Nursing Homes Support Scheme (Amendment) Act 2021

1. Definition

1.In this Act, “Principal Act” means the Nursing Homes Support Scheme Act 2009.

2. Amendment of section 3 of Principal Act

2. Section 3 of the Principal Act is amended, in subsection (1), by the insertion of the following definitions:

“‘Act of 2021’ means the Nursing Homes Support Scheme (Amendment) Act 2021;

‘chargeable land’ has the meaning assigned to it by section 14B;

‘family successor’ has the meaning assigned to it by Schedule 1;

‘farm’ has the meaning assigned to it by Schedule 1;

‘farming’ has the meaning assigned to it by Schedule 1;

‘particular family asset’, in relation to a family successor, means the asset or assets in relation to which the family successor was appointed under section 14A, 14F, 14G, 14H, 14K or 14L;

‘relevant business’ has the meaning assigned to it by Schedule 1;

‘repayment event’ has the meaning assigned to it by section 14I;

‘revoked’, in relation to a determination of the Executive under section 14C(2) (a), means revoked under section 14G(12) or 14I(3);

‘running the family asset’, in relation to a specified asset or a particular family asset, means—

(a) where the specified asset or the particular family asset is a farm, farming the farm, and

(b) where the specified asset or the particular family asset is a relevant business, carrying on the relevant business;

‘specified asset’ has the meaning assigned to it by section 14A;”.

3. Application for appointment of family successor: farm or relevant business

3. The Principal Act is amended, in Part 2, by the insertion of the following section after section 14:

“14A. (1) This section applies where—

(a) the Executive has made a determination under section 7(8)(a) that a person (in this section referred to as the ‘relevant person’) needs care services,

(b) the Executive has made a determination under section 11(1) in relation to the relevant person,

(c) the relevant person is receiving care services, and

(d) the relevant person or his or her partner falls into one or more of the following categories—

(i) he or she has an interest in a farm,

(ii) he or she has an interest in a relevant business,

(iii) he or she had an interest in a farm which is a transferred asset, or

(iv) he or she had an interest in a relevant business which is a transferred asset.

(2) On the application of the relevant person, the Executive shall—

(a) if satisfied that the conditions in subsection (3) are met, appoint the person specified in the application as the family successor in respect of the relevant person in relation to the interest that the relevant person has or had or, in the case of a relevant person who is a member of a couple, the interest that each member of the couple has or had in the specified asset, or

(b) if not so satisfied, refuse the application.

(3) The conditions referred to in subsection (2)(a) are—

(a) that the person specified in the application has attained the age of 18 years and is—

(i) the partner of the relevant person,

(ii) a relative of the relevant person or of the relevant person’s partner, or

(iii) a son-in-law or daughter-in-law of the relevant person or of the relevant person’s partner,

(b) that the relevant person declares by way of statutory declaration that, in relation to the specified asset, for a period of 3 years (which period need not be continuous) during the period of 5 years ending with the day on which the relevant person began to receive care services, a substantial part of the working time of—

(i) the relevant person,

(ii) the person specified in the application,

(iii) a person appointed as a family successor in respect of the relevant person,

(iv) a person who meets the condition under subsection (3)(a) and is specified in any other application made by the relevant person under this section which has not been refused under subsection (2)(b), or

(v) the relevant person’s partner,

was regularly and consistently applied to running the family asset,

(c) that if all or part of the specified asset is a transferred asset—

(i) it became a transferred asset on its transfer by the relevant person or by the relevant person’s partner to the person specified in the application,

(ii) it continues to be held as a transferred asset by the person specified in the application, and

(iii) the person specified in the application undertakes by way of statutory declaration to repay any sums for which he or she may become liable by virtue of section 14J(11),

(d) that the person specified in the application undertakes by way of statutory declaration that, if appointed as a family successor in respect of the relevant person under subsection (2), a substantial part of that person’s normal working time will regularly and consistently be applied to running the family asset for the period of 6 years beginning on the date of the appointment,

(e) that, except where the application relates to a relevant business which does not include an interest in land situated within the State—

(i) in a case where the specified asset is not a transferred asset, the relevant person, the relevant person’s partner and any other owner of the specified asset, or

(ii) in a case where the specified asset is a transferred asset, the person specified in the application and any other owner of the transferred asset,

each consent to the creation by virtue of section 14B(1) of a charge in favour of the Executive against the interest in the chargeable land in respect of the specified asset,

(f) that, where the specified asset is a transferred asset, each owner of the transferred asset consents to the making of the application, and

(g) that, where the relevant person is a member of a couple—

(i) except for any application under this section in relation to which a repayment event has occurred or in such other circumstances as may be prescribed, the relevant person’s partner has not made an application under this section, and

(ii) the relevant person’s partner consents to the making of the application by the relevant person.

(4) The reference to ‘care services’ in subsection (3)(b) shall be construed as a reference to the type of services referred to in paragraph (a) or (b) that the relevant person first received if before receiving care services the relevant person received—

(a) transitional care services within the meaning of section 13, or

(b) services in a nursing home which services would, if they had been provided after the coming into operation of the definition of ‘approved nursing home’, have come within the meaning of the definition of ‘long-term residential care services’.

(5) For the purposes of subsection (3)(c) it is immaterial whether the transfer was made—

(a) to the person specified in the application solely, or

(b) jointly to the person specified in the application and any other person or persons.

(6) Subject to subsection (7), the Executive may appoint more than one person as a family successor in respect of the relevant person in accordance with this section where it is satisfied that the conditions in subsection (3) have been met in respect of each person specified in an application made under this section.

