I move amendment No. 42:
In page 23, subsection (1)(a), lines 7 to 9, to delete all words from and including “the” where it thirdly occurs in line 7 down to and including “Executive” in line 9 and substitute the following:
"the appropriate amount of ancillary State support to the relevant facility".
Amendment agreed to.
I move amendment No. 43:
In page 23, between lines 28 and 29, to insert the following subsections:
"(5) Any decision under subsection (4) shall not take effect for a period of 10 working days following the notification of the proprietor of an approved nursing home.
(6) The Minister shall make regulations outlining the basis on which the Executive may decline to make or to continue to make payments in respect of ancillary state support.
(7) In making regulations under subsection (6), the Minister shall require the Executive to make every reasonable enquiry to establish the reason for the person’s failure to pay the Executive or the proprietor if an approved nursing home.”.
I would like these subsections to be inserted. Otherwise, the HSE will be able to decline to make payments. The time after which the decision can take effect needs to be specified, in this instance ten working days, to allow for the notification of the proprietor of the approved nursing home. This is only fair.
May I reflect on the amendment before Report Stage?
On subsections (5), (6) and (7)?
No, on all of amendment No. 43. It would involve the deletion of the provisions of section 18(4). I would be happy to examine the amendment.
Amendment, by leave, withdrawn.
Section 18, as amended, agreed to.
SECTION 19.
I move amendment No. 44:
In page 24, to delete lines 1 to 4.
Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20.
Amendments Nos. 45 and 46 are related. The alternative amendments Nos. 47, 49, 51 and 52 are related. Amendment No. 48 is related and an alternative to amendment No. 47.
I move amendment No. 45:
In page 24, subsection (2)(a)(ii), line 40, to delete “3” and substitute “12”.
Amendments Nos. 45, 47, 51 and 52 are in my name. However, whether they are in my name or Deputy Reilly's, they relate to the repayment of moneys advanced by way of ancillary State support where there is a deferral for a "relevant event". In amendments Nos. 45 and 51, I am seeking to provide a longer period following a person's death for his or her partner to request the postponement of the charging of the loan on the family home. There are difficult circumstances surrounding the death of a person and I want to ensure that, if necessary, a person can take longer than the length of time specified in the legislation.
I refer to amendments 47 and 52 which are connected. Their purpose is to delete the time limit of six months in respect of a late application by a surviving spouse or partner in keeping the family home. There is no major administrative reason an application must be made within six months. There is no significant public policy reason there needs to be an absolute time limit in respect of such applications and our amendment seeks to have the cut-off date of six months deleted.
Are there further questions on the amendments?
Is amendment No. 49 included?
Yes.
Deputy Sullivan and I are agreed that there is a need for a longer period of protection. Owing to the nature of the situation the remaining partner or a sibling might be compromised and not aware of the position. Therefore, amendment No. 49 is of particular significance. It reads, "the Executive shall make every reasonable effort to inform the person's partner, or their representative, of the need to make a request under subparagraph (ii).”. Things will slip by. While there are people who survive well in the community with an elderly relative, even if infirm, there is a subset of individuals who do not survive well and need assistance.
I am not at liberty to accept the amendments. These provisions were the subject of intense discussions between the Department of Health and Children, the Department of Finance, the Revenue Commissioners and the HSE. The strong legal view was that definite timeframes had to be provided for in order that there would be clarity in respect of legal issues arising from Deputy O'Sullivan's amendment.
With regard to amendment No. 49, while it was agreed that every effort would be made administratively to notify an applicant's partner or personal representative and any connected person of the option of further deferral, including a legislative provision would be unwise. This is because it will not always be possible to notify such individuals of their right to seek a further deferral. This is because the individuals concerned will not necessarily be within the health system, in receipt of health services or in any way in contact with the HSE. The HSE will not have the guaranteed capacity to establish whether a person qualifying is a connected person. Taking into account the legal issues, the best we can do is to leave the provisions as contained in the legislation.
I ask the Minister to consider inserting a phrase to the effect that every effort will be made, save in exceptional circumstances.
I will take advice on that point but I am advised that there would be major legal issues involved.
I accept that.
Will Deputy O'Sullivan withdraw the amendment until Report Stage in the light of the Minister's comments?
Amendment, by leave, withdrawn.
I move amendment No. 46:
In page 24, subsection (2)(a)(ii), line 40, to delete “3” and substitute “6”.
More time is needed to consider the issues involved. I will, therefore, return to this amendment on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 47 not moved.
I move amendment No. 48:
In page 24, subsection (2)(a)(ii), line 42, to delete “6” and substitute “12”.
Will the Deputy withdraw this amendment?
I would like to see more time being given to it. I am concerned that if we leave all these issues until Report Stage, we may have a debate which will be guillotined and we may not get to deal with all of them.
With reasonable co-operation, it would not be my intention to have the debate on this important Bill guillotined.
Will the Minister describe what she means by "reasonable co-operation" so as to give us some comfort? Does it mean we should roll over and have our tummies tickled?
If the Deputy wants to keep the debate going all year, that is another matter. I want to have the legislation implemented in the autumn.
No one is interested in keeping the debate going.
We will agree timeframes. The next date set is 26 March and we will leave a reasonable period before Report Stage. As I must revert to the Government on a number of amendments, they are not all in my gift, certainly not those that seek to place a cap on the value of property or deal with siblings. I have much sympathy with the case referred to by Deputy Neville, where someone suddenly becomes incapacitated and does not have a chance to transfer a farm or business. It would be unreasonable to penalise such persons.
Amendment, by leave, withdrawn.
Amendment No. 49 not moved.
I move amendment No. 50:
In page 24, subsection (2)(b)(i), line 46, to delete “have” and substitute “own”.
I am not sure whether this amendment is necessary. I want to clarify the meaning of the word "have". I refer to section 20(2) which reads:
(b) the Executive is satisfied that—
(i) the asset concerned is the residence of a connected person and that such person does not have any other residence;
The word "have" is very loose; there might be a suggestion the person concerned could be living with another relative.
