a) General Summary
The Nursing Homes Support Scheme (also described as the so-called “Fair Deal”) provides financial support to people in need of long-term nursing home care. The scheme is operated by the Health Service Executive (HSE) and replaces the old Nursing Home Subvention Scheme as and from 27th October 2009. The statutory basis for the Nursing Homes Support Scheme is the Nursing Homes Support Scheme Act 2009, which was signed into law on 1st July 2009. Under this scheme, the applicant makes a contribution towards the cost of his/ her care in the nursing home (the level of which is determined in accordance with the criteria laid down in the Act of 2009) and the State pays the balance of the cost of the applicant’s care.
Anyone who is ordinarily resident in the State and is assessed as needing long-term nursing home care can apply for the scheme. Existing nursing home residents in receipt of Nursing Home Subvention as of 27th October 2009 can choose to continue to receive their existing subvention or can move to the Nursing Homes Support Scheme. Applications under the new Scheme can only be made as and from 27th October 2009. The scheme covers long-term nursing home care only. It does not cover short-term care such as respite care, convalescent care or day care although these types of services may be provided in some nursing homes. The Act defines “long-term residential care services” as maintenance, health and personal care services. The Department of Health and Children has further clarified that this includes: bed and board, nursing and personal care appropriate to the level of care needs of the person, laundry service, and basic aids and appliances necessary to assist a person with the activities of daily living. Other goods and services may be available under schemes such as the Medical Card or Drugs Payment Scheme.
The Nursing Homes Support Scheme is administered by the HSE and is resource capped, i.e. there is a set level of funding for the scheme each year, so there may be situations where a person’s name must go onto a waiting list until funding becomes available. If this is the case the HSE will let the applicant know when it writes to advise the applicant whether the applicant is eligible to participate in the Scheme.
Moving from hospital care to long-term care: If the applicant is in hospital, but no longer needs acute care, the applicant can be charged for long-term care in that hospital. If the applicant is waiting to move from hospital to long-term nursing home care, the applicant should apply for the NHSS scheme as soon as possible. The applicant will not be charged if he/ she is on a waiting list for the NHSS or if the applicant has particular needs and there is no suitable accommodation available or if there is no suitable accommodation nearby.
(b) Summary of the Nursing Homes Support Scheme Act 2009
The Nursing Homes Support Scheme 2009 establishes the Nursing Home Support Scheme, which is established for the purpose of giving financial support under in respect of care services out of the resources allocated to the Scheme in each year in accordance with the resources allocated to the scheme by the Oireachtas in each financial year and shall consist of the provision of financial support in respect of care services for the purposes of and in accordance with the provisions of the Act of 2009 (s.5). The Scheme is operated by the HSE (s.5(4)). The Scheme shall be operated in accordance with the following principles: that the applicant who are determined by the Executive to need care services in accordance with shall be informed of the names and addresses of all relevant facilities and approved nursing homes and that subject to section 12 (2) of the Act of 2009 and subject to the availability of a long-term residential care bed, the applicant may select the relevant facility or approved nursing home in which to receive care services (s.5(5)(a) and (b)).
The Act of 2009 provides for two types of application for State support: the general application for State support (Part 2) and the application for Ancillary State Support (Part 3). Broadly speaking, Part 2 of the Act of 2009 allows qualified applicants to apply for State support under the Scheme and successful applicants will be required to pay an ongoing financial contribution towards the cost of their care the level of which will be assessed in accordance with the criteria laid down by the Act of 2009. Part 3 of the Act of 2009 is optional and provides for an application for ancillary State support and this allows applicants who have successfully applied for State support under Part 2 of the Act of 2009 to, in effect, defer paying financial contribution towards the costs of their own care until their death in consideration of the applicant allowing the creation of a charge in the nature of a mortgage in favour of the HSE over any chargeable assets the applicant owns specified in the application for ancillary State support.
