Nursing Homes Support Scheme Act 2009
Acts of the Oireachtas
Source: Acts of the Oireachtas

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paragraphs: — This Act may be cited as the Nursing Homes Support Scheme Act 2009.
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paragraphs: — This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision, and different days may be so appointed for different purposes and different provisions.
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paragraphs: — (1) In this Act, unless the context otherwise requires—
“ ancillary State support ” has the meaning assigned to it by section 15 ;
“ application for State support ” means an application for State support under section 9 (1);
“ approved nursing home ”—
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paragraphs: — (1) In this Act, “ couple ” means—
(a) two persons married to each other,
(b) a man and woman who are not married to each other but are cohabiting as husband and wife, or
(c) two persons of the same sex who are cohabiting in domestic circumstances comparable to that of a man and woman who are not married to each other but are cohabiting as husband and wife,
who are habitually living together at the date of the making of an application for State support by either or both of them or at the date of the commencement of the provision of care services to either or both of them.
(2) For the purposes of this section—
(a) a couple referred to in paragraph (b) of subsection (1) shall not be considered as habitually living together unless they have been cohabiting in the manner referred to in that paragraph,
(b) a couple referred to in paragraph (c) of subsection (1) shall not be considered as habitually living together unless they have been cohabiting in the manner referred to in that paragraph,
for a period of not less than 3 years immediately preceding the date of the making of an application for State support by either or both of them or at the date of the commencement of the provision of care services to either or both of them.
(3) Notwithstanding subsection (2), a person shall be considered as habitually living together with the other member of the couple where—
(a) either of them resides in or enters a relevant facility or approved nursing home for the purposes of being provided with care services,
(b) both of them reside in or enter a relevant facility or approved nursing home for the purposes of being provided with care services,
(c) either of them resides in or enters an institution (of whatever kind) for purposes related to—
(i) a physical or mental condition of the person concerned, or
(ii) the imprisonment, or the taking into lawful custody, of the person concerned, or
(d) both of them reside in or enter an institution (of whatever kind) for purposes related to—
(i) a physical or mental condition of the person concerned, or
(ii) the imprisonment, or the taking into lawful custody, of the person concerned.
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paragraphs: — (1) On the coming into operation of this section there is established a scheme to be known as the Nursing Homes Support Scheme to be operated under and in accordance with this Act.
(2) The Scheme is established for the purpose of giving financial support under this Act in respect of care services in accordance with this Act out of the resources allocated to the Scheme in each year in accordance with subsection (4) 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 this Act and any guidelines issued under section 35 .
(3) It shall be a function of the Executive to operate and administer the Scheme.
(4) In the financial year 2009 and in each subsequent financial year the Executive shall, out of such monies as are available to it for that financial year from monies provided by the Oireachtas, allocate such amount as the Minister determines, with the consent of the Minister for Finance, for the provision of financial support under this Scheme in that financial year.
(5) The Scheme established by this Act shall be operated subject to the principles that—
(a) applicants who are determined by the Executive to need care services in accordance with section 7 (8) shall be informed of the names and addresses of all relevant facilities and approved nursing homes, and
(b) subject to section 12 (2) 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.
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paragraphs: — (1) This section applies to a person 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 Executive 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 Executive or on behalf of the Executive, or
(d) who, on the coming into operation of this paragraph, is being provided with care services by an approved nursing home.
(2) A person may not make an application for, or receive, State support unless the person is a person to whom this section applies.
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paragraphs: — (1) (a) A person ordinarily resident in the State, other than a person referred to in paragraph (c) or (d) of subsection (1) of section 6 , who wishes to make an application for State support shall apply for a care needs assessment.
(b) A person ordinarily resident in the State, who is a person referred to in paragraph (c) or (d) of subsection (1) of section 6 , who wishes to make an application for State support may apply for a care needs assessment.
(2) Where it appears to a specified person that—
(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,
the specified person may apply to the Executive for a care needs assessment on behalf of that person.
(3) An application for a care needs assessment shall be made to the Executive in the specified form.
(4) Upon receipt of an application for a care needs assessment, the Executive shall, as soon as reasonably possible, make arrangements for a care needs assessment to be carried out and a report on that assessment to be provided to the Executive.
(5) The assessment referred to in subsection (4) shall be carried out by persons (who may be employees of the Executive) who, in the opinion of the Executive, are suitably qualified to make that assessment and prepare a report in relation to the assessment.
(6) A care needs assessment of a person shall comprise an evaluation of—
(a) the person’s ability to carry out the activities of daily living, including—
(i) the cognitive ability,
(ii) the extent of orientation,
(iii) the degree of mobility,
(iv) the ability to dress unaided,
(v) the ability to feed unaided,
(vi) the ability to communicate,
(vii) the ability to bathe unaided, and
(viii) the degree of continence,
of the person,
(b) the family and community support that is available to the person,
(c) the medical, health and personal social services being provided to or available to the person both at the time of the carrying out of the assessment and generally,
(d) any other matter that affects the person’s ability to care for himself or herself, and
(e) the likelihood of a material alteration in the circumstances referred to in paragraphs (a) to (d) during the lifetime of the person.
(7) 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.
(8) Where the Executive 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 Executive determines that the person needs care services, the Executive may also make a determination that it is unlikely that the person will ever cease to require care services during the person’s lifetime.
(9) The Executive shall, not later than 10 working days after making a determination under subsection (8), give notice in writing of the decision—
(a) to the person, and
(b) in the case of an application made under subsection (2), to the specified person.
(10) The notification shall be accompanied by—
(a) a copy of the care needs assessment report in respect of the determination, and
(b) the reasons for the determination.
(11) Where a care needs assessment is carried out, this shall not be construed as meaning that the Executive will provide or will arrange for the provision of any service identified in the assessment as being appropriate to meet the needs of the person or that the Executive has an obligation to provide or arrange for the provision of any such service.
(12) Subject to subsection (11), the content of a care needs assessment report may be used by the Executive for the purposes of considering what other health services or personal social services may be appropriate for the person.
(13) 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.
(14) In this section “ specified person ” has the same meaning as it has in section 47 .
(15) In respect of any application for a care needs assessment by a specified person, the Executive may refuse to deal with the specified person if the Executive is not satisfied that such specified person is acting in the best interests of the person.
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paragraphs: — Where the determination of the Executive under section 7 (8) is that a person does not need care services, that person or a specified person may—
(a) subject to paragraph (b), not earlier than 6 months after the date on which that determination was made, make a further application under that section for a care needs assessment,
(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,
(II) stating—
(A) the date of the examination, and
(B) that, in the opinion of the practitioner, there has been a material change in the person’s health or circumstances which warrants the application being made, and
(III) signed by the practitioner.
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paragraphs: — (1) A person to whom section 6 applies may make an application to the Executive in the specified form for State support under the Scheme.
(2) It shall be a condition of every application for State support that the applicant, and in the case where the applicant is a member of a couple, the applicant and his or her partner, shall furnish all information which the Executive may request in connection with the consideration of the application.
(3) The Executive may refuse to consider or further consider an application for State support if—
(a) the application does not comply with subsection (1), or
(b) the applicant or his or her partner fails to provide the Executive with such information as may be requested by the application form or such additional information as the Executive may reasonably require to enable it to determine the application.
