Health (Nursing Homes) Act , 1990

F1[PART 1 Preliminary and General]

1. Interpretation.

1.—(1)In this Act, except where the context otherwise requires—

“the Act of 1964” means the Health (Homes for Incapacitated Persons) Act, 1964;

“dependent person” means a person who requires assistance with the activities of daily living such as dressing, eating, walking, washing and bathing by reason of—

(a)physical infirmity or a physical injury, defect or disease, or

(b)mental infirmity,

and “dependency” shall be construed accordingly;

“the Minister” means the Minister for Health;

“prescribed” means prescribed by regulations made by the Minister;

F2[“register“means a register of nursing homes that is established or deemed to have been established by the Health Service Executive under section 4, and cognate words shall be construed accordingly;]

“registered proprietor”, in relation to a registered nursing home, means the person whose name is entered in the register concerned as the person carrying on the home;

“the regulations” means the regulations under section 6, and the regulations referred to in subsection (6) of that section, for the time being in force.

(2)In this Act—

(a)a reference to any enactment shall, unless the context otherwise requires, be construed as a reference to that enactment as amended or extended by or under any subsequent enactment including this Act,

(b)a reference to a section is a reference to a section of this Act unless it is indicated that reference to some other enactment is intended,

(c)a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

2. “Nursing home”.

2.—(1)In this Act, except where the context otherwise requires, “nursing home”, subject to subsection (2), means an institution for the care and maintenance of more than two dependent persons excluding—

(a)an institution managed by or on behalf of a Minister of the Government or F3[the Health Service Executive],

(b)an institution in which a majority of the persons being maintained are being treated for acute illnesses,

(c)a maternity home carried on by a person who is registered under the Registration of Maternity Homes Act, 1934,

(d)a mental institution within the meaning of the Mental Treatment Acts, 1945 to 1966,

(e)an institution for the care and maintenance of mentally handicapped persons operated otherwise than for profit and to which grants are paid by the Minister or F3[the Health Service Executive],

(f)premises in which children are maintained in pursuance of an arrangement with F3[the Health Service Executive],

(g)an institution operated otherwise than for profit—

(i)that is for the care and maintenance of physically handicapped persons a majority of whom do not receive whole-time nursing care in the institution,

(ii)in the management of which representatives of the Minister or F3[the Health Service Executive] and representatives of the persons being maintained in the institution participate with other persons,

(iii)to which grants are paid by the Minister or F3[the Health Service Executive], and

(iv)to which paragraphs (a) and (b) of section 333 (1) of the Income Tax Act, 1967, apply, and

(h)F4[subject to subsection (3),] premises in which a majority of the persons being maintained are members of a religious order or priests of any religion F5[…], but maintenance by a person of his spouse F6[or civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010] or of a parent, step-parent, child, step-child, grandchild, brother, step-brother, sister, step-sister, uncle, aunt, niece or nephew of the person or of his spouse shall, for the purposes of this definition, be disregarded.

(2)If the Minister becomes of opinion that this Act ought to apply to a class of institution for the care and maintenance of persons that it does not apply to, he may by regulations amend the definition of “nursing home” accordingly and that definition shall have effect in accordance with any regulations for the time being in force under this subsection.

F4[(3) No prescribed subvention within the meaning of section 7(1) shall be paid to a dependent person maintained in premises referred to in subsection (1)(h) unless the premises areF7[registered under the Health Act 2007 as a designated centre within the meaning of that Act or are premises in which a person is carrying on the business of a nursing home pursuant to section 69 of that Act].]

3. Prohibition of unregistered nursing homes.

3.—F8[…]

4. Registration of nursing homes.

4.—F9[…]

5. Appeals.

5.—F10[…]

6. Regulations in relation to standards in nursing homes.

6.—F11[…]

F12[PART 2 Subventions for Dependent Persons in Nursing Homes

7. Interpretation of Part 2

7.—(1)In this Part—

“alternative subvention“means a higher alternative subvention referred to insection 7C(1)(b);

“application“means an application undersection 7A(1);

“applicant“, in relation to an application, means the dependent person who made the application;

“Executive“means the Health Service Executive;

F13[“nursing home“includes—

(a) a premises referred to insection 2(1)(h), and

(b) a nursing home in Northern Ireland which is registered under that law of, or that law applicable to, Northern Ireland that is equivalent to theHealth Act 2007;]

“prescribed amount“, in relation to a provision of this Part, means the amount prescribed in regulations made undersection 7Hin respect of that provision;

“prescribed percentage“, in relation tosection 7B(3)(b)(ii)or(4), means the percentage prescribed in regulations made undersection 7Hin respect ofsection 7B(3)(b)(ii)or(4), as the case requires;

“prescribed subvention“means the amount of a subvention payable undersection 7C(1)(a)as prescribed insection 7H(4);

“relevant subvention“means—

(a) a prescribed subvention, or

(b) an alternative subvention;

“subvention“means a payment towards the costs of the care and maintenance of a dependent person in a nursing home.