We are trying to provide protection for connected persons such as the sibling to whom I referred. If a person has several residences, he or she will be asked to choose one. This serves to bring clarity to the matter. The amendment would encourage evasion by allowing people to declare multiple residences in order to defer payment of ancillary State support. It would undermine the financial sustainability of the scheme.
As I do not feel as strongly about the amendment as others, I will not press it to a vote.
Amendment, by leave, withdrawn.
Amendments Nos. 51 and 52 not moved.
I move amendment No. 53:
In page 25, subsection (2), between lines 13 and 14, to insert the following:
"(c) and in each case that every person appearing to the Executive to have an interest in the asset concerned consents, subject to subsection (7), to the monies advanced by way of ancillary State support not becoming repayable until the occurrence of a deferred relevant event.”.
This amendment ensures that where a person applying for a further deferral is not the owner of the principal residence, he or she will obtain the consent of the owner of the asset. It will ensure everyone with an interest in the asset is aware of the fact that repayment of ancillary State support has been further deferred. The amendment is necessary because the connected person will not necessarily always be the owner of the asset. In such cases it is good practice to ensure both the connected person and the owner are aware of the further deferral and agree to it.
Amendment agreed to.
I move amendment No. 54:
In page 25, between lines 13 and 14, to insert the following subsection:
"(3) Where the Executive makes a determination that the conditions specified in subsection (2) have been met, the Executive shall, not later than 15 working days after making that determination, give notice in writing of the decision and the reasons for the decision to each person who made the application.”.
Amendment agreed to.
Amendments Nos. 55 to 59, inclusive, are related and will be discussed together.
I move amendment No. 55:
In page 25, subsection (3), line 14, after "means" to insert "a relative of the person and includes".
The definition of connected person is restrictive. Any relative of the deceased living in the family home should be entitled to apply under the section to be allowed to stay and postpone recoupment of the loan until a later date. This would broaden the definition of "connected person".
Amendment No. 56 seeks to insert after "child" the term "or dependent relative". It is self-explanatory.
Amendment No. 58 seeks to delete the words "and such child is less than 21 years of age". If a child is over 21 years of age, he or she may be very much dependent. The child may still be at college or on a very low income, which the provision does not acknowledge. We need to debate this or insert a provision to allow to be considered circumstances other than those allowed for in the Bill covering those in receipt of a disability or similar allowance, blind person's pension and a non-contributory State pension. The limits are very low for someone at the beginning of life. He or she may have been there at 24 or 25 years of age and does not have any capacity to repay a mortgage which must be repaid and to pay the 5% or 15%.
In respect of Deputy O'Sullivan's amendment, that would mean that any child living on the premises, regardless of his or her financial circumstances, could have the repayment deferred indefinitely. That is not desirable. If this is to be affordable and financially sustainable it needs to be clear but it must also be reasonable in respect of so-called connected persons. I intend to bring forward some changes in respect of the connected person to do with siblings and so on. Section 20(3)(b)(v) refers to any person “whose total income is not more than the maximum rate of State pension”. That would cover anybody in education and so on. It covers not only the pension for the blind but also someone who is in college, which is reasonable.
What is the position of adopted children?
They would have the same status for the purposes of this section.
I am reluctant to withdraw the amendment because I am not sure how narrow the Minister will make it. I am trying to achieve an umbrella provision that the person in the family home must be a relative. He or she should at least have the option to make a case to the Health Service Executive that his or her circumstances are such that he or she needs to defer the payment because he or she cannot afford to pay it. Let it be then decided on the basis of that person's circumstances. I accept that the Minister will broaden it to some extent but the range of people who can have the payment deferred is narrow. I can envisage other relatives for whom this is their only home who do not have the disposable income to pay the sum.
Is the Deputy concerned about the reference to the income being above the maximum State pension? We have to put in some threshold. I have sympathy for the Deputy's point. We decided that the payment would be deferred for anybody receiving a State pension or any dependant who has to rely on the support of his or her parents. I have sympathy with somebody who is not well off and whose principal private residence this is. Let me consider that point.
If the person had no other house and would not be able to stay there——
Yes, and the person had always lived there.
The concern is that the Bill is a bit too restrictive and we need more latitude. If the Minister is happy to consider that, I am happy that the amendment be withdrawn.
Is Deputy O'Sullivan happy to withdraw the amendment?
Yes but I will re-submit it to ensure the point is discussed.
Amendment, by leave, withdrawn.
Amendment No. 56 not moved.
I move amendment No. 57:
In page 25, subsection (3)(a), line 16, to delete “was made” and substitute “was made, or the partner of such person,”.
Amendment agreed to.
Amendments Nos. 58 and 59 not moved.
Amendments Nos. 61 and 62 are related to, and consequential on, amendment No. 60. Amendments Nos. 60 to 62, inclusive, will be taken together by agreement.
I move amendment No. 60:
In page 25, subsection (5)(b), lines 37 and 38, to delete “cease to apply, or” and substitute “cease to apply,”.
These amendments ensure that amounts secured against the principal residence will fall due for repayment on the sale or transfer of the asset. This is consistent with the provisions under section 19 in respect of repayment. It is also consistent with the basic objective behind the mechanisms for deferral and further deferral to ensure a person does not have to sell his or her home during his or her lifetime to meet care costs.
Amendment agreed to.
I move amendment No. 61:
In page 25, subsection (5)(c), lines 40 and 41, to delete “ “connected person”,” and substitute “ “connected person”, or”.
Amendment agreed to.
I move amendment No. 62:
In page 25, subsection (5), between lines 41 and 42, to insert the following:
"(d) the transfer of an interest in the asset concerned,”.
Amendment agreed to.
Section 20, as amended, agreed to.
SECTION 21.
Amendments Nos. 63, 68, 69 and 71 are related and will be taken together by agreement.
I move amendment No. 63:
In page 26, subsection (3)(b)(ii), line 32, to delete “has not been revoked” and substitute “has not been cancelled”.