(4) Where the Executive refuses under subsection (3) to consider or further consider an application for State support, it shall, not later than 10 working days after the refusal, give the applicant notice in writing of the decision and the reasons for the decision.
(5) Any person who knowingly, or recklessly, gives the Executive information which is false or misleading in a material particular in, with, or in connection with, an application for State support is guilty of an offence and is liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 3 months or both.
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paragraphs: — (1) Where the Executive receives an application for State support, the Executive 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 Executive.
(2) The financial assessment shall be carried out—
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paragraphs: — (1) Subject to sections 7 , 31 and 38 of the Health Act 2004 and section 5 , the Executive shall, having considered the financial assessment report, determine an application for State support in accordance with the method of calculation of State support set out in section 14 .
(2) Where the Executive makes a determination that State support be paid in respect of a person, the determination may include a direction that, subject to sections 12 to 14 , such support be payable on and from—
(a) a date specified by the Executive, or
(b) from the date of the occurrence of an event specified by the Executive.
(3) Where the Executive makes a determination under subsection (1), it shall, not later than 10 working days after the determination, give notice in writing to the person of the decision and the reasons for the decision.
(4) (a) Subject to paragraph (b) the Executive shall not make a determination that State support be paid in respect of a person referred to in section 6 (1)(a), unless the Executive has determined under section 7 (8)(a) that the person needs care services.
(b) Paragraph (a) does not apply to a person referred to in section 6 (1)(c) or (d).
(5) Where the Executive has—
(a) made a determination under section 7 (8)(a) that a person needs care services (other than such a determination made in respect of a person to whom paragraph (c) or (d) of subsection (1) of section 6 applies), and
(b) made a determination that State support be paid in respect of such person,
the determination referred to in paragraph (b) shall not have effect prior to the determination referred to in paragraph (a).
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paragraphs: — (1) State support shall be provided to a person—
(a) in the case of care services falling within paragraph (a)(i) of the definition of “long-term residential care services”, by the transfer by the Executive of the appropriate amount of State support to the relevant facility,
(b) in the case of care services falling within paragraph (a)(ii) of the definition of “long-term residential care services”, by the payment by the Executive of the appropriate amount of State support to the proprietor of the approved nursing home in which the person resides and is being maintained.
(2) 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 Executive 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.
(3) Subsection (2) does not apply to a person referred to in section 6 (1)(c) or (d).
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paragraphs: — (1) This section applies where a person was being provided with transitional care services or care services by an approved nursing home immediately prior to the coming into operation of section 6 (1)(d), and the person concerned has made an application for State support which application has been determined.
(2) Subject to subsections (3) to (5), nothing in this section shall of itself operate to require the Executive to provide State support to a person in respect of any period for which the person was provided with transitional care services or care services before the determination of the application for State support in respect of that person.
(3) Subject to subsections (4) and (5), the Executive shall provide State support to the person in a case to which subsection (1) refers with effect from the date of the commencement of section 6 (1)(d).
(4) The amount of State support payable by reason of subsection (3) shall be reduced by the amount of any relevant subvention paid.
(5) Subsection (3) shall not operate to prejudice any obligation of a person to pay the proprietor of an approved nursing home such portion of the total weekly cost of transitional care services or care services otherwise due by that person as is not discharged by the payment of State support pursuant to this section.
(6) In this section, “ transitional care services ” means care services referred to in paragraph (a)(ii) of the definition of “long-term residential care services” provided by a nursing home, before the commencement referred to in paragraph (d) of section 6 (1), as if paragraphs (a)(ii) and (b)(ii) of the definition of “approved nursing home” were deleted.
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paragraphs: — (1) The amount of State support payable in respect of a person under the Scheme shall be expressed as a weekly amount and shall be determined on the basis of the assessed weekly means determined in accordance with sections 10 and 11 and by applying the equation:
S = T - M
where—
S is the weekly amount of State support,
T is the total weekly cost of the care services provided to the person concerned, and
M is the assessed weekly means of the person.
(2) Where, in the application of the equation specified in subsection (1), M is an amount equal to or greater than T, then S shall be taken to be a nil amount.
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paragraphs: — In this Part—
“chargeable asset” means an asset other than a transferred asset which is a relevant asset of the person who receives care services or of the partner of such a person, or of both of them, and which—
(a) is an asset which is included in the computation of the weekly assessed means of a person, and
(b) comprises an interest in land, which land is situated within the State;
“ ancillary State support ” means monies advanced by the Executive by way of loan in accordance with this Part.
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paragraphs: — (1) Ancillary State support may, in accordance with this section, be paid to or in respect of a person—
(a) who has made an application for State support,
(b) in respect of whom a financial assessment has been carried out, and
(c) unless the Executive otherwise determines, with effect on and from, but not prior to, a determination by the Executive that ancillary State support be paid in respect of such person.
(2) Ancillary State support may be paid to or in respect of a person referred to in subsection (1) notwithstanding the fact that State support is not being paid to or in respect of that person.
(3) (a) 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.
(b) 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).
(4) 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.
(5) (a) The Executive 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.
(b) The Executive 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.
(6) The amount of ancillary State support which may be advanced by the Executive to a person shall be computed in accordance with subsections (5), (7) and (12).
(7) (a) The monies advanced by the Executive by way of ancillary State support shall be advanced on the basis of weekly instalments.
(b) 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.
(c) Notwithstanding paragraphs (a) and (b), the weekly instalment of ancillary State support may be advanced on such periodic basis (not exceeding 2 months) as is specified in writing by the Minister.
(8) Monies advanced by the Executive by way of ancillary State support in respect of care services for the person to whom the application for State support relates and which are advanced in accordance with section 18 shall be deemed to have been paid to and for the benefit of the person who or on whose behalf the request for such ancillary State support was made or, in the case of a person who is a member of a couple, to and for the benefit of both members of the couple.
(9) Where monies are advanced by way of ancillary State support which by reason of subsection (8) are deemed to have been advanced to both members of the couple, the liability of the members of the couple in relation to such advances shall be joint and several.
(10) (a) Subject to section 42 , it shall be a condition of the payment of ancillary State support that the monies advanced by the Executive in respect of such support shall not become repayable prior to the occurrence of a relevant event or a deferred relevant event.
(b) Nothing in paragraph (a) shall prevent the voluntary 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.
num: 17
paragraphs: — (1) In this section—
“authorised person” means a person authorised by the Board of the Executive for the purposes of—
(a) making orders under subsection (2),
(b) transmitting orders by electronic means to the Property Registration Authority in accordance with subsection (13),
(c) making an application to the Property Registration Authority for the cancellation of an entry of a charge on the register of the property charged where such charge relates to an order created under this section, and
(d) performing functions which under this Act may be performed by authorised persons;
“interest in the relevant chargeable asset” means—
(a) the interest of the person in respect of whom ancillary State support is paid, and
(b) in the case of such a person who is a member of a couple, the interest of each member of the couple,
in the chargeable asset concerned;
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paragraphs: — (1) Where a person and, in the case of a couple, a person and his or her partner, request payment of ancillary State support, the Executive may make such payment of ancillary State support in respect of the person concerned—
(a) in the case of care services falling within paragraph (a) (i) of the definition of “ long-term residential care services ”, by the transfer by the Executive of the appropriate amount of ancillary State support to the relevant facility,
(b) in the case of care services falling within paragraph (a)(ii) of the definition of “long-term residential care services”, by the payment by the Executive of the appropriate amount of ancillary State support to the proprietor of the approved nursing home in which the person resides and is being maintained.