(c) Part 2: Application for State Support
The categories of persons who may make an application under the Scheme are set out in s.6 of the Act of 2009 and s.6 provides that persons who are ordinarily resident in the State:
(a) in respect of whom an application for a care needs assessment has been made;
(b) in respect of whom the HSE has determined under section 7 (8)(a) that the person needs care services;
(c) who, on the coming into operation of this paragraph, is being provided with care services by the HSE or on behalf of the HSE;
(d) who, on the coming into operation of this paragraph, is being provided with care services by an approved nursing home.
may make an application under the Scheme. A person may not make an application for, or receive, State support unless the person is a person to whom s.6 applies (s.6(2)).
First step in the process: an application for a Care Needs Assessment (s.7). The Care Needs Assessment identifies whether or not the applicant needs long-term nursing home care as defined by the Act, that is, whether the applicant can be supported to continue living at home or whether long-term nursing home care is more appropriate.
It is important to note that an application for a care needs assessment may be made on behalf of an applicant by a “specified person” as defined by s.47 of the Act of 2009 where:
(a) a person ordinarily resident in the State may need care services, and
(b) that person, by reason of ill-health, a physical disability or a mental condition, is unable to make an application for a care needs assessment.
Section 47(7) of the Act of 2009 defines a “specified person” as:
(a) where the person is a ward of court, the Committee of the Person of the ward, duly authorised in that behalf,
(b) a person appointed by a relevant person to be his or her attorney under an enduring power of attorney and the attorney is not prohibited or restricted by the terms of the power from performing any matter to which this section applies, and the enduring power of attorney has been registered and the registration has not been cancelled.
(c) a care representative appointed pursuant to an application under section 21 of the Act of 2009,
(d) where the person is a member of a couple, the other member of the couple,
(e) a relative of the person who is not less than 18 years of age,
(f) a next friend appointed by a court,
(g) a legal representative of the person, or
(h) a registered medical practitioner, a registered nurse or registered social worker.
Section 47(8) provides that the categories of person who may act as a specified person referred to in paragraphs (a), (b) and (c) above shall have priority over the categories of person referred to in paragraphs (d) to (h) above but a person referred to in paragraphs (a) to (c) above may consent in writing to a person with lesser priority acting as a specified person.
Section 47 provides that a specified person may act on behalf of another person in relation to any matter under this Act, including, but not limited to, any application, appeal, review or the giving of consent under section 7 (13), where that other person is not of full mental capacity. However, it should be noted that the HSE is specifically empowered to refuse to deal with specified persons in the following circumstances:
• The HSE may refuse to deal with a person purporting to be a specified person acting on behalf of a person to whom an application for State support relates (the relevant person) unless the first-mentioned person satisfies the HSE that the first-mentioned person is in fact a specified person acting on behalf of the relevant person (s.47(2)).
• The HSE may refuse to deal with a specified person in respect of a relevant matter if the HSE is not satisfied that the specified person is acting in the best interests of the relevant person in respect of that matter (s.47(4)).
• Where a person purporting to be a care representative has not in fact been appointed as a care representative in accordance with the Act (s.47(9)).
The care assessment: this involves an assessment of the applicant’s level of dependency and will be carried out on behalf of the HSE by a doctor, nurse, occupational therapist or physiotherapist. The assessment may involve interviewing the person and the person’s nearest relatives. The person’s medical condition is taken into account and the assessment also includes an evaluation of the person’s ability to carry out the tasks of daily living and of the level of social support available to the person. Section 7(6) provides that a care needs assessment of a person shall comprise an evaluation of the person’s ability to carry out the tasks of daily living, including:
• Degree of mobility
• Ability to dress unaided
• Ability to feed unaided
• Ability to communicate
• Extent of orientation
• Level of co-operation
• Ability to bathe unaided
• Quality of memory
• Degree of continence.
The assessment shall also include the following:
• Housing conditions
• The number of people in the household
• The ability of the household members (if any) to care for the person
• The extent of support from the community and the services the person is receiving.