These are technical amendments concerning the appointment of care representatives. Amendment No. 63 is a technical amendment in recognition of the fact that an enduring power of attorney may be set aside in several ways. The term "cancelled" encompasses all of these ways.
Amendment No. 68 seeks to remove any ambiguity from the text of section 21(23). Amendment No. 69 recognises an observation that the care representative will not handle the day-to-day finances of the applicant and therefore does not need to keep accounts. This observation was made on foot of advice from the Courts Service. Amendment No. 71 is a technical amendment correcting a typographical error.
Amendment agreed to.
I move amendment No. 64:
In page 27, between lines 11 and 12, to insert the following subsection:
"(6) The court may appoint more than one person to be a care representative of a relevant person and unless the court otherwise orders the care representatives shall act jointly.".
These amendments are made at the suggestion of the Courts Service. These stakeholders noted that families often wish to share a guardianship role between two or more family members. For example, two siblings could act as a care representative for their parent. This amendment recognises that wish by providing an option for joint representatives to be appointed.
Amendment agreed to.
Amendment No. 66 is an alternative to amendment No. 65. Amendments Nos. 65 and 66 will be taken together by agreement.
I move amendment No. 65:
In page 27, subsection (11), between lines 38 and 39, to insert the following:
"(f) a grandchild of the relevant person;
(g) a grandparent of the relevant person;”.
Deputy Reilly made the point on Second Stage that the Bill does not allow grandparents to act as care representatives. Amendment No. 65 remedies this and includes grandchildren as a category in the list of representatives.
Amendment agreed to.
Amendment No. 66 not moved.
I move amendment No. 67:
In page 29, between lines 7 and 8, to insert the following subsection:
"(21) A person who is a care representative shall cease to be a care representative on the happening of any event specified in subsection (20).”.
While section 21(20) provides that a court shall not appoint a care representative in the event of the items specified at paragraphs (a), (b) and (c) there is no provision dealing with a person who has already been appointed as a care representative and we seek to remedy that.
I am happy to accept this and return to it on Report Stage. The Deputy makes a good point.
Amendment, by leave, withdrawn.
I move amendment No. 68:
In page 29, subsection (23), line 20, to delete "as if that person were the person" and substitute "as if that care representative were the person".
Amendment agreed to.
I move amendment No. 69:
In page 29, subsection (26), lines 32 and 33, to delete all words from and including "to" in line 32 down to and including "actions" in line 33 and substitute "to keep records relating to his or her actions".
Amendment agreed to.
I move amendment No. 70:
In page 30, between lines 13 and 14, to insert the following subsection:
"(30) Where more than one person stands appointed to act as a care representative of a person, the court in hearing the application under subsections (27) or (28) may revoke the appointment as respects one of the care representatives but not as respects the other or others and may appoint another person to be a care representative in place of the person whose appointment has been revoked.”.
Amendment agreed to.
I move amendment No. 71:
In page 30, lines 31 and 32, to delete lines 31 and 32 and substitute the following:
"(32) Applications or proceedings——
(a) under this section, and”.
Amendment agreed to.
Section 21, as amended, agreed to.
Section 22 agreed to.
SECTION 23.
Amendments Nos. 72 and 73 are related and will be taken together by agreement.
I move amendment No. 72:
In page 32, subsection (1), line 15, to delete "48 hours" and substitute "three working days".
I want the provision extended to three working days.
That is reasonable.
Amendment, by leave, withdrawn.
I move amendment No. 73:
In page 33, subsection (4), line 2, to delete "not later than 15 working days" and substitute the following:
"immediately notify by telephone or email, and notify in writing within 3 working days".
As I understandit these are all done monthly. Subject to advice on the practicality of the suggestion I am happy to accept both amendments.
Fifteen working days would not be monthly and we do have e-mail so it is best to let people know as soon as possible.
That would be three weeks. I will accept both of these amendments on Report Stage but I want to check them with the Parliamentary Counsel.
Amendment, by leave, withdrawn.
Section 23 agreed to.
Section 24 agreed to.
SECTION 25.
Amendments Nos. 74 to 77, inclusive, are related and may be taken together.
I move amendment No.74:
In page 33, subsection (1), lines 41 and 42, to delete all words from and including "within" in line 41 down to and including "concerned." in line 42 and substitute the following:
"within 30 days of section 20(2)(a) ceasing to apply.”.
This is a technical amendment which seeks to clarify the responsibility of an applicant's partner as set out in section 25(1). It clarifies that where an applicant's partner obtains a further deferral, the Health Service Executive must be notified if the asset in question ceases to be the principal residence. For example, a person may downsize by selling his or her home and moving to smaller accommodation. Rather than placing a new responsibility on the partner of a deceased applicant, this amendment clarifies the matters which must be brought to the attention of the HSE.
Amendments Nos. 76 and 77, in the name of Deputy O'Sullivan, propose to amend the timeframe for notification of a charge in respect of a connected person from 30 days to three months. However, this timeframe will generally only relate to circumstances where a person has sold his or her principal private residence or has ceased to qualify as a connected person. As such, the timeframe set out in the Bill must be considered in conjunction with the timeframe for notifying Revenue of amounts due for collection.
I think my amendments are self-explanatory. I am simply attempting to extend the timeframe, as I have in respect of other parts of the Bill. I will withdraw my amendments but may resubmit them.
Amendment agreed to.
Amendments Nos. 75 to 77, inclusive, not moved.
Section 25, as amended, agreed to.
SECTION 26.
Amendments Nos. 78, 79, 82 and 83 are related and may be discussed together.
I move amendment No. 78:
In page 34, subsection (1), lines 16 and 17, to delete "to the accountable person" and substitute "to the relevant accountable person".
These amendments, when taken together, clarify who is accountable for the repayment of ancillary State support to the Revenue Commissioners. The first key change is that the next of kin is removed from the list of people accountable for repayment of ancillary State support. This is fair because the next of kin will not necessarily inherit an interest in the asset concerned.