(2) The Executive shall keep records and accounts relating to payments made under this section.
(3) Where ancillary State support is paid to or on behalf of a person in relation to different chargeable assets, it shall be recorded by the Executive in a manner which identifies separately the amount of ancillary State support advanced in respect of each chargeable asset.
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paragraphs: — (1) Subject to subsection (5), in this section—
“ relevant event ”, in relation to ancillary State support paid to or in respect of a particular person, means—
(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 .
(2) (a) The Executive shall not make a determination referred to in paragraph (d) of the definition of “relevant event” in subsection (1) 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.
(b) Representations referred to in paragraph (a) shall, unless the Executive permits otherwise, be made in writing.
(3) Where a person who has requested payment of ancillary State support as respects a parcel of land transfers any part of an interest in such land that person shall give notice of such transfer to the Executive within 10 working days of the date of the transfer.
num: 20
paragraphs: — (1) This section applies where—
(a) payment of ancillary State support has been made in respect of a person receiving care services and the asset concerned is the principal residence of that person,
(b) the death occurs of the person who has been in receipt of care services and in respect of whom the ancillary State support was paid, and
(c) the conditions specified in subsection (2) are met.
(2) The conditions referred to in subsection (1) (c) are:
(a) that—
(i) the asset concerned is the principal residence of the surviving partner of the person who has died; and
(ii) such partner (or the partner’s representative) has made a request in the specified form to the Executive for the application of this section in his or her case and such request is made not later than 3 months after the death concerned (or such longer period, not exceeding 6 months after that death, as the Executive thinks appropriate); or
(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;
(ii) the connected person has ordinarily resided in the asset concerned for a period of not less than 3 years immediately preceding the date of the making of the request for payment of ancillary State Support;
(iii) the connected person does not have an interest in any other residential property; and
(iv) the connected person (or the connected person’s representative) has made a request in the specified form to the Executive for the application of this section in his or her case and such request is made not later than 3 months after the death concerned (or such longer period, not exceeding 6 months after that death, as the Executive thinks appropriate),
(c) and in each case that every person appearing to the Executive to have an interest in the asset concerned consents, subject to subsection (9), to the monies advanced by way of ancillary State support not becoming repayable until the occurrence of a deferred relevant event.
(3) Where the Executive makes a determination that the conditions specified in subsection (2) have been met, the Executive shall, not later than 10 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.
(4) In this section, “ connected person ” means a person who is—
(a) a child of the person in respect of whom payment of ancillary State support was made, or of the partner of such person, and—
(i) such child is under 21 years of age, or
(ii) where such child has attained the age of 21 years, that the aggregate of his or her cash assets and relevant assets is not greater than the general assets deductible amount,
(b) a sibling of the person in respect of whom payment of ancillary State support was made, and the aggregate of whose cash assets and relevant assets is not greater than the general assets deductible amount,
(c) a relative of the person in respect of whom payment of ancillary State support was made and—
(i) who is in receipt of a disability or similar allowance,
(ii) who is in receipt of blind person’s pension,
(iii) who is in receipt of State pension (non-contributory),
(iv) who is in receipt, from a place outside the State, of any equivalent to an allowance or pension referred to in subparagraph (i), (ii) or (iii), or
(v) whose total income is not more than the maximum rate of State pension (contributory),
(d) a person who, by reason of caring for the person in respect of whom ancillary State support was paid, was in receipt of payment of Carer's Allowance, Carer's Benefit or the Respite Care Grant at any time during the period of 12 months prior to such person entering into long-term residential care, and that such care was provided for a continuous period of not less than 6 months, or
(e) a relative of the person who is the owner of a building to which the principal residence is attached.
(5) Where this section applies, the monies advanced by way of ancillary State support shall not become repayable until the occurrence of a deferred relevant event.
(6) In this section “deferred relevant event” means—
(a) where this section applies by reason of the death of a person referred to in subsection (1)(b), the death of the partner of that person,
(b) that the conditions specified in subsection (2) cease to apply,
(c) the death of a person who was a connected person or that person ceasing to come within the definition of “connected person”, or
(d) the transfer of an interest in the asset concerned,
whichever first occurs.
num: 21
paragraphs: — (1) This section applies to the following matters:
(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 (including the perfection of the title of the person to whom the application relates).
(2) It shall be presumed, until the contrary is established, that a person has full mental capacity.
(3) This section does not apply to a person—
(a) who is a ward of court,
(b) who has appointed a person to be his or her attorney under an enduring power of attorney and—
(i) the attorney is not prohibited or restricted by the terms of the power from performing any matter to which this section applies, and
(ii) the enduring power of attorney has been registered and the registration has not been cancelled,
or
(c) in respect of whom another person is permitted by law to act on behalf of that person in relation to a matter to which this section applies notwithstanding that the person concerned does not have the capacity to make a decision in relation to such a matter.
(4) (a) Where a person (a “ relevant person ”) does not, for the time being, have the capacity to make a decision in relation to a matter to which this section applies, a person belonging to a class of persons referred to in subsection (12) may apply to the court for an order appointing that person to be a care representative in relation to a matter which is a matter to which this section applies and which is specified in the order.
(b) Nothing in paragraph (a) shall be construed as requiring the making of an application in relation to a relevant person unless section 16 (3)(b) applies.
(5) If the court is satisfied that the relevant person concerned is incapable, for the time being, of making a decision to which this section applies, and the court determines that it is in the best interests of the relevant person concerned, having regard to—
(a) the expressed wishes (if known) of the relevant person concerned, and
(b) the circumstances of the relevant person concerned,
the court may appoint a person to be a care representative in accordance with this section.
(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.
(7) An order under this section appointing a care representative shall not permit the care representative to make any decision or take any action on behalf of the relevant person unless that decision is one to which this section applies and is specified in the order.
(8) An order under this section shall not be construed as making a determination as respects the capacity of the relevant person concerned otherwise than in relation to a matter to which this section applies and which is specified in the order.
(9) An order made under this section shall not otherwise affect the power of the relevant person concerned to deal with his or her property and affairs.
(10) Notice of every application under this section shall be given to the person to whom the application relates, unless the court determines that such notice need not be given.
(11) A person applying to be appointed under this section shall furnish such information to the court as the court may require in connection with the application.
(12) Subject to subsections (13) to (15), a person belonging to one of the following classes of persons may apply to be appointed as a care representative:
(a) where the person is a member of a couple, the other member of the couple;
(b) a parent of the relevant person;
(c) a child of the relevant person;
(d) a brother or sister (whether of the whole or half blood) of the relevant person;
(e) a niece or nephew of the relevant person;
(f) a grandchild of the relevant person;
(g) a grandparent of the relevant person;
(h) an aunt or uncle of the relevant person;
(i) a person, other than a person who is—
(i) the proprietor of a nursing home in which the relevant person resides or is likely to reside, or
(ii) one of the registered medical practitioners who examined the relevant person and prepared a report referred to in subsection (18) in respect of such person,
and who appears to the court to have a good and sufficient interest in the welfare of the relevant person.