A care needs assessment may include an examination of the person concerned by, as appropriate, a registered medical practitioner, a registered nurse, an occupational therapist or a chartered physiotherapist, or any combination thereof. (s.7(7)).The person carrying out the assessment compiles a report on the person’s level of dependency. This report must make a recommendation on how the person’s need for care should be met. For example, it may recommend that the person’s need for care could be best met by staying in his/ her own home or by going into a nursing home. The report is then considered by an assessment team that is appointed by the Health Service Executive (HSE) and includes people with professional experience in the care of dependent people. This team makes the decision on whether or not the person meets the dependency requirements for a nursing home subvention and whether the person should be offered accommodation in an approved HSE facility.
Section 7(8) provides that where the HSE receives a care needs assessment report in respect of a person, it shall, after considering the report as soon as practicable after its receipt, make a determination:
(a) that the person needs care services, or
(b) that the person does not need care services,
as it thinks appropriate in the circumstances of the case and where the HSE determines that the person needs care services, the HSE may also make a determination that it is unlikely that the person will ever cease to require care services during the person’s lifetime.
Once a decision is made, the applicant will be notified in writing within 10 working days. The applicant will be given a copy of the care assessment report and the reasons for the decision (s.7(9)+(10)). The content of a care needs assessment report may be provided to a relevant facility or approved nursing home with the prior consent of the person who is the subject of the report (s.7(13)). The applicant must be assessed as needing nursing home care in order to be eligible for either State support or the Nursing Home Loan. The HSE may use the Care Needs Assessment to identify other health or personal social service needs: however, there is no legal requirement for them to provide the services so identified (s.7(11)).
Review of unsuccessful care assessment: Section 8 sets out the circumstances where an unsuccessful applicant’s care needs assessment can be reviewed. This can be done six months after a previous assessment or earlier if (a) the HSE is satisfied that there has been a material change in the individual’s health or circumstances or (b) a registered medical practitioner states that in his/her opinion there has been a material change in the individual’s health or circumstances.
The second step in the process: a Financial Assessment of the applicant’s means (s.10). Where the HSE receives an application for State support, the HSE shall make arrangements for a financial assessment of the person to be made by a suitable person who shall prepare and furnish a report on such assessment to the HSE (s.10(1)). The financial assessment shall be carried out—
(a). 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 of the Act of 2009, and
(b). in the case of a person who is a member of a couple, in accordance with the provisions of Parts 2 and 3 of Schedule 1 of the Act of 2009.
The Financial Assessment may include requests for information from, and interviews with, the person concerned, the person’s partner or any representative (whether a duly appointed care representative or otherwise) of the person. The Executive and the suitable person concerned may request, receive and consider records and information relating to the person to whom the application relates and his or her partner whether received pursuant to section 45 of the Act of 2009 or otherwise. Where information requested by the HSE is not furnished by or on behalf of the person or the person concerned within 40 working days from the date of the request, or such longer period as the HSE permits in any particular case, the suitable person concerned may report such fact to the HSE which may refuse to consider or further consider the application (s.10(7)).
The Financial Assessment will take into account all of the applicant’s income and assets, less allowable deductions. In the case of a member of a couple, the assessment will be based on half of the couple’s combined income and assets. For example, if a couple’s income was €600 per week, the assessment of the person needing care would be based on 50% of €600, or €300. In other words, the person needing care would be considered to have a total income of €300 per week. Income includes any earnings, pension income, social welfare benefits or allowances, rental income, income from holding an office or directorship, income from fees, commissions, dividends or interest, or any income which the applicant has deprived himself/ herself of in the 5 years leading up to the application.
An asset is any material property or wealth, including property or wealth outside of the State. Assets are divided into two distinct categories, namely cash assets and relevant assets. Cash assets include savings, stocks, shares and securities. Relevant assets include all forms of property other than cash assets, for example a person’s principal residence or land. In both cases, the assessment will also look at assets which the applicant has deprived himself/ herself of in the 5 years leading up to the application. The assessment will not take into account the income of other relatives such as children.
