First Previous (PART 2 Establishment of Scheme and Application for State Support ) Next (PART 4 Care Representative )

15 2009

Nursing Homes Support Scheme Act 2009

PART 3

Ancillary State Support

Interpretation (Part 3).

15 .— 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.

Ancillary State support.

16 .— (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.

(11) The amount repayable in respect of ancillary State support shall be the aggregate of monies advanced by the Executive by way of ancillary State support adjusted in accordance with Schedule 2 together with interest, if any, computed in accordance with subsection (15).

(12) The amount of a weekly instalment advanced in respect of ancillary State support or, in a case where a request has been made that ancillary State support be paid in relation to the same person in respect of more than one chargeable asset, the aggregate of weekly instalments of ancillary State support advanced in relation to the same person, shall not exceed the amount produced by the application of the following formula:

T - (A+B+R+S)

where—

T is the total weekly cost of care services applicable to the person concerned,

A is the assessed weekly income of the person concerned,

B is the assessed weekly cash assets of the person concerned,

R is the assessed weekly value of the relevant assets of the person concerned and which are not chargeable assets, and

S is the amount of State support payable in respect of the person concerned.

(13) Where a relevant asset of a person who receives care services or of the partner of such a person, or of both of them, ceases to be a chargeable asset for a reason not related to paragraph (a) of the definition of “chargeable asset” in section 15

(a) the person (or the person’s care representative, if any) or, if applicable, the partner of such person (or the partner’s care representative, if any) shall, as soon as is practicable after the occurrence of such cesser but, in any case, not later than 10 working days after the occurrence of such cesser, give notice in writing to the Executive of the cesser and the date on which it occurred, and

(b) the Executive shall cease to make payments of such part of ancillary State support which relates to the former chargeable asset.

(14) The Executive may, following a review of a financial assessment under section 30 , alter the amount of ancillary State support paid in respect of a person under this section.

(15) Where the Executive makes payments to or on behalf of a person by way of ancillary State support and, as the case may be, a relevant event or a deferred relevant event occurs, interest shall accrue on the amount which is the aggregate of the amounts advanced by way of ancillary State support adjusted in accordance with Schedule 2 , which interest shall be calculated in accordance with regulations made under section 36 for the purposes of this subsection.

(16) The Executive shall, not later than 10 working days after making a determination under this section that an application for payment of ancillary State support be refused or a determination of the amount of ancillary State support to be advanced, give notice in writing of the decision and the reasons for the decision to each person who made the application.

(17) (a) The Minister may make regulations for the purpose of this section prescribing circumstances in which a person who is a member of a couple is not required to make a request for payment of ancillary State support.

(b) Regulations made under this subsection may provide for—

(i) the making of applications to the Minister for a decision by the Minister dispensing with the requirement in that case for the request for ancillary State support to be made by both members of a couple, and

(ii) the matters to be taken into consideration by the Minister in considering such applications.

(18) The Minister shall not make a decision pursuant to regulations made under subsection (17) dispensing with the requirement for a request for payment of ancillary State support by one member of a couple unless he or she is satisfied that the person who would otherwise be required to make such request for ancillary State support has no interest in the asset to which the application relates.

(19) The Minister shall not make a decision dispensing with the requirement for a request for ancillary State support to be made by a person in respect of more than one member of a couple.

Ancillary State support to be charge against land.

17 .— (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;

“secured amount”, in relation to a chargeable asset, means the aggregate of all amounts advanced by the Executive (whether before or after the making of an order under subsection (2)) in respect of a person by way of ancillary State support adjusted in accordance with Schedule 2 together with interest thereon calculated in accordance with section 16 (15) and which amounts relate to the interest of that person or of that person’s partner, or of both of them, in that chargeable asset.

(2) (a) Where the Executive has received a request for payment of ancillary State support and the Executive is satisfied that it is appropriate that payment of such support be made, the Executive shall make an order in accordance with this section.

(b) The Executive shall not make a payment in respect of ancillary State support prior to the making of an order by the Executive charging the interest in the relevant chargeable asset with the secured amount.