(13) The right of a person referred to in subsection (12) 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 a lesser priority.
(14) An application may be made by a person referred to in subsection (12) even where there is a person with equal or greater priority and consent under subsection (13) has not been given, and notice of such application shall, subject to subsection (17), be given to each such person having an equal or greater priority.
(15) The court shall not be bound by the giving of a consent referred to in subsection (13).
(16) Where there is more than one person within a class of persons referred to in subsection (12), an application may be made by one such person, but the court shall be satisfied that all other persons within that class or a class which has greater priority have received proper notice of the application.
(17) The court may give directions relating to the manner of giving notice to a person under this section and may deem any notice given to be sufficient or may, on sufficient cause being shown, dispense with the giving of notice of the application.
(18) (a) The court shall not appoint a person to be a care representative unless it has before it a report from at least two registered medical practitioners who have examined the relevant person concerned and such reports confirm that the person does not have the capacity to make the decisions to which this section applies and setting out the basis for that conclusion.
(b) A report referred to in paragraph (a) shall be in the form prescribed, under regulations made under section 36 , for the purposes of this paragraph.
(19) The court may hear such other evidence relating to—
(a) the health or circumstances of the person concerned, and
(b) the circumstances of the partner of the person concerned,
as it considers necessary to determine whether it should make an order under this section.
(20) On being satisfied that it is appropriate to do so, the court may, in accordance with this section, appoint a person—
(a) who is of full age and full capacity, and
(b) who is, in the view of the court, a fit and proper person,
to be a representative (in this section referred to as a “ care representative ”) of the person in respect of whom the application is made.
(21) The court shall not appoint a person to be a care representative if that person is—
(a) a person who has been adjudicated a bankrupt unless the bankruptcy has been discharged or the adjudication annulled,
(b) a person who has been convicted of an offence involving fraud or dishonesty, or
(c) a person who has been convicted of an offence against the person or property of the person concerned.
(22) An order appointing a care representative shall be subject to such conditions restricting the care representative’s powers to act in relation to the matters to which this section applies as the court considers appropriate and as are specified in the order.
(23) Nothing in this section shall prevent the Court appointing a person to be a care representative of both members of a couple where—
(a) the provisions of this section have been complied with in relation to both members of the couple, and
(b) the Court considers that it is in the best interests of both members of the couple to do so.
(24) The Executive shall be entitled to deal with a care representative as if that care representative were the person in respect of whom he or she has been appointed and that such person had full legal capacity.
(25) Where an event specified in subsection (21) occurs as respects a care representative which would have prevented that person's appointment by reason of that subsection, the person concerned shall cease to be a care representative, and that person shall notify the Executive and the Court by which the appointment was made within 10 working days of such cesser.
(26) Where an order appointing a care representative ceases to have effect (for whatever reason), such cesser shall not prejudice the validity of anything previously done by the care representative under and in accordance with the appointment.
(27) Any transaction between a care representative and another person shall, in favour of that other person, be as valid as if it had been entered into by the person to whom the order relates and that other person.
(28) Where a person is appointed to be a care representative, he or she shall have a duty to act in the best interests of the person in respect of whom he or she has been appointed and to keep records relating to his or her actions, and have a duty to give all reasonable assistance to the Executive in relation to the registration of an order under section 17 (2).
(29) Where the court has appointed more than one care representative under subsection (6) an application may, on notice to any other care representative, be made to the court for directions.
(30) On application being made to the court by any person appearing to the court to have a good and sufficient interest in the welfare of the person to whom the application relates, the court may in accordance with this section appoint a person to be a care representative in place of a care representative previously appointed where—
(a) the care representative appointed previously has died or is no longer of full capacity,
(b) the care representative has indicated to the court that he or she wishes to resign, or
(c) the appointment of the care representative has been revoked by the court.
(31) On application being made to it by any person appearing to the court to have a good and sufficient interest in the welfare of the person to whom the order relates, the court may at any time direct a person appointed to be a care representative to do any of the following:
(a) prepare and file with the court a report of his or her actions as a care representative;
(b) attend before the court with such records and documents as may be specified.
(32) The court on the hearing of the application under subsection (30) or (31) may, if it considers it in the best interests of the person, revoke the appointment of a person appointed to be a care representative and appoint another person to be a care representative.
(33) Where more than one person stands appointed to act as a care representative of a person, the court in hearing the application under subsections (30) or (31) 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.
(34) Where the court revokes the appointment of a care representative such revocation shall be without prejudice to the validity of anything previously done by the representative under and in accordance with the appointment.
(35) Where—
(a) an order under this section; or
(b) any decision or action taken by a care representative on foot of an order under this section,
is set aside or declared to be invalid by any court, such setting aside or declaration of invalidity shall not affect the obligation or liability of—
(i) the person on behalf of whom ancillary State support was paid, or
(ii) the person who, or on behalf of whom the request that ancillary State support be paid was made,
to repay such monies as if the order, decision or action had not been so set aside or declared to be invalid.
(36) Applications or proceedings—
(a) under this section, and
num: 22
paragraphs: — The Second Schedule to the Courts and Court Officers Act 1995 is amended by the addition of the following paragraph:
“(xxxvi) An order for the appointment of a care representative under section 21 of the Nursing Homes Support Scheme Act 2009 if no objection is made to the Court relating to that appointment by any notice party to the application.”.
num: 23
paragraphs: — (1) Where a person provided with financial support—
(a) dies in an approved nursing home,
(b) is discharged from an approved nursing home, or
(c) is otherwise no longer normally residing in an approved nursing home,
the proprietor of the nursing home shall, not later than 3 working days after the date of the person’s death, discharge, or other departure, as the case may be, give notice in writing to the Executive of—
(i) the name of the person,
(ii) the name and address of—
(I) the person’s nominated contact, or
(II) the person’s next of kin, if known,
and
(iii) the date of the person’s death, discharge, or other departure, as the case may be.
(2) Where the proprietor of an approved nursing home proposes to discharge from the nursing home a person provided with financial support, the proprietor shall, at least 10 working days before the proposed date of discharge, give notice in writing to the Executive of—
(a) the name of the person,
(b) the proposed date of discharge, and
(c) the reasons for the discharge.
(3) The proprietor of a nursing home who, without reasonable excuse, contravenes subsection (1) or (2) is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.
(4) Where a person maintained in an approved nursing home—
(a) starts to be provided with financial support,
(b) starts to be provided with an altered level of financial support, or
(c) ceases to be provided with financial support,
the Executive shall, not later than 10 working days after that start or cessation, as the case may be, give notice in writing to the proprietor of the nursing home of that start or cessation, as the case may be.
(5) This section shall, with all necessary modifications, apply to and in relation to a facility referred to in paragraph (a)(i) of the definition of “ long-term residential care services” and the proprietor of such a facility as it applies to and in relation to an approved nursing home and the proprietor of an approved nursing home.
num: 24
paragraphs: — (1) A person (or the person’s care representative, if any) who is the subject of an application for State support or who is provided with financial support shall give notice in writing to the Executive of any material change in circumstances not later than 10 working days after the material change in circumstances comes to the knowledge of the person.
(2) A person who, without reasonable excuse, contravenes subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.
(3) Any person who in compliance or purported compliance with this section knowingly, or recklessly, gives the Executive information which is false or misleading in a material particular is guilty of an offence and is liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 3 months or both.