Farm, Land or a Business is assessed where the applicant for subvention owns or has a legal or beneficial interest in the Farm, Land or Business. The income from a farm or business is calculated on the basis of the previous year’s accounts if they are available. If they are not, a notional assessment is made of the income. In the case of a farm where there is an income but where accounts are not available for the previous financial year the total farm income, including headage payments, grants, rental income, etc. will be assessed, less current farm expenditure. Where the farm or business is not being used, a notional income may be assessed, as above, but which also takes account of the capital value of the land or business.
Deductions: In relation to income, the following deductions are allowed:
• Income tax, social insurance contributions and levies actually paid
• Where a person owns their principal residence, interest on loans for the purchase, repair or improvement of the principal residence.
• Where a person rents their principal residence (i.e. is living in rented accommodation), rental payments in respect of the residence can be deducted where the person’s partner or a child aged under 21 of the couple lives in the residence.
• Health expenses allowable for tax purposes, excluding contributions payable under the Nursing Homes Support Scheme.
• Maintenance payments in respect of a child, spouse or former spouse made under a separation agreement or a court order.
In the case of assets the net value of the asset is assessed, that is, its value minus any borrowings incurred specifically for the purchase or improvement of the asset.
The applicant’s contribution to care: Having looked at the applicant’s income and assets, the Financial Assessment will work out the applicant’s contribution to care. There are safeguards built in to the Financial Assessment which ensure that:
• nobody will pay more than the actual cost of care
• the applicant will keep a personal allowance of 20% of his/ her income or 20% of the maximum rate of the State Pension (Non-Contributory), whichever is the greater
• if the applicant has a spouse or partner remaining at home, they will be left with 50% of the couple’s income or the maximum rate of the State Pension (Non-Contributory), whichever is the greater. A couple is defined as a married couple who are living together. It also includes a heterosexual or same sex couple who are cohabiting as life partners for at least 3 years.
(d) Amount of contribution that a successful applicant will be required to make towards the cost of his/ her nursing home care
The applicant will contribute the following amount towards his/ her own care:
• 80% of the applicant’s income (less deductions below) and
• 5% of the value of any assets per annum.
However, the first €36,000 of the applicant’s assets, or €72,000 for a couple, will not be counted in the Financial Assessment. Where the applicant’s assets include land and property, the 5% contribution based on such assets may be deferred and paid to Revenue after the applicant’s death. This is known as the “Nursing Home Loan” and is provided for in Part 3 of the Act of 2009.
The applicant’s principal residence will only be included in the financial assessment for the first 3 years of the applicant’s time in care. This is known as the 15% or ‘three-year cap’. It means that the applicant will pay a 5% contribution based on the applicant’s principal residence for a maximum of three years regardless of the length of time the applicant spends in nursing home care. In the case of a couple, the contribution based on the principal residence will be capped at 7.5% where one partner remains in the home while the other enters long-term nursing home care, that is, the ‘three-year cap’ applies. If the applicant opts for the Nursing Home Loan in respect of his/ her principal residence, the applciant’s spouse or partner can also apply to have the repayment of the Loan deferred for their lifetime. If the applicant has already been in a nursing home for 3 years, then you do not pay the 5% on your principal residence.
After 3 years, even if the applicant is still in receipt of long-term nursing home care, the applicant will not pay any further contribution based on the principal residence. This ‘three-year cap’ applies regardless of whether the applicant chooses to opt for the Nursing Home Loan or not. All other assets will be taken into account for as long as the applicant remains in care. The ‘three-year cap’ also extends to farms and businesses in certain circumstances.
Where an applicant sells his/ her home: If an applicant sells his/ her home, the proceeds may be taken into account in the assessment of the applicant’s means for a nursing home subvention. (There is a social welfare rule that allows the proceeds of a house sale to be disregarded in certain circumstances. This does not apply to the nursing homes subvention means test)
Summary table for 5% yearly contribution re assets
Asset 5% per year 3 year cap Option to take up Nursing Home Loan Option to further defer
Chargeable asset Yes No Yes, if they are a land-based asset in the Irish State.