The second key change is that the section is now more specific in regard to who is accountable for repayments in each of the circumstances outlined. Under the existing approach, a situation could arise whereby two categories of people are equally accountable for the repayment of a debt. However, the amendment directly addresses this situation by stipulating how primary and secondary accountability for repayment shall be determined. This will offer greater clarity for individuals and their families when disposing of assets or settling estates. This approach is consistent with that adopted in regard to capital acquisitions taxes.
The amendments also limit the liability of a personal representative or benefactor who is an accountable person under the scheme. The liability of a person who gains an interest in the relevant asset through purchase or inheritance to repay moneys due shall not exceed the value of his or her interest in the asset. The liability of a personal representative shall not exceed the value of the estate less funeral and other expenses. This limited liability is also carried through in a consistent manner in the proposed amendment to section 27.
These amendments appear to benefit the Bill. Amendment No. 83 proposes to deduct funeral expenses before liability is determined.
Expenses arising from the will and other related matters can also be deducted.
Amendment agreed to.
I move amendment No. 79:
In page 34, subsection (3)(e), to delete lines 37 and 38 and substitute the following:
"(iii) the relevant accountable person (if known to the Executive),".
Amendment agreed to.
I move amendment No. 80:
In page 35, lines 23 to 26, to delete subsection (8) and substitute the following:
"(8)(a) The Revenue Commissioners may take all steps which they consider appropriate to recover the repayable amount and interest accrued thereon, including the bringing of legal proceedings in their own name.
(b) In every case where legal proceedings are brought by the Revenue Commissioners pursuant to paragraph (a) the proceedings shall indicate clearly that they are brought pursuant to the Nursing Homes Support Scheme Act 2009.”.
This is a technical amendment which recognises for the purpose of legal certainty and clarity that the Revenue Commissioners will take any proceedings in regard to the scheme in their own name rather than that of the HSE.
We will see whether our legal opinion concurs.
If the Minister slips in something we do not like, we may revisit the matter on Report Stage.
The Deputy should not worry because I am not allowed under Government rules to slip things in.
She is providing for legal action by the Revenue Commissioners. It is a matter which deserves our consideration.
They will take actions on their own behalf. I am advised it is necessary to make this provision.
Are members happy with the amendment?
No, we are not.
We will have to get our own legal advice.
Is the amendment agreed?
We are agreeing that it should proceed.
May we resubmit amendments on the matter on Report Stage?
Yes.
Amendment agreed to.
I move amendment No. 81:
In page 35, subsection (11), lines 43 and 44, to delete "the Central Fund." and substitute the following:
"a designated fund to provide for the nursing home needs of the elderly.".
This amendment will ensure moneys raised through the scheme are ring-fenced for the care of the elderly. We are not happy that they could be used by the Exchequer for other projects, even if these are necessary and worthy.
I cannot accept the amendment. I am not the Minister for Finance and, as such, do not have the capacity to ring-fence moneys for any particular purpose. I am sure any Minister for Health and Children would love to ring-fence all income tax for health purposes but I am not free to accept the amendment.
With due respect, this is not income tax. Specific revenues will be raised from the elderly for the purpose of the care of the elderly. On that basis, the moneys ought to be ring-fenced. I recognise that the Minister may not have it in her gift to agree to the amendment without consulting the Minister for Finance but I am sure she has a wonderful relationship with the latter and could get his agreement. This is an important matter and, as such, I must press the amendment.
I support Deputy Reilly.
To the best of my knowledge, the health levy is the only revenue that is ring-fenced for health. I am not at liberty to agree to ring-fence moneys raised through the scheme, no more than I can put a claim on excise duties on alcohol or tobacco.
I accept the Minister's argument but I ask her to use her good offices to initiate a discussion with the Minister for Finance. If she would agree to my request, I am prepared to withdraw my amendment until Report Stage but otherwise I will feel duty bound to press it.
For the sake of co-operation, I will consider the Deputy's request but I can tell him now that such a discussion will be hopeless. During my 30 years in these Houses, the issue of ring-fencing moneys for this, that and the other has arisen regularly. Deputy O'Hanlon will be more than familiar with the issue. I could fulfil my commitment by putting a request to the Minister for Finance but I must be honest by advising the committee that he will not agree, especially in the context of our present circumstances.
Is it possible to achieve the same end administratively within the HSE? This committee received a commitment from a HSE representative that funding would be ring-fenced.
It is ring-fenced in a subhead in the Vote. This year, we will spend approximately €1 billion on care of the elderly. However, I cannot ring-fence moneys for the health system.
I appreciate the Minister's candour but will press the amendment.
Amendment put and declared lost.
I move amendment No. 82:
In page 35, lines 47 to 49 and in page 36, lines 1 to 11, to delete subsection (13) and substitute the following:
"(13) The person primarily accountable for payment of the repayable amount to the Revenue Commissioners shall be—
(a) the person in respect of whom ancillary State support was paid;
(b) where the person referred to in paragraph (a) is a member of a couple, the partner of that person;
(c) where the person referred to in paragraph (a) is deceased, the personal representative of that person;
(d) in a case where section 20 applies, each person having an interest in the asset;
(e) where a person referred to in paragraph (d) is deceased, the personal representative of that person.
(14) A person who becomes entitled to an interest in the asset against which the repayable amount is secured shall also be accountable for payment of the repayable amount to the Revenue Commissioners.
(15) (a) The liability of a person referred to in subsection (13)(c) or (e) shall not exceed the gross value of the estate of the deceased person concerned less the amount of the funeral and testamentary expenses.
(b) The liability of a person referred to in subsection (14) shall not exceed the amount of the value of the interest in the asset to which the person becomes entitled.
(16) In this section "relevant accountable person" means -
(a) a person who as respects a particular relevant event or deferred relevant event is primarily accountable, and
(b) a person who is accountable by reason of subsection (14),
for the payment of the repayable amount to the Revenue Commissioners.".
Amendment agreed to.
Section 26, as amended, agreed to.
SECTION 27.