(4) In this section, “material change in circumstances”, in relation to a person, means any change in the circumstances of—
(a) the person or a child of the person of less than 21 years of age, or
(b) if the person is a member of a couple, the partner of the person or, if different from a child who falls within paragraph (a), a child of that partner of less than 21 years of age,
which may result in—
(i) financial support not being provided to the person,
(ii) the amount of financial support provided to the person being reduced, or
(iii) financial support which is being provided to the person ceasing to be provided.
num: 25
paragraphs: — (1) Where section 20 applies by reason of paragraph (a) of subsection (2) of that section, and that paragraph ceases to apply, the surviving partner concerned or his or her representative shall notify the Executive of that fact within 20 working days of section 20 (2)(a) ceasing to apply.
(2) Where section 20 applies by reason of paragraph (b) of subsection (2) of that section, and the circumstances of the connected person have altered in a manner which would mean that either subparagraph (i) or (iii) of that paragraph cease to apply, the connected person concerned or his or her representative shall notify the Executive of that fact within 20 working days of the subparagraph concerned ceasing to apply.
(3) Where section 20 applies by reason of paragraph (b) of subsection (2) of that section and a connected person ceases to be a connected person, that person shall notify the Executive of that fact within 20 working days of such cesser.
(4) Where a person who is a partner of a person in respect of whom ancillary State support was paid or a connected person dies and the repayment of ancillary State support has been deferred under section 20 the personal representative of the deceased person shall notify the Executive of the death as soon as practicable after the death, but in any event no later than 20 working days after the issue of a grant of representation in respect of the estate of the deceased person concerned.
(5) A person who, without reasonable excuse, contravenes subsection (1), (2) or (3) is guilty of an offence and is liable on summary conviction to a fine not exceeding €1,000.
num: 26
paragraphs: — (1) Where the Executive has advanced monies by way of ancillary State support and a relevant event or a deferred relevant event occurs, the Executive shall in accordance with section 19 or 20 and Schedule 2 calculate the amount due in relation to such support (in this section referred to as the “repayable amount”) and give notice of that amount and particulars of how it is calculated to the relevant accountable person.
(2) (a) The repayable amount together with any interest thereon shall be a debt due and payable to the Executive.
(b) The Revenue Commissioners shall act as agent for the Executive in respect of the collection of monies due to the Executive under this Act in relation to ancillary State support.
(3) The Executive shall within the relevant period referred to in subsection (4) notify the Revenue Commissioners of—
(a) the repayable amount,
(b) particulars of how that amount is calculated,
(c) particulars of the asset or assets against which the repayable amount is secured,
(d) the relevant event or deferred relevant event, as the case may be, and the date of that event,
(e) the name, PPS Number and address of—
(i) the person in respect of whom ancillary State support was paid,
(ii) where the person referred to in subparagraph (i) is a member of a couple, the partner of that person, and
(iii) the relevant accountable person (if known to the Executive),
and
(f) such other information as the Revenue Commissioners may reasonably require for the purposes of this section.
(4) The relevant period referred to in subsection (3) means—
(a) in the case of a relevant event which is the death of a person and where the asset concerned, or one of the assets concerned, is the principal residence of the person, the period of 3 months after the Executive (having become aware of the occurrence of the relevant event) is satisfied that section 20 does not apply, and
(b) in any other case, the period of 3 months after it comes to the knowledge of the Executive that a relevant event or a deferred relevant event has occurred.
(5) Where an amount becomes a repayable amount by reason of the death of a person in respect of whom ancillary State support was advanced or the partner of such person, the repayable amount (together with interest accrued in accordance with subsection (6)) shall be a debt due and payable out of the estate of the deceased person.
num: 27
paragraphs: — (1) This section applies to a deceased person—
(a) in respect of whom financial support was provided at any time, or
(b) in respect of whose partner financial support was provided at any time.
(2) The personal representative of a deceased person in relation to whom this section applies—
(a) shall, as soon as is practicable but, in any case, not less than 3 months before any distribution of the assets of the estate of the person, give the Executive—
(i) notice in writing of the representative’s intention to distribute the assets, and
num: 28
paragraphs: — (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) A receipt under subsection (1) may be issued by an authorised person.
(3) An application to the Property Registration Authority for the cancellation in the Land Registry of an entry of a charge on the register of the property charged, where such charge relates to an order created under section 17 , may be made by an authorised person and such application may be made by electronic means if—
(a) it is lodged by electronic means in a manner approved by, and
(b) it complies with the requirements specified by,
the Property Registration Authority.
(4) A receipt under subsection (1) and an application under subsection (3) shall be in the form prescribed by regulations made under section 36 .
(5) Where an application under subsection (3) is made to the Property Registration Authority in electronic form which purports to have been made by an authorised person it shall be presumed by the Property Registration Authority that such electronic document was made and transmitted by the person by whom it purports to have been made and transmitted.
num: 29
paragraphs: — (1) Subject to subsections (2) and (3), where the Executive makes an order under section 17 (2) which relates to an interest in land the subject of a joint tenancy, notwithstanding any rule of law or statutory provision—
(a) the mortgage created thereby shall not, by reason of the absence of the prior consent in writing of the other joint tenant or, where there are more than one other, all the other joint tenants, cause the severance of the joint tenancy in the interest in the land the subject of the mortgage,
(b) the mortgage created thereby shall not, by reason of the absence of the prior consent in writing of the other joint tenant or, where there are more than one other, all the other joint tenants, be void, and
(c) the severance of the joint tenancy, or the determination or extinguishment of the interest of the joint tenant who has created such mortgage, shall not cause the charge concerned to be determined, extinguished or otherwise cease to have effect as respects such land.
(2) Subject to subsection (3), the amount secured by an order made under section 17 (2) and to which subsection (1) refers shall not exceed the amount which represents the value of such share or proportion of the interest in the land concerned to which the person or persons requesting payment of ancillary State support would have been entitled had the joint tenancy been severed on—
(a) the date on which the mortgage is deemed to have been executed by reason of section 17 (4), or
(b) an order for partition of the land had been made on that date.
(3) Subsection (2) shall not apply where all the joint tenants in the joint tenancy concerned have made a request to the Executive that the ancillary State support be paid in relation to the interest in the land concerned.
num: 30
paragraphs: — (1) Subject to subsections (5), (6) and (7), the Executive may, in respect of a person who is being provided with care services or whose application for State support has been determined, and whether of its own initiative or at the request of the person, at any time arrange for a review to be carried out of all or any of the following, as may be appropriate:
(a) the care needs of the person on the same basis as is specified in section 7 (6);
(b) the financial assessment relating to the person carried out under section 10 ;
(c) the weekly amount of payments made by way of ancillary State support in respect of the person.
(2) The Executive shall cause a review under this section to be carried out by a suitable person.
(3) The suitable person who carries out a review under this section shall prepare a report thereon and provide it to the Executive.
(4) Where the Executive, having regard to a review under this section and the report provided to it under subsection (3), is satisfied that the determination or matter the subject of the review should be altered, it may determine that the determination or matter under review be altered accordingly.