(2) No provision of this Part shall operate to prevent a personal representative (or other representative) of a dependent person who is not of full capacity from acting for or on behalf of the dependent person in relation to any matter to which any provision of this Part relates.]

7A. F14[Application for prescribed subvention.

7A.—(1)Subject tosubsection (2), a dependent person may make an application to the Executive for a prescribed subvention.

(2)An application shall be—

(a)in writing in a form approved by the Executive,

(b)completed in accordance with such directions and instructions as are specified in the application, and

(c)accompanied by such documents (including statutory declarations) as are specified in the application.

(3)The Executive may refuse to consider or further consider an application if—

(a)the application does not comply withsubsection (2), or,

(b)the applicant 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 undersection 7C(1).

(4)Where the Executive refuses undersubsection (3)to consider or further consider an application, it shall, as soon as is practicable after the refusal, give the applicant notice in writing of the decision and the reasons for the decision.

F15[(4A)The Executive shall refuse to consider an application made on or after the commencement ofsection 6 (1)(d)of theNursing Homes Support Scheme Act 2009.]

(5)Any person who knowingly gives the Executive information which is false or misleading in a material respect in, with, or in connection with, an application is guilty of an offence and liable on summary conviction to a fine not exceeding €3,000 or imprisonment for a term not exceeding 3 months or both.

7B. F16[Assessment of need for applicant to be maintained in nursing home and of means of applicant.

7B.—(1)Without prejudice to the generality ofsection 7A(3)but subject tosubsections (2)and(3), upon the receipt of an application the Executive shall make arrangements for—

(a)the need for the applicant to be maintained in a nursing home to be assessed by a person (who may be an employee of the Executive) who, in the opinion of the Executive, is suitably qualified to make that assessment, and a report thereon to be provided to the Executive, and

(b)the means of the applicant to be assessed by an employee of the Executive, or any person nominated in writing by the Executive, and a report thereon to be provided to the Executive.

(2)The assessment of an applicant’s need to be maintained in a nursing home shall be made on the basis of—

(a)the applicant’s ability to carry out the activities of daily living, including the applicant’s—

(i)degree of mobility,

(ii)ability to dress unaided,

(iii)ability to feed unaided,

(iv)ability to communicate,

(v)extent of orientation,

(vi)cognitive ability,

(vii)ability to bathe unaided, and

(viii)degree of continence,

(b)the family and community support available to the applicant,

(c)the medical services the applicant is receiving, and

(d)any other matter which affects the applicant’s ability to care for himself or herself.

(3)Subject tosubsection (4), the financial assessment of an applicant’s means shall be made on the basis of—

(a)subject to paragraph (b), all the applicant’s assets and sources of income including the applicant’s—

(i)wages, salary, pension, allowances, payments for part time and seasonal work, income from rentals, investments and savings and all contributions from whomsoever arising,

(ii)property (excluding household chattels but, if paragraph (b)(ii) is applicable, including an imputed annual income equivalent to so much of the estimated market value of the principal residence of the applicant as is not excluded by the operation of that paragraph),

(iii)stocks, shares and securities,

(iv)moneys on hand, in trust or lodged, deposited or invested,

(v)interest in any company or business (including any farm),

(vi)interests in property,

(vii)life assurance and endowment policies,

(viii)valuables held as investments,

(ix)any benefit or privilege, and

(x)assets (including moneys) which have been transferred (by whatever means) by the applicant to another person—

(I)for no consideration,

(II)for nominal consideration, or

(III)for consideration which is significantly less than the estimated market value of the asset concerned at the time the asset was so transferred,

at any time within the 5 years immediately preceding the date on which the application is made,

(b)excluding—

(i)subject tosubparagraph (vi), the principal residence of the applicant if at the time of the application and thereafter it is continuously occupied by—

(I)the applicant’s spouseF17[or civil partner within the meaning of theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010],

(II)a child of the applicant of less than 21 years of age,

(III)a child of the applicant in full-time education,

(IV)a relative of the applicant in receipt of—

(A)disability or similar allowance,

(B)blind person’s pension,

(C)illness benefit,

(D)invalidity pension,

(E)state pension (contributory) in any case where, before 28 September 2006, the relative would have been entitled to invalidity pension,

(F)state pension (non-contributory),

(G)any successor to an allowance, pension or benefit referred to in this subclause in any case where that allowance, pension or benefit, as the case may be, ceases to be provided, or

(H)any European Union equivalent to an allowance, pension or benefit, or any successor thereto, referred to in this subclause,

or

(V)a relative of the applicant in receipt of—

(A)state pension (contributory),

(B)any successor to a pension referred to in this subclause in any case where that pension ceases to be provided, or

(C)any European Union equivalent to a pension, or any successor thereto, referred to in this subclause,

which is the relative’s sole income,

(ii)subject tosubparagraphs (v)and(vi), ifsubparagraph (i)is not applicable, 95 per cent, or the prescribed percentage, whichever is the greater, of the estimated market value of the principal residence of the applicant as determined not later than 6 months after receipt of the application by the Executive,