I move amendment No. 83:
In page 37, subsection (4), line 6, to delete "shall not exceed the value of the estate." and substitute the following:
"shall not exceed the gross value of the estate less the funeral and testamentary expenses of the deceased.".
Amendment agreed to.
Section 27, as amended, agreed to.
NEW SECTION.
I move amendment No. 84:
In page 37, before section 28, but in Part 5, to insert the following new section:
"28.—(1) Where the monies advanced by way of ancillary State support adjusted in accordance with this Act (together with any interest payable) have been discharged the Executive shall issue a receipt and the receipt shall act as a discharge or release of the order to which it refers and may be registered in the Land Registry or the Registry of Deeds as appropriate.
(2) The Board of the Executive may appoint a person or persons who are employees of the Executive to issue a receipt under subsection (1).”.
Amendment agreed to.
SECTION 28.
I move amendment No. 85:
In page 37, subsection (3), line 41, after "concerned" to insert "for the care of all such joint tenants".
This section is about joint ownership and at the end of it I seek to add the words "for the care of all such joint tenants". The purpose of the amendment is to emphasise that an interest in the family home or lands should be charged only where it is for the benefit of the owner. Therefore if joint owners make an application to the Health Service Executive for their own care, all their interests should be charged. However, the interests of a person not receiving care should not be subject to the charge.
It is not. Only the relevant half of the house is included.
Amendment, by leave, withdrawn.
Section 28 agreed to.
SECTION 29.
I move amendment No. 86:
In page 38, subsection (2), line 12, to delete "a suitable person." and substitute the following:
"an independent third party appointed by the Health Information and Quality Authority.".
That is on the ring-fenced nature. I cannot accept that.
It is not on ring-fencing.
This is the HIQA one. I cannot accept it.
This proposes that an independent third party be appointed by HIQA as opposed to the executive causing a review under this section to be carried out by a suitable person.
We had this discussion at length earlier and the Deputy and Minister are of an understanding on the matter.
What is our understanding?
We had a lengthy discussion on the matter and the Minister set out her stall clearly.
HIQA is a completely different organisation with completely different responsibilities. We have an ombudsman.
I would be prepared to remove HIQA from that and appoint an independent third party, but that person would have to be appointed by somebody independent, not by the HSE because it is not independent. With the best will in the world we keep returning to this theme and the message keeps coming back that we will not have independence but the HSE will call the shots.
We had this debate earlier. Let us not have it again.
I will withdraw the amendment and discuss it on Report Stage because it is key.
Amendment, by leave, withdrawn.
Amendments Nos. 87 to 90, inclusive, not moved.
Section 29 agreed to.
Section 30 agreed to.
SECTION 31.
Amendments Nos. 91 and 92 are related and may be discussed together.
I move amendment No. 91:
In page 40, subsection (1), line 8, to delete "11(1), 29(4)” and substitute “11(1), 16, 29(4)”.
These amendments ensure there is a right of appeal against decisions by the HSE on ancillary State support.
Amendment agreed to.
I move amendment No. 92:
In page 40, subsection (1)(b), line 13, to delete “11(3),” and substitute “11(3),16(16),”.
Amendment agreed to.
I move amendment No. 93:
In page 40, subsection (2), line 16, to delete "it" and substitute "the Minister".
This is about having the Minister rather than the HSE appoint the appeals person.
Does the Deputy mean within the HSE or a new process? I am not open to establishing a whole parallel operation. It would be like the Minister for Social and Family Affairs appointing the appeals officer for social welfare appeals. It would be the norm that the organisation would nominate these individuals. The dispute older people and their families have with the current arrangement is not around the financial assessment. It is around the rules that apply rather than the HSE's interpretation of them. We are not aware of complaints that the HSE has miscalculated or overestimated property or income, rather that it is operating under a very conservative and unsatisfactory subvention scheme. That is the source of many of the complaints.
People are concerned that the person sitting at the desk opposite them, who makes the decision to turn them down, could also take the appeal. I am trying to have somebody who is outside the same atmosphere as the person who originally made the decision.
We will look at it for Report Stage and see if we can bring greater clarity.
That is key. While I heard what the Minister said, we have an opportunity to make good law and provision and avoid conflicts of interest and the perception that the system might be unfair. The Minister said this will be capped and there is a real danger that, being capped, the bar will continually rise to stay within the financial constraints rather than meeting people's needs. People need to be reassured that their appeals will be heard by independent people outside the organisation which heard their applications the first time. While it may not be a major problem, it is like many issues. One gets a diagnosis, treats the original complaint and finds there is a real problem underneath.
I gave a commitment to examine the issue of appeals being heard by the person at the next desk. If the Deputy calls a voice vote I will have to vote against it.
I will not press the amendment but will take the Minister at her word that we will return to it. However, as it is very near the end of the Bill, if there is a guillotine we may not reach it.
I do not envisage a guillotine.
Amendment, by leave, withdrawn.
I move amendment No. 94:
In page 40, subsection (2), line 16, to delete "a suitable person" and substitute the following:
"an independent third party appointed by the Health Information and Quality Authority".
I hope the Minister is getting the message, and I think she is beginning to, that there is deep concern on this side of the House about people's right to independent, third party appeal and verification and that there cannot be any conflict of interest or perceived conflict of interest. If she can achieve that through a route other than HIQA, it will help us in a major way with this Bill. It does not have to be HIQA, but if she can achieve that in some other way it will be of major help to us. As long as there is a perception that the HSE will be judge, jury and hangman, I have a serious problem.
Amendment, by leave, withdrawn.
I move amendment No. 95:
In page 40, subsection (5), line 43, to delete "the appellant" and substitute "a party".