(5) An alteration referred to in subsection (4) shall, subject to subsection (6) and unless the Executive otherwise determines (in particular in any case where there has been a contravention of any requirement of this Act relevant to the determination or matter the subject of the review), have effect from the date the determination is made under subsection (4).
(6) Where a determination under subsection (4)—
(a) results in the assessed weekly means of a person being increased, or
(b) results in the amount of weekly payments of ancillary State support being reduced,
the Executive shall not implement that determination before the expiration of 40 working days after the date on which it has given notice of the determination under subsection (8).
(7) A person other than the Executive may not request a review of a determination relating to a financial assessment unless—
(a) 12 months have elapsed since the date of the initial financial assessment or the most recent review of that assessment under this section (whichever is the later), or
(b) there has, to the satisfaction of the Executive, been a material change in the financial circumstances of the person since the financial assessment or most recent review of that assessment under this section (whichever is the later).
(8) Where the Executive makes a decision under subsection (4) in respect of a person, it shall, not later than 10 working days after the date of the decision, give notice in writing to the person of that determination stating the reasons for the decision and accompanied by a copy of the report concerned provided to the Executive under subsection (3).
num: 31
paragraphs: — (1) Where, in connection with the financial assessment of a person, a transferred item is taken into account by the Executive in determining the means of the person and the transfer of the transferred item was effected prior to 9 October 2008, the person may make an application to the Executive to recalculate the means of the person by excluding one or more than one of the transferred items on the ground that it is necessary to do so in order to avoid undue financial hardship arising by including that item in the financial assessment in relation to an applicable person.
(2) The Executive may refuse to consider or further consider an application under subsection (1) by a person if—
(a) the application does not comply with that subsection, or
(b) an applicable person fails to provide the Executive with such information in addition to the information provided by or with the application as the Executive may reasonably require to enable it to determine the application under subsection (5).
(3) Where the Executive refuses under subsection (2) to consider or further consider an application under subsection (1) by a person, it shall, not later than 10 working days after the refusal, give the person notice in writing of the decision and the reasons for the decision.
(4) Any person who knowingly, or recklessly, gives the Executive information which is false or misleading in a material particular in, with, or in connection with, an application under subsection (1) is guilty of an offence and is liable on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 3 months or both.
(5) The Executive shall determine an application under subsection (1)—
(a) if the Executive is satisfied that a recalculation (excluding one or more transferred items) of the means of the person is necessary in order to avoid undue financial hardship in relation to an applicable person, by carrying out the recalculation and adjusting the amount of weekly assessed means of the person accordingly,
(b) if the Executive is not so satisfied, by refusing the application.
(6) Where the Executive determines under subsection (1) an application under subsection (1) by a person, it shall, not later than 10 working days after the determination, give notice in writing to the person of the decision and the reasons for the decision.
(7) In this section—
“applicable person”, in relation to an application under subsection (1), means—
(a) the person to whom the financial assessment relates,
(b) where the person to whom the financial assessment relates is a member of a couple, the partner of that person, or
(c) a child of a person referred to in paragraph (a) or (b) where that child is less than 21 years of age;
“ transferred item” means transferred income or a transferred asset.
num: 32
paragraphs: — (1) Subject to subsection (2), a person (“the appellant”) aggrieved by a decision of the Executive referred to in section 7 (8), 9 (3), 10 (7), 11 (1), 16 , 30 (4), 31 (2) or 31 (5) may appeal against the decision by giving the Executive a notice—
(a) in the specified form stating the reasons for the appeal, and
(b) not later than 40 working days after notice of the decision was given to the appellant under section 7 (9), 9 (4), 10 (8), 11 (3), 16 (16), 30 (8), 31 (3) or 31 (6) respectively.
(2) (a) The Executive, with the consent of the Minister, shall appoint a panel of suitable persons to consider appeals received under subsection (1).
(b) Where the Executive receives an appeal under subsection (1), it shall appoint a suitable person from the panel referred to in paragraph (a) to consider the appeal.
(3) The person appointed pursuant to subsection (2) to consider an appeal under subsection (1) shall—
(a) be independent in the performance of the person’s functions under this Act as a person so appointed,
(b) not be confined to the grounds on which the decision of the Executive was based, but may decide the matter which is the subject of the appeal as if it were being decided for the first time,
(c) subject to paragraph (a), comply with guidelines issued by the Executive under section 35 in respect of the procedure to be followed with respect to the consideration of any appeal,
(d) consider any written or oral objections made by the appellant in support of the appeal,
(e) make a decision (“relevant decision”) in writing determining the appeal, which may be a decision to—
(i) confirm the decision the subject of the appeal,
(ii) revoke that decision and replace it with such other decision as the person thinks appropriate, or
(iii) refer the matter concerned back to the Executive for reconsideration in accordance with such directions as the person thinks appropriate,
(f) send a copy of the relevant decision to the appellant and the Executive together with the person’s reasons for the relevant decision, and
(g) give the Executive such directions as the person thinks appropriate.
(4) A person (including the Executive) aggrieved by the relevant decision may appeal to the High Court against the decision on a point of law.
(5) An appeal under subsection (4) shall, where the appellant so requests, be heard otherwise than in public.
(6) The Executive shall, on complying with any direction given under subsection (3)(e)(iii) or (g), give notice in writing to the appellant concerned of the Executive’s compliance with the direction.
(7) A reference in this section to a decision made by the Executive includes a determination and refusal made by the Executive.
num: 33
paragraphs: — (1) Notwithstanding any other statutory provision, charges may be made by the Executive in respect of the provision of care services within the meaning of paragraph (a)(i) of the definition of “ long-term residential care services ”.
(2) Following consultation with the Executive, the Minister shall lay before the Houses of the Oireachtas details of the goods and services which constitute care services within the meaning of paragraph (a)(i) of the definition of “long-term residential care services ”.
(3) Charges in respect of care services within the meaning of paragraph (a)(i) of the definition of “long-term residential care services” which are provided by the Executive shall not exceed the cost of providing such services, which cost shall be determined by the Executive in accordance with subsection (2).
(4) In determining the cost of care services in accordance with subsections (2) and (3), the Executive—
(a) subject to paragraph (b), shall include only the costs incurred by the Executive in relation to the provision of such care services, and
(b) shall not include costs which are not directly attributable to the provision of such care services except such costs which are prescribed, under regulations made under section 36 , for the purposes of this paragraph.
(5) Charges in respect of care services within the meaning of paragraph (a)(i) of the definition of “long-term residential care services ” in section 3 which are provided on behalf of the Executive shall not exceed the cost incurred by the Executive in relation to the provision of such care services.
(6) Different charges may be made by reference to the class of care services provided and the cost of that class of care services as determined in accordance with subsections (3) to (5).
(7) Charges under this section shall not be payable in respect of care services provided by the Executive or on behalf of the Executive to—
(a) a person under 18 years of age,
(b) a woman in respect of motherhood,
(c) a person detained involuntarily under the Mental Health Acts 1945 to 2001,
(d) a person who pursuant to section 2 of the Health (Amendment) Act 1996 , in the opinion of the Executive, has contracted Hepatitis C directly or indirectly from the use of Human Immunoglobulin Anti-D or the receipt within the State of another blood product or a blood transfusion, or
(e) a person in respect of the treatment of diseases prescribed under Part IV of the Health Act 1947 .
num: 34
paragraphs: — (1) Section 52 of the Health Act 1970 is amended by inserting the following after subsection (1):
“(1A) The Health Service Executive may make available long-term residential care services within the meaning of the Nursing Homes Support Scheme Act 2009.”.