Otherwise no. No
Principal Private Residence Yes Yes Yes Yes
Farm/Relevant Business Yes Yes (but certain qualifying criteria) Yes, if they are a land-based asset in the Irish State. No
(e) Circumstances in which an application for support under the Scheme may be refused
The HSE may refuse to grant an application if either of the following apply:
• if the applicant’s principal residence is valued at €500,000 (for properties in the Dublin area) and €365,000 (for the rest of the country) and the applicant’s income is greater than the basic rate of State Pension (Non-Contributory) or
• the value of the applicant’s assets (excluding his/ her home) is greater than €36,000.
(f) The maximum level of contribution that an applicant will be required to pay
Since 1 January 2007 there is one “maximum” weekly rate of subvention. (Up to December 2006 there were 3 rates of subvention related to the assessed level of dependency). The maximum weekly subvention rate is €300.
(g) Payment of contribution
The manner of payment of an applicant’s assessed contribution is governed by s.12 of the Act of 2009.
Where the applicant is placed in a Public Nursing Home: The applicant’s assessed contribution is paid to the HSE.
Where the applicant is placed in a Private Nursing Home: The applicant pays the assessed contribution directly to the nursing home and the HSE pays the balance of the cost of care to the private nursing home (s.12(1)(b)).
A person applying for State support or making a request for payment of ancillary State support shall not be entitled to receive such support and the HSE shall not be obliged to pay or continue to pay such support unless the care services in relation to which the person is seeking payment have been identified by the care needs assessment as being appropriate to the person receiving care services.
(h) Part 3: Application for Ancillary State Support
This is the so-called “Nursing Home Loan” provision. Ancillary State Support is defined as monies advanced by the Executive by way of loan in accordance with Part 3. Ancillary State support may be paid to a person who (a) has made an application under Part 2 of the Act of 2009 (b) in respect of whom a financial assessment has been carried out and (c) unless the HSE otherwise determines, with effect on and from, but not prior to, a determination by the HSE that ancillary State support be paid in respect of such person (s.16(1)). Ancillary State support shall not be paid to or in respect of a person unless that person (or a care representative of such person) requests that such ancillary State support be paid (s.16(3)(a)). Where the person in respect of whom a request for payment of ancillary State support is made is a member of a couple, the request for payment of such ancillary State support shall be made by both members of the couple (or a care representative of such person) (s.16(3)(b)).
The request for payment of ancillary State support shall be made in the specified form which form shall incorporate an acknowledgement that payment of ancillary State support results in the creation of a charge in favour of the Executive (which by virtue of this Act is deemed to be a mortgage made by deed) against the interest of the person to whom the payment relates and of the partner of that person in such land as is specified in the request for payment of ancillary State support (s.16(4)). The HSE may make payment of ancillary State support to or in respect of a person by reference to the assessed weekly value of relevant assets which are chargeable assets and the HSE may not make payment of ancillary State support in relation to an asset which is not a chargeable asset comprised in the assessed weekly value of relevant assets of the person concerned (s.16(5). The monies advanced by the HSE by way of ancillary State support shall be advanced on the basis of weekly instalments (s.16(7)(a)) and the amount of such weekly instalment in relation to a person shall not exceed that part of the annual assessed relevant assets amount relating to the chargeable assets of that person divided by 52 (s.16(7)(b)).