(3) The Board of the Executive may appoint a person or persons who are employees of the Executive to make orders under subsection (2) and each such order shall be deemed to have been executed by the Executive under the seal of the Executive in compliance with paragraph 1 of Schedule 2 of the Health Act 2004 .

(4) An order made under subsection (2) shall be deemed to be a mortgage made by deed within the meaning of the Conveyancing Acts 1881 to 1911 in favour of the Executive for a charge of the secured amount and to have been executed at the time of the making of the order.

(5) The Executive shall from the date of the making of the order under subsection (2)

(a) be deemed to be a mortgagee of the property for the purposes of the Conveyancing Acts 1881 to 1911, and

(b) have, in relation to the charge referred to in subsection (2), all the powers conferred by those Acts on mortgages made by deed.

(6) Where the Executive makes an order under subsection (2), it shall, as soon as practicable thereafter, cause the order to be registered in the Registry of Deeds or the Land Registry, as appropriate.

(7) An order made under subsection (2) affecting an interest in land which is registered land within the meaning of the Registration of Title Act 1964 shall be registrable as a burden affecting such land whether the person named in such order as the owner of the land is or is not registered under that Act as the owner of such land, and the Property Registration Authority shall on application being made to it register such order affecting the land concerned.

(8) Any amount paid by way of ancillary State support, whether or not it is the subject of a mortgage arising by reason of this section, may, without prejudice to any other power in that behalf, be recovered by the Executive as a simple contract debt in any court of competent jurisdiction.

(9) For the avoidance of doubt, neither an order made under subsection (2) nor a mortgage that arises under it shall be regarded as a conveyance for the purposes of section 3 of the Family Home Protection Act 1976 .

(10) Subject to subsection (11), notwithstanding any rule of law or statutory provision, where a mortgage is created by reason of an order under subsection (2) and registered in the Registry of Deeds or the Land Registry as appropriate and a subsequent mortgage is created in favour of a party other than the Executive, the Executive is entitled to priority over any subsequent mortgage in respect of advances made by the Executive after the date of the subsequent mortgage whether the Executive did or did not have notice of such subsequent mortgage.

(11) Subsection (10) does not apply as respects a subsequent mortgage where the Executive has consented in writing to such subsequent mortgage subject to any conditions specified in that consent.

(12) A person who makes a request for payment of ancillary State support shall have an obligation to give all reasonable assistance to the Executive as the Executive may request to facilitate the registration of an order under subsection (2) in the Land Registry or Registry of Deeds, and the Executive shall not be required to make a payment of ancillary State support where such assistance has not been given.

(13) (a) An order made under subsection (2) shall be in the form prescribed by regulations made under section 36 , and may be made—

(i) by an authorised person, and

(ii) in electronic form.

(b) Where an order is made in electronic form under this section, an authorised person may transmit the order by electronic means to the Property Registration Authority for registration in the Land Registry, and the Property Registration Authority may effect registration of the order if—

(i) it is lodged by electronic means in a manner approved by, and

(ii) it complies with the requirements specified by,

the Property Registration Authority.

(14) Where an order under this section made in electronic form 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.

Payment of ancillary State support.

18 .— (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.

Repayment of monies advanced by way of ancillary State support.

19 .— (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.

(4) On the date of the occurrence of a relevant event, the amount of ancillary State support advanced or in the course of being advanced by reference to the asset concerned, adjusted in accordance with Schedule 2 shall, subject to subsection (5), become due and payable.

(5) The occurrence of an event referred to in paragraph (a) of the definition of “relevant event” in subsection (1) shall not be considered to be a relevant event in a case where section 20 applies.

Repayment of monies advanced by way of ancillary State support where deferral of occurrence of relevant event applies.

20 .— (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.

(7) In this section, “cash assets”, “general assets deductible amount” and “relevant assets” have the same meaning as they have in Schedule 1.

(8) The monies advanced by way of ancillary State support, adjusted in accordance with Schedule 2 , shall, subject to the provisions of this section, become due and payable on the day on which a deferred relevant event occurs.

(9) Nothing in this section shall operate to defer or prevent the operation of paragraph (c) or (d) of the definition of “relevant event” in section 19 (1) or the obligation to pay monies arising by reason of the occurrence of a relevant event referred to in either of those paragraphs.