(2) Section 53 (as amended by section 4 of the Health (Amendment) Act 2005 ) of the Health Act 1970 is amended—
(a) by substituting the following for subsection (1):
“(1) Subject to subsection (1A), charges shall not be made for in-patient services made available under section 52 except as provided for in subsection (2).”,
(b) by inserting the following after subsection (1):
“(1A) Charges shall be made for long-term residential care services in accordance with the Nursing Homes Support Scheme Act 2009.
(1B) A reference in subsection (1A) to long-term residential care services shall be construed as a reference to long-term residential care services within the meaning of the Nursing Homes Support Scheme Act 2009 as respects such services provided to a person who first begins to receive those services after the coming into operation of section 6 (2) (c) of the Nursing Homes Support Scheme Act 2009.
(1C) A person in respect of whom charges are being made under subsection (2) shall not be required to pay charges under subsection (1A).”.
(3) The Health Act 1970 is amended by inserting the following section after section 53:
“Charges for in-patient services in certain cases.
53A.— (1) This section applies where in-patient services (not being long-term residential care services within the meaning of the Nursing Homes Support Scheme Act 2009) are provided to a person in a hospital for the care and treatment of patients with acute ailments (including any psychiatric ailment) and a medical practitioner designated by the Health Service Executive has certified in writing that the person in receipt of such services does not require medically acute care and treatment in respect of any such ailment.
(2) Where this section applies, notwithstanding section 53, charges may be made in respect of in-patient services on the basis specified in subsection (3) as if those services were long-term residential care services within the meaning of the Nursing Homes Support Scheme Act 2009 provided by the Health Service Executive, and whether or not the person concerned has made an application for State support under section 9 of that Act.
(3) The charges referred to in subsection (2) shall be determined by the average cost of long-term residential care services as determined by the Health Service Executive in facilities operated by the Health Service Executive and publicly designated in writing as facilities predominantly for the care of older people.
(4) Subject to subsection (5), this section shall not apply where a person has applied for a care needs assessment under section 7 of the Nursing Homes Support Scheme Act 2009 and is awaiting a determination by the Executive under section 7 of that Act.
(5) Subsection (4) shall not apply where a person withdraws an application under section 7 of the Nursing Homes Support Scheme Act 2009 and makes a subsequent application.”.
num: 35
paragraphs: — (1) The Executive may, with the consent of the Minister, issue guidelines consistent with this Act, whether relating to the performance of a function of the Executive or otherwise, for the purpose of providing practical guidance in respect of any provision of this Act or regulations made under it.
(2) The Executive shall arrange for guidelines issued under this section to be published in such manner as the Executive considers appropriate.
num: 36
paragraphs: — (1) Subject to subsections (2) to (11), the Minister may, for the purposes of enabling any provision of this Act to have full effect, make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed.
(2) The Minister may, following prior consultation with the Executive and with the consent of the Minister for Finance, make regulations for the purposes of paragraph (b) of subsection (4) of section 33 by prescribing, by reference to a class of care services, a class of costs which, although not directly attributable to the provision of such class of care services, the Minister is satisfied is connected with, the provision of such class of care services.
num: 37
paragraphs: — 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,”.
num: 38
paragraphs: — Section 7A (inserted by section 3 of the Health (Nursing Homes) (Amendment) Act 2007 ) of the Health (Nursing Homes) Act 1990 is amended by inserting the following subsection after subsection (4):
“(4A) The Executive shall refuse to consider an application made on or after the commencement of section 6 (1)(d) of the Nursing Homes Support Scheme Act 2009.”.
num: 39
paragraphs: — (1) A person in receipt of a relevant subvention immediately before the commencement of this subsection shall continue to be paid the relevant subvention until—
(a) such payment ceases in accordance with the provisions of the Health (Nursing Homes) Act 1990 (as amended by the Health (Nursing Homes) (Amendment) Act 2007 ), or
(b) the date from which by reason of the determination of the Executive under section 11 (1) State support is to be paid in respect of the person,
whichever first occurs.
(2) Subsection (1) shall not prejudice the operation of section 7D (inserted by section 3 of the Health (Nursing Homes) (Amendment) Act 2007 ) of the Health (Nursing Homes) Act 1990 in so far as that section 7D provides for the payment of a relevant subvention to a person referred to in that subsection which is different from the relevant subvention which is paid to that person immediately before the commencement of that subsection.
num: 40
paragraphs: — 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”.
num: 41
paragraphs: — (1) The National Treatment Purchase Fund Board (Establishment) Order 2004 ( S.I. No. 179 of 2004 ) is amended—
(a) in Article 2, by inserting the following definitions:
“ ‘approved nursing home’ has the same meaning as in the Nursing Homes Support Scheme Act 2009;
‘ long-term residential care services’ means long-term residential care services within the meaning of paragraph (a)(ii) of the definition of ‘long-term residential care services’ in section 3 (1) of the Nursing Homes Support Scheme Act 2009;
‘ nursing home’ has the meaning assigned to it by section 2 of the Health (Nursing Homes) Act 1990 and includes an institution referred to in section 2(1)(h) of that Act;”,
and
(b) in Article 4—
(i) by the inserting after paragraph (1)(b) the following subparagraph:
“(ba) to make arrangements with a person it considers to be appropriate, being a proprietor of a nursing home, relating to the price at which long-term residential care services will be provided by such person to persons requiring such services and who are in receipt of financial support under the Nursing Homes Support Scheme Act 2009;”,
(ii) by the inserting after paragraph (1) the following paragraphs:
“(1A) Arrangements referred to in paragraph (1)(ba) shall be subject to a condition that the nursing home is an approved nursing home or that the arrangements will not apply unless the nursing home becomes an approved nursing home.
(1B) Arrangements referred to in paragraph (1)(ba) shall be notified to the Health Service Executive who may publish such information relating to those arrangements as it considers appropriate.”,
and
(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).”.
num: 42
paragraphs: — (1) Where, in connection with a financial assessment, or a review of a financial assessment under section 30 , a person does not disclose, or makes a misstatement as respects the amount or value of income, transferred income, cash assets, relevant assets or transferred assets, and receives a greater amount of State support than would have been the case if there had not been such non-disclosure or misstatement, as the case may be, the amount, as determined by the Executive, of the excess of State support over the amount which the person would have received had such non-disclosure or misstatement, as the case may be, not occurred shall be payable by the person to the Executive on demand and may be recovered by the Executive as a simple contract debt in any court of competent jurisdiction from the person or the estate of that person.
(2) Where an excess amount of State support has been paid in respect of a person and such excess arises by reason of information supplied by the person’s partner, such excess shall, to the extent that it arises by reason of the non-disclosure or misstatement by that partner, be payable by the partner to the Executive on demand and may be recovered from the partner of the person in respect of whom the State support has been paid or the estate of such partner as a simple contract debt in any court of competent jurisdiction.