(iii)one-fifth of the weekly rate of—

(I)subject toclause (II), state pension (non-contributory),

(II)any successor to that pension in any case where that pension ceases to be provided,

and whether or not the applicant is in receipt of that pension or any successor thereto,

(iv)the first €11,000, or the prescribed amount, whichever is the greater, of the applicant’s assets,

(v)without prejudice to the generality ofsubparagraph (i), the principal residence of the applicant in any case where not excluding that residence from falling withinparagraph (a)could reasonably give rise to the destitution or homelessness of a person having a close connection with the applicant for a period of not less than 12 months immediately before the application was made, and

(vi)without prejudice to the generality ofsubparagraph (i), the principal residence of the applicant in any case where the applicant has been paid in accordance with this Act a relevant subvention for not less than 3 consecutive years at any time following the commencement of this subsection.

(4)Where an applicant is aF17[civil partner, or a]married or cohabiting person,subsection (3)shall be construed to be a financial assessment made on the basis of 50 per cent, or the prescribed percentage, whichever is the lesser, of the combined means of theF18[applicant and his or her civil partner or spouse]or cohabiting couple, as the case may be.

(5)Subject tosubsection (6), the arrangements referred to insubsection (1)may include—

(a)in relation to the assessment referred to insubsection (2), a physical examination of the applicant concerned by, as appropriate, a registered medical practitioner, a registered nurse, an occupational therapist or a chartered physiotherapist,

(b)in relation to the assessment referred to insubsection (3), requests for information from, and interviews with, the spouseF17[or civil partner within the meaning of theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010]or any child of the applicant concerned.

(6)The arrangements referred to insubsection (1)shall not include, in relation to the assessment referred to insubsection (2), an inspection of the medical records of the applicant concerned except such an inspection carried out by a registered medical practitioner.

(7)Insubsection (3)(b)(i)(IV)and(V), "relative", in relation to an applicant, means a spouseF17[or civil partner within the meaning of theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010], parent, step-parent, child, step-child, grandchild, brother, step-brother, sister, step-sister, uncle, aunt, nephew or niece of—

(a)the applicant, or

(b)the applicant’s spouseF17[or civil partner within the meaning of theCivil Partnership and Certain Rights and Obligations of Cohabitants Act 2010].

7C. F19[Determination of application.

7C.—(1)Subject tosubsection (4)andsection 7K, the Executive shall determine an application, after having had regard to the reports provided to it pursuant tosection 7B(1)(a) and(b)in respect of the applicant, by—

(a)if it is satisfied that the applicant qualifies for a prescribed subvention, arranging for the prescribed subvention for which the applicant is qualified to be paid—

(i)subject tosubsection (2), to the applicant, and

(ii)for so long as the Executive remains so satisfied,

(b)subject tosubsection (6), if it is satisfied that the applicant qualifies for a prescribed subvention but is also further satisfied that the applicant still cannot, without undue hardship, pay all or any of the costs of the applicant’s care and maintenance in a nursing home, arranging for a higher alternative subvention to be paid in lieu of the prescribed subvention—

(i)subject tosubsection (2), to the applicant,

(ii)beginning on such date, or the occurrence of such event, as is specified by the Executive, and

(iii)for so long as the Executive remains so further satisfied,

(c)if the applicant does not fall withinparagraph (a)or(b), refusing the application.

(2)The Executive may, at its discretion, effect the payment of a relevant subvention to an applicant by paying the subvention to the proprietor of the nursing home in which the applicant is or is to be maintained.

(3)Where the Executive determines an application undersubsection (1), it shall, as soon as is practicable after the determination, give notice in writing to the applicant of the decision and the reasons for the decision.

(4)The Executive may, at its discretion, refuse to pay a relevant subvention to an applicant—

(a)if the value of the applicant’s assets, excluding the principal residence, exceeds €36,000 or the prescribed amount, whichever is the greater,

(b)if—

(i)the applicant’s principal residence is valued at—

(I)in the case of a principal residence located in the Dublin area, not less than €500,000 or the prescribed amount, whichever is the greater, and is not occupied as specified insection 7B(3)(b)(i),

(II)in the case of a principal residence located outside the Dublin area, €365,000 or the prescribed amount, whichever is the greater, and is not occupied as specified insection 7B(3)(b)(i),

and

(ii)the applicant’s annual income is not less than €10,400 or the prescribed amount, whichever is the greater,

or

(c)if the applicant does not fall withinparagraph (a)or(b)but does have an annual income of not less than €36,000 or the prescribed amount, whichever is the greater.

(5)Where the Executive refuses to pay a relevant subvention to an applicant on a ground specified insubsection (4), it shall, as soon as is practicable after the decision, give notice in writing to the applicant of the decision and the reasons for the decision.

(6)The Executive shall only determine the amounts of alternative subventions after taking into account the resources available to pay the alternative subventions.]