This amendment refers to the text of section 31(5), which reads: "An appeal under subsection (4) shall, where the appellant so requests, be heard otherwise than in public." My concern is that the other person should also be able seek a private hearing. By substituting "a party" for "the appellant", the provision may be applied to either side. The protection of privacy is important for the individual care recipient. Therefore, the care recipient should be entitled to apply for privacy and for non-reporting of the application. However, it is clear that the HSE may appeal to the court in this regard under subsection (4); therefore, under subsection (5), as it is currently drafted, only the HSE would be entitled to request privacy for the hearing of an appeal brought by it, with no such right being given to the recipient of care. I am not sure whether that is the case, but if I am reading it correctly, it is a significant technical error.
That is not our understanding, but if what the Deputy is saying is correct we will change it, because I agree with her. I will take advice in this regard.
Amendment, by leave, withdrawn.
Section 31, as amended, agreed to.
SECTION 32.
Amendments Nos. 96 to 99, inclusive, are related and may be discussed together.
I move amendment No. 96:
In page 41, between lines 11 and 12, to insert the following subsection:
"(2) The Minister shall lay before the Oireachtas how charges for public nursing homes are determined.".
It is important in terms of public confidence that the methodology for determining these charges is laid before the Oireachtas. It may not necessarily be able to vote on it but at least it should be laid there so that everybody knows what is what.
Section 32, subsections (2) and (3) of the Bill already set out the basis for determining such charges in a comprehensive manner. They state that charges may not exceed the cost of care services and the cost of care services may only comprise directly attributable costs and costs prescribed by regulations. In addition, the Attorney General has carefully considered this aspect of the Bill and has advised that it would be sufficient for the HSE to derive a cost for each of its nursing home facilities which can be justified in terms of the various cost components.
That does not give us any transparency, which we need. It is currently very difficult to determine the cost of a bed in a public nursing home versus a private nursing home.
I am talking about the averages; I do not have the——
No, but the averages——
It is only between €1,700 and €1,800 for the new builds, which is not very high.
I am told that includes overall care. The homes provide respite care, which is easy enough to measure, but they also provide day care and outreach services and so on. How do we calculate the actual cost of nursing home care within a particular unit separately from all the ancillary services it delivers?
The amendment would not do any harm. It would not create any legal problems to have the methodology and specific nature of the nursing home services laid before the Oireachtas.
We will be publishing the prices because there must be transparency so that care recipients and their families, or the care representative making a choice, can see what are the different arrangements. The Deputy is saying that this should be laid before the Houses of the Oireachtas. I am happy to reflect on that and come back to this on Report Stage.
Amendment No. 97 is to do with a more general point, which is the whole issue of what is included as care. I raised this in an earlier amendment with regard to chiropody, physiotherapy, and so on. We need to know exactly what the charges will cover. This was raised by the representatives of Age Action in their submission to the committee. The point they made was that in practice, having identified need, the HSE is not obliged to provide goods and services for that need. If 80% of people's income is included in the charges, and if they must pay on top of that for other things, how are they supposed to find the money to do that?
This is an important section, and we need more clarity on what exactly is provided. The Minister said there would be further legislation to do with people's entitlements to health services. This is a crucial section of the Bill, which is why I tried to deal with my concerns under this section. It is a question of whether one is entitled only to one's health care, food and bed or to the other services that are needed, such as physiotherapy, chiropody or occupational therapy. When will we find out? Will it be in this legislation or the other legislation? If this is introduced before the other Bill, which it will be, how will we know who pays for chiropody services, for example?
As I said earlier, the issue of what people, including older people, are entitled to in the community at large is not clear under current law. The 1970 Health Act does not define eligibility in a clear fashion. More services are being rolled out in the community, as opposed to acute hospitals. This is one of the reasons our acute hospitals are under so much pressure. Services are provided there basically free of charge, while there is a different regime in the community. Great legal clarity must be brought to the whole issue of eligibility and entitlement, and the intention is to publish legislation and enact it as soon as we can. It will be a complex and comprehensive piece of legislation. When the National Treatment Purchase Fund procures nursing home care under this Bill, when it is enacted, it will be securing it on the basis of bed and board, and the 80% refers to that figure. Most elderly people in nursing home care — the vast majority, in fact — have a medical card that entitles them to other services. Some elderly people need speech and language therapy, physiotherapy or chiropody. All of these are separate matters. They are not part of the charge here. To include them would probably make the care more expensive, and it would be prohibitive for many people.
The Minister said she would reflect upon the amendment, so I will withdraw it.
I am not sure whether the Minister is reflecting on amendment No. 97, but assuming she meant she would consider all of this, I will withdraw it.
I will consider amendment No. 99 and come back on Report Stage. Deputy Reilly makes a reasonable case for his amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 97 to 99, inclusive, not moved.
Amendments Nos. 100 and 101 are related and may be discussed together.
I move amendment No. 100:
In page 41, after line 45, to insert the following subsections:
"(6) The Minister shall ensure that any person to whom charges under this section may accrue shall have their care needs assessment, as may be required under this Act, prioritised by the Executive.
(7) The Minister shall ensure that any person who is awaiting their care needs assessment, as may be required under this Act, shall not be subject to any charges arising under this section.".
It was suggested in the past that charges would apply to people who had been medically discharged from the acute phase of their treatment in a hospital. We all hope we will be living in a wonderful paradigm, but the reality is that we are severely strapped for cash due to the economic downturn, and the health services are stretched. I can perceive a possibility that if people are left lying in a hospital bed awaiting the assessment and report, they will be subject to charges through no fault of their own, which is neither equitable nor fair. That is why I am attempting to have these subsections included. I want to ensure the onus is put on the assessment team to perform quickly so that people do not incur charges needlessly. I can understand the original rationale, which was based on the possibility that people would avoid long-term care due to the cost and refuse to move from a hospital bed. However, we need to provide a balance.
Amendment No. 101 seeks to achieve something similar. These are people who are in acute hospitals and have nowhere else to go. The amendment seeks to ensure that if they have nowhere else to go, they would not be subject to charges.