(3) Without prejudice to the rights of the Executive under subsections (1) and (2), the Executive may reduce the amount of State support which would be payable in respect of the person until the total of excess payments has been recovered by the Executive.
num: 43
paragraphs: — (1) It is declared that the supply of care services to a person, which the Executive pursuant to section 7 has determined are appropriate for the needs of that person, shall be conclusively presumed as being for the benefit of and necessary for the health and welfare of that person and to have been supplied at his or her request, notwithstanding any legal incapacity of that person and any contact entered into with that person or on his or her behalf in relation to such care services shall be valid and enforceable notwithstanding any rule of law or statutory provision.
(2) Subsection (1) shall apply with all necessary modifications to the provision of ancillary State support.
(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.
(4) The invalidity of any charge created pursuant to this Act shall not affect the underlying liability in respect of the repayment of any monies to the Executive.
num: 44
paragraphs: — (1) The Executive may specify the form of any document required by this Act to be in the specified form and the form of such other documents required for the purposes of this Act as the Executive thinks appropriate.
(2) A form specified under this section shall be—
(a) completed in accordance with such directions and instructions as are specified in the form,
(b) accompanied by such documents (including instruments, certificates, duplicates of the form and statutory declarations) as are specified in the form, and
(c) if the completed form is required to be provided to the Executive or any other person, so provided in the manner, if any, specified in the form.
(3) The Executive’s power under subsection (1)—
(a) may be exercised in such a way as to require the person completing the form to make a statutory declaration as to whether the particulars contained in the form are true and correct to the best of that person’s knowledge and belief,
(b) may be exercised in such a way as to specify two or more forms of any document referred to in that subsection whether as alternatives, or to provide for particular circumstances or particular cases, as the Executive thinks appropriate.
(4) The form specified under this section of an application for State support in respect of a person may require the application to be accompanied by—
(a) valuations of assets the person has or had any interests in and valuations of those interests,
(b) if the person is a member of a couple, valuations of assets the other member of the couple has or had any interests in and valuations of those interests, and
(c) such other information as the Minister may prescribe.
num: 45
paragraphs: — (1) Notwithstanding any provision of the Data Protection Acts 1988 to 2003, the Executive may, in accordance with this section, access and process any relevant records for the purposes of this Act.
(2) Subject to subsection (3), the Executive shall, as soon as is practicable after the commencement of this section, prepare and cause to be published a code of practice to be complied with by a person accessing and processing any relevant records pursuant to subsection (1), or a person referred to in subsection (4) having any relevant information in the person’s possession, custody or control, in so far as the relevant records or relevant information, as the case may be, consist of personal data.
(3) The Executive shall not perform the function under subsection (2) except after consultation with the Data Protection Commissioner within the meaning of the Data Protection Acts 1988 and 2003.
(4) Subject to subsection (5), a person shall not disclose relevant information except for the purpose of the performance of a function by the person under this Act.
(5) A person may disclose relevant information to a member of the Garda SÃ­ochÃ¡na if the person reasonably believes that the disclosure is necessary in order to prevent the continuance of an act constituting an offence.
(6) Documents that are prepared for the purpose of performing a function under this Act shall not constitute Departmental records within the meaning of section 2(2) of the National Archives Act 1986.
(7) The Executive shall determine the storage, retention or disposal of—
(a) applications for State support (including any documents accompanying applications),
(b) documents referred to in subsection (6), and
(c) relevant records which are in the possession of, or under the control of, the Executive.
(8) The Executive may request in writing a person to provide the Executive with access to, or copies of, relevant records which—
(a) are in the possession of, or under the control of, the person, and
(b) will or may assist the Executive to perform its functions under this Act.
(9) A person the subject of a request under subsection (8) shall comply with the request as soon as is practicable after the person receives the request.
(10) A person who, without reasonable excuse, contravenes subsection (4) or (9) is guilty of an offence and is liable—
(a) on summary conviction, to a fine not exceeding €3,000 or imprisonment for a term not exceeding 6 months or both, or
(b) on conviction on indictment, to a fine not exceeding €25,000 or imprisonment for a term not exceeding 2 years or both.
(11) In this section—
“relevant information”, in relation to a person referred to in subsection (4), means information that is provided under this Act to the Executive, a suitable person, or a person appointed under section 32 (2) and obtained by the first-mentioned person in the course of the performance of a function of the person under this Act;
“relevant record” means any record which will or may assist the Executive to determine an application for State support or a request for refundable State support.
num: 46
paragraphs: — (1) The Minister, with the consent of the Minister for Finance, may, for the purpose of the relief of undue hardship, make regulations in relation to the carrying out of financial assessments consistent with this Act.
(2) The power to make regulations under this section includes the power to provide that the income or assets (or a specified part of such income or assets) of one member of a couple be disregarded in the carrying out of a financial assessment in connection with an application for State support by the other member of the couple where exceptional circumstances specified in the regulations are shown to exist to the satisfaction of the Executive or the person requested pursuant to section 10 to carry out the financial assessment.
(3) Every regulation made under this section shall be laid by the Minister before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next 21 days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder.
num: 47
paragraphs: — (1) Subject to subsections (2), (4) and (9), 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.
(2) The Executive 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 Executive that the first-mentioned person is in fact a specified person acting on behalf of the relevant person.
(3) When the Executive refuses under subsection (2) to deal with a person purporting to be a specified person, it shall, not later than 10 working days after the refusal, give both the specified person and the relevant person notice in writing of the decision and the reasons for the decision.
(4) The Executive may refuse to deal with a specified person in respect of a relevant matter if the Executive is not satisfied that the specified person is acting in the best interests of the relevant person in respect of that matter.
(5) When the Executive refuses under subsection (4) to deal with a specified person in respect of a relevant matter, it shall, not later than 10 working days after the refusal, give the specified person and the relevant person notice in writing of the decision and the reasons for the decision.
(6) Subject to subsections (2) and (4), no provision of this Act shall operate to prevent the Executive from dealing with a specified person, and anything done by the specified person shall be binding upon the person on whose behalf the action was taken.
(7) In this section, “ specified person ”, in relation to a person, means—
(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—
(i) the attorney is not prohibited or restricted by the terms of the power from performing any matter to which this section applies, and
(ii) 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 ,
(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.
(8) The categories of person who may act as a specified person referred to in paragraphs (a), (b) and (c) of subsection (7) shall have priority over the categories of person referred to in paragraphs (d) to (h) of subsection (7) but a person referred to in paragraphs (a) to (c) of such subsection may consent in writing to a person with lesser priority acting as a specified person.
(9) Subsection (1) shall not operate to permit a person—
(a) to act as a care representative unless that person is appointed as a care representative under section 21 , or
(b) to make a request that ancillary State support be paid unless that person is appointed as a care representative under section 21 .
num: 48
paragraphs: — The Taxes Consolidation Act 1997 is amended by the insertion of the following section after section 192B:
“Exemption in respect of payments of State support.
192C.— (1) Notwithstanding any other provision of the Income Tax Acts, a person in receipt of care services shall be exempt from income tax in respect of any State support provided to the person under section 12 (2) of the Nursing Homes Support Scheme Act 2009 and the payment shall not be reckoned in computing the person’s income for the purposes of the Income Tax Acts.
(2) Notwithstanding any provision of the Income Tax Acts, any payment referred to in subsection (1) shall be paid without deduction of income tax.
(3) In this section ‘care services’ and ‘State support’ have the same meaning as in the Nursing Homes Support Scheme Act 2009.”.