It shall be a condition of the payment of ancillary State support that the monies advanced by the HSE in respect of such support shall not become repayable prior to the occurrence of a relevant event or a deferred relevant event. A “relevant event” is defined by s.19 of the Act of 2009 as follows:
(a) the death of the person concerned who is receiving care services,
(b) the transfer of any part of the interest in a charged asset of any person who has requested the payment of ancillary State Support,
(c) the adjudication as a bankrupt of—
(i) the person in respect of whom the payment of ancillary State support was made, or
(ii) the person who as partner of the person referred to in subparagraph (i) also requested payment of ancillary State support,
(d) a determination by the Executive that information given to it by or on behalf of a person who has requested payment of the ancillary State support concerned is false or misleading in a material particular the effect of which is, in the opinion of the Executive, to jeopardise the enforceability of the charge referred to in section 17 . The HSE shall not make such a determination unless it has given reasonable notice to each person who requested payment of ancillary State support and given such persons a reasonable opportunity to make representations in relation to the matter.
Section 20 allows for certain specified individuals who are connected to the person in receipt of State support to avail of one further deferral of the repayment of the amount of Ancillary State support provided on the basis of the inclusion of the person’s home. The individuals who can avail of this section are:
the spouse or co-habiting partner of the person in respect of whom Ancillary State support was paid.
a child (under 21) of the person in respect of whom Ancillary State support was paid,
a relative (as defined) of the person in respect of whom Ancillary State support was paid:
❍ in receipt of a disability or similar allowance,
❍ in receipt of a blind person’s pension,
❍ in receipt of the State Pension (Non-Contributory),
❍ in receipt of any equivalent allowance or pension from outside
of the State,
❍ whose sole income is not more than the maximum rate of
the State Pension (Non-Contributory),
a relative of the person in respect of whom Ancillary State support was paid who is the owner of a building to which the home is attached.
These individuals can only avail of this section if:
the property to which the charging order is attached is their only residence,
they have lived there for not less than 3 years immediately preceding the date of making the request for Ancillary State support,
they do not have an interest in any other residential property,
the application is made not later than 3 months after the death of the person in receipt of care.
(i) Appointment of care representatives under s.21 of the Act of 2009
Certain individuals may apply to the Circuit Court to become a care representative for a person who has been certified by at least two registered medical practitioners as lacking the capacity to make a decision in relation to a matter to which s.21 applies. The Court may request such registered medical practitioners to attend before it to give information in relation to the mental health of the person.
Section 21 applies to:
(a) the making of an application for Ancillary State support,
(b) consenting to the creation of a charge in relation to an interest in land situated within the State,
(c) taking necessary actions in connection with the application for Ancillary State support, the making of an order under section 17(2) or the registration of such order in the Land Registry or the Registry of Deeds.
It is important to note that duly appointed care representatives are “specified persons” for the purposes of s.47 of the Act of 2009 and, as such, are entitled to make an application for a care assessment in respect of a person and act on that person’s behalf for the purposes of the Act of 2009.
For the purposes of s.21, a person shall be considered not to have the capacity to make a decision relating to a matter to which this section applies if he or she is unable to:
understand the information relevant to the decision,
retain that information,
use or weigh that information as part of the process of making a decision, or
communicate his or her decision or, if the decision requires the act of a third party to be implemented, to communicate by any means with that party.
The application must be made to the circuit of the Circuit Court in which the person to whom the application relates is residing at the time of the making of the application. Notice of the application must be given to the person to whom it relates unless the Court determines that notice need not be given.
The individuals who may apply to be appointed as a care representative are:
where the person to whom the application relates is a member of a couple, the other member of the couple,
a parent of the person,
a child of the person,
a brother or sister of the person,
a niece or nephew of the person,
an aunt or uncle of the person,
a registered medical practitioner or such other health practitioner (other than the proprietor of a nursing home in which the person resides or is likely to reside) as appears to the Court to be a fit and proper person to make the application.
The right of the above mentioned to apply to be a care representative shall operate in descending priority, but a person with a greater priority may consent in writing to an application by and appointment of a person with lesser priority. One person may act as the care representative for both members of a couple where the Court considers that it is in the best interests of both members of the couple to do so. Section 22 amends the Courts and Courts Officers Act 1995 to allow for the appointment of care representatives under Section 21 in uncontested cases.