That is already provided for. The aim is to avoid a situation where someone in an acute hospital is offered several options and continually refuses to go. The charge does not apply where one is waiting either for an assessment or a facility. However, I will reflect on the points made to bring greater clarity to the legislation. When a patient's phase of acute care has finished, it is not intended to start charging him or her. That would be grossly unfair if a nursing home facility was not available or if one had not been assessed. The idea is to avoid the situation mentioned by Deputy Reilly where some people may decide never to opt for long-term care which could completely clog up the acute hospital system.
I accept that and it is a major problem. That is part of a broader political debate. Will the Minister bear in mind one caveat? Let us consider the case, with which I am familiar, of a person from Rush in a bed in Beaumount Hospital who was offered a bed in a facility in Portlaoise. That is not reasonable or fair. It is not that there is anything wrong with the facility in Portlaoise, it is simply too far away from family and friends.
Amendment, by leave, withdrawn.
Section 32 agreed to.
Amendment No. 101 not moved.
Section 33 agreed to.
Amendment No. 102 not moved.
Section 34 agreed to.
SECTION 35.
I move amendment No. 103:
In page 43, between lines 18 and 19, to insert the following subsection:
"(2) (a) The Minister may make regulations for the purposes of subsection (7) of section 7 by prescribing the manner in which care assessments are to be made by the Health Information and Quality Authority and the process through which such care assessments are administered by the Health Information and Quality Authority.
(b) Any regulations made under paragraph (a) shall be reviewed every three years from the date on which they take effect.”.
We are back to the argument about the need for independence. Many of our concerns could be addressed. It need not be HIQA which simply springs to mind as an obvious choice, but we must have independence in assessments and appeals.
Does the Deputy intend to withdraw the amendment?
I will but will resubmit it. I hope the Minister can use all the ingenuity at her disposal in her vast Department to come up with a solution.
The two women concerned are worn out working on the Bill.
They are working very hard.
Amendment, by leave, withdrawn.
I move amendment No.104:
In page 44, lines 42 to 49, to delete subsection (8).
The amendment seeks to have subsection (8) deleted.
Unfortunately, I cannot accept the amendment. The Attorney General insisted on the insertion of this provision in the legislation.
Let us go through it to see the truth of that statement. According to the subsection, the Minister may, in respect of any difficulty which arises during the period of three years from the commencement of section 5in bringing the Bill into operation, by regulations, do anything which appears to be necessary or expedient for bringing the Bill into operation and regulations under the subsection may, in so far only as may appear necessary for carrying the regulations into effect, modify a provision of the Bill if the modification is in conformity with the purposes, principles and spirit of the Bill. We have sought in this section——
It is because of the technical nature of the Bill that the Attorney General insisted on its inclusion. Clearly, any regulations made could be annulled by the Oireachtas. Regulations are not made privately and secretly.
Does that mean they will not be made by ministerial order?
A motion can be brought before the House within 21 sitting days to have such regulations annulled. If the Deputy wishes, I would be pleased to insert a suitable amendment on Report Stage. The subsection provides for some of the technical complexities which may arise such that we need to give ourselves some enabling provisions. I understand it is not unusual in such legislation to have such a provision.
For the purposes of clarity, as I am not trying to make the Minister's life more difficult——
Regulations will be made. If the Deputy wishes to have them approved, I would be pleased to do so.
That would be perfect.
We will introduce an amendment on Report Stage. The next part of the legislation states the Minister shall lay regulations before the Houses of the Oireachtas and such regulations shall not be made unless a resolution approving them is passed.
It is already provided for. Perhaps the Deputy is worrying unnecessarily.
Amendment, by leave, withdrawn.
Section 35 agreed to.
NEW SECTION.
I move amendment No. 105:
In page 45, before section 36, to insert the following new section:
36.—Section 3 of the Consumer Credit Act 1995 is amended in subsection (2) by the insertion after paragraph (e) of the following paragraph;
"(ea) payments of ancillary State support advanced by the Health Service Executive under the Nursing Homes Support Scheme Act 2009,”.”.
This is a consequential amendment included on foot of legal advice received from the Attorney General.
Is this related to the Consumer Credit Act?
Yes.
Is it protecting people or is it restrictive?
Will the Minister explain precisely the intention of the new section?
We are not annulling anything contained in the Consumer Credit Act by including this section. We are simply saying the HSE will not take on responsibilities in respect of credit arrangements or advertising credit rates or such matters. That is not its role. Deputies should remember that we are getting involved in a new financial scheme and that responsibilities for credit related issues rest with other authorities.
We will resubmit the amendment and can seek legal advice on the matter.
It is the Minister's proposal. There is no need for the Deputy to withdraw it.
The section states there are provisions in the Consumer Credit Act indicating where responsibility lies for major credit issues. It is not for the HSE to take on such responsibilities in respect of this financial scheme.
Amendment agreed to.
Sections 36 and 37 agreed to.
SECTION 38.
I move amendment No. 106:
In page 46, line 2, to delete "a person" and substitute the following:
"a division of the Department of Health and Children".
The legislation states the Minister shall, as soon as is practicable, by notice in writing designate a person to negotiate with persons carrying on the business of a nursing home for the purposes of reaching an agreement referred to in paragraph (a)(ii) or (b)(ii) of the definition of “approved nursing home”. I am seeking to have the phrase “a person” replaced with “a division of the Department of Health and Children”.
I do not believe we have the expertise to negotiate with individual nursing homes on the price of beds. The National Treatment Purchase Fund has built a terrific track record. It is independent of the HSE and separately funded, directly from the Department. We do not seek to have a situation where the provider of the resource, the HSE, would also be the negotiator of prices. Many private nursing homes argue that they are not treated as fairly by the HSE. It is an independent body, rather than the body which supports the care recipient financially.
The Minister uses the term "a person". Could we use the term "a body"?
I will check that for the Deputy. Apparently, a person is a body.
A person is an individual.
The law is very funny in Ireland. Often it is not as compatible with the English language as we would wish. However, I will clarify the matter with the Parliamentary Counsel.
I withdraw the amendment with a view to the Minister reflecting on the matter.
Amendment, by leave, withdrawn.
Section 38 agreed to.
SECTION 39.
Amendments Nos. 107, 108 and 109 are related and consequential and will be discussed together.
I move amendment No. 107:
In page 46, subsection (1)(b), line 32, to delete “and”.
The amendment gives the National Treatment Purchase Fund the power, if it wishes, to examine the accounts of individual nursing homes. As such, it ensures the fund is legislatively supported in its role in seeking a fair price for nursing home care which represents value for money for the taxpayer and guards against price collusion and cartel behaviour. Above all, we wish to substantiate the price being charged and to ensure the fund can have access to the accounts, if necessary.
Amendment agreed to.
I move amendment No. 108:
In page 46, line 43, to delete "as it considers appropriate."." and substitute the following:
"as it considers appropriate.", and".
Amendment agreed to.
I move amendment No. 109:
In page 46, subsection (1)(b), between lines 43 and 44, to insert the following:
"(iii) by inserting after paragraph (2) the following paragraph:
"(3) In performing its functions under paragraph (1)(ba) the Board may examine the records and accounts of an approved nursing home or of a nursing home the proprietor of which proposes to enter into arrangements under paragraph (1)(ba).”.”.
Amendment agreed to.
Question proposed: "That section 39, as amended, stand part of the Bill."
I do not agree. I do not know if we will have time to discuss this. If there is no guillotine I am quite prepared to discuss it in the Dáil Chamber.
Question put and agreed to.
Section 40 agreed to.
SECTION 41.
Amendment Nos. 110 and 112 are related.
I move amendment No. 110:
In page 47, subsection (2), line 33, to delete "the provision of ancillary support" and substitute "the provision of ancillary State support".
These are technical amendments to address minor typographical errors in the Bill.
Amendment agreed to.
I move amendment No. 111:
In page 47, lines 34 to 38, to delete subsection (3) and substitute the following:
"(3) The liability of any member of a relevant couple in respect of any monies due under this Act in respect of care services or ancillary State support shall not be affected by any lack of capacity on the part of—
(a) the person to whom the services were supplied or in respect of whom ancillary State support is paid, or
(b) the partner of such person.”.
Amendment No. 111 clarifies section 41 of the Bill. Section 41 stipulates the responsibility to contribute to the cost of one's care services regardless of mental capacity. As such, it reflects the common law principle of contracting for necessaries.
The second amendment to section 41 clarifies the fact that this responsibility applies not only where the care recipient lacks capacity but also where his or her partner lacks capacity.
Amendment agreed to.
Section 41, as amended, agreed to.
SECTION 42.
Amendment No. 112 was discussed with amendment No. 110.
I move amendment No. 112:
In page 48, subsection (4)(b), lines 21 and 22, to delete “has or had in any interests in” and substitute “has or had any interests in”.
Amendment agreed to.
Section 42, as amended, agreed to.
SECTION 43.
I move amendment No.113:
In page 49, subsection (11), lines 27 and 28, to delete all words from and including "to" in line 27 down to and including "section 31(2)” in line 28 and substitute the following: “to the Executive, a suitable person, or a person appointed under section 31(2)”.
This amendment ensures the definition of "relevant information". Section 43 is comprehensively drawn so as to include suitable persons, as defined in the Bill. This is important as section 43 sets out the responsibilities of officials when dealing with records and information under the scheme. Many of the officials administering the scheme will fall under the definition of a "suitable person" and it is important they are beyond doubt, subject to the provisions of section 43.
Amendment agreed to.
Section 43, as amended, agreed to.
Sections 44 to 46, inclusive, agreed to.
SCHEDULE 1.
Amendments Nos. 114 to 116, inclusive, are out of order due to potential charges on the Revenue.
I do not understand how amendment No. 114 becomes a charge. I want to look at it. Money is repayable under the nursing home repayment scheme.
Anybody who is currently in care cannot be adversely affected by this Bill. Deputy Reilly may be trying to deal with a situation whereby somebody currently in care has received money under the repayment scheme. Clearly he or she cannot be adversely affected by any provisions in this Bill. Regarding income, there is a disregard of €36,000 for an individual and €72,000 for a couple, which is a higher level than it has been for many years. I do not know if that helps to clarify the situation. The repayments would not apply to people in the future; they apply to people who are in care now or have been in the past.
Could the Minister repeat that?
I think the Deputy may be trying to deal with the situation where somebody is currently in public care, because the people involved are those who were in public care. In terms of their care, 90% of it is paid. That cannot be changed under this Bill and that situation will continue. Does the Deputy understand?
I do.
I do not envisage people in that situation would apply under this scheme because they are already in what is broadly called a free bed. They are the only people alive who would have the repayments. Anyone who has not yet gone into care would not be in a situation like that.
What about those who want to opt out of that into the new scheme?
I cannot see who would want to do that, in terms of the cost.
There is an issue around exceeding one acre. People are living on small holdings on two or three acres in the country. An acre is a lot of land in an urban area but not in a rural area. The Minister might look at having a small amount of flexibility on that, even though it has been ruled out of order.
I will not repeat what my official said about an acre. I am from the country and I understand acres. We are talking——
Let us go European and call it a hectare.
We are talking about the house and the land that surrounds it. I will look at the issue. I understand the point the Deputy is trying to make.
There are workers' cottages which stand on more than an acre.
It has been ruled out of order. The Minister has said she will look at it on Report Stage.
That is fine.
I do not want to exclude one acre in Dublin 4, for example, or even one acre in north Dublin.
A person could have an acre but he or she may not be able to dispose of it.
I understand the point the Deputy is trying to make. I do not want to be unreasonable.
Amendments Nos. 114 to 116, inclusive, not moved.
Schedules 1 and 2 agreed to.
Title agreed to.
I thank the Minister and her officials for their time and assistance. I thank all the members for their co-operation. We got through this surprisingly quickly and I am grateful to everyone for their co-operation.
I thank the Chairman and the members of the committee. I have pencilled in a full day on 26 March for the committee which will give us more time on Report Stage. I grateful to everybody for their co-operation.
Bill reported with amendments.