(7) The Executive may not—

(a) appoint more than one person as the family successor in respect of the relevant person in relation to the interest which the relevant person and his or her partner had in a specified asset which is a transferred asset, or

(b) appoint 2 or more persons jointly as the family successors in respect of the relevant person in relation to the interest which the relevant person and his or her partner have in a specified asset.

(8) An application under this section shall be made in the specified form.

(9) In deciding an application under this section—

(a) the Executive may request information from, and interviews with, the relevant person, the relevant person’s partner, the person specified in the application and any representative (whether appointed under section 21 or otherwise) of the relevant person, and

(b) the Executive may request, receive and consider records and information relating to the relevant person, the relevant person’s partner and the person specified in the application whether received pursuant to section 45 or otherwise.

(10) The persons referred to in subsection (9) shall furnish all information and attend any interviews which the Executive may request in accordance with this section.

(11) The Executive may refuse to consider or further consider an application under this section if a person referred to in subsection (9) fails to provide the Executive with such information as may be requested by the application form or under that subsection within 40 working days from the date of the request.

(12) Where the Executive refuses under subsection (11) to consider or further consider an application under this section, it shall, not later than 10 working days after the refusal, give the relevant person, the relevant person’s partner and the person specified in the application notice in writing of the decision and the reasons for the decision.

(13) The Executive shall, not later than 10 working days after granting or refusing an application under this section, give notice in writing to the relevant person, the relevant person’s partner and the person specified in the application of the decision and the reasons for the decision.

(14) In this section, ‘specified asset’, in relation to an application under this section, means—

(a) any farm or farms specified in the application,

(b) any relevant business or businesses specified in the application,

(c) any farm which is a transferred asset, or any farms which are transferred assets, and which is (or are) specified in the application, and

(d) any relevant business which is a transferred asset, or any relevant businesses which are transferred assets, and which is (or are) specified in the application.”.

4. Charge against interest in chargeable land

4. The Principal Act is amended by the insertion of the following section after section 14A (inserted by section 3):

“14B. (1) Where—

(a) paragraphs (a) and (b) of section 14C(1) apply in relation to a person (in this section referred to as the ‘relevant person’),

(b) the Executive is satisfied that the conditions in paragraphs (a) to (f) of section 14C(4) have been met in respect of the relevant person in relation to a particular family asset, and

(c) the relevant person or the partner of the relevant person or, in the case of a transferred asset, the family successor has an interest in the particular family asset,

the Executive shall make an order in accordance with this section charging the interest in the chargeable land in respect of the particular family asset with the secured amount.

(2) The Board of the Executive may appoint a person or persons who is or are employees of the Executive to make orders under subsection (1) 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 to the Health Act 2004.

(3) An order made under subsection (1) shall be deemed to be a legal mortgage under Part 10 of the Land and Conveyancing Law Reform Act 2009 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.

(4) The Executive shall from the date of the making of the order under subsection (1)—

(a) be deemed to be a mortgagee of the property for the purposes of Part 10 of the Land and Conveyancing Law Reform Act 2009, and

(b) have, in relation to the charge referred to in subsection (1), all the powers conferred by that Act on mortgagees under mortgages made by deed.

(5) Where the Executive makes an order under subsection (1), it shall, as soon as practicable thereafter, cause the order to be registered in the Registry of Deeds or the Land Registry, as appropriate.

(6) An order made under subsection (1) 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.

(7) Any amount paid by way of increase in State support by virtue of a determination under section 14C(2) (a) in respect of a relevant person and calculated in accordance with section 14D(3), 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.

(8) For the avoidance of doubt, neither an order made under subsection (1) 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 or section 28 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010.

(9) Subject to subsection (10), notwithstanding any rule of law or statutory provision, where a mortgage is created by reason of an order under subsection (1) 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 amounts paid by the Executive by way of increase in State support by virtue of a determination under section 14C(2) (a) in respect of a relevant person after the date of the subsequent mortgage whether the Executive did or did not have notice of such subsequent mortgage.

(10) Subsection (9) 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.

(11) The relevant person, his or her partner, the family successor and any other person who has an interest in the chargeable land 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 (1) in the Land Registry or Registry of Deeds.

(12) Where a relevant asset of the relevant person or of the relevant person’s partner ceases to be chargeable land for a reason not related to paragraph (b) of the definition of ‘chargeable land’ in subsection (18)—

(a) (i) in the case of a relevant asset which is not a transferred asset, the relevant person (or the relevant person’s care representative, if any) or, if applicable, the relevant person’s partner (or the partner’s care representative, if any), or

(ii) in the case of a relevant asset which is a transferred asset, the family successor,

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 amount of increase in State support payable by virtue of a determination under section 14C(2)(a) in respect of the relevant person which relates to the former chargeable land as calculated in accordance with section 14D(3).

(13) Where the relevant person or, as the case may be, the relevant person’s partner or the family successor transfers any part of an interest in the chargeable land that person shall give notice of such transfer to the Executive within 10 working days of the date of the transfer.

(14) Amounts paid by way of increase in State support by virtue of a determination under section 14C(2)(a) in respect of a relevant person shall be deemed to have been paid to and for the benefit of the relevant person 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 or, in the case of a transferred asset, to and for the benefit of the family successor and any other person who has an interest in the transferred asset.

(15) Where amounts are paid by way of increase in State support by virtue of a determination under section 14C(2)(a) which by reason of subsection (14) are deemed to have been advanced to both members of a couple, the liability of the members of the couple in relation to such advances shall be joint and several.

(16) (a) An order made under subsection (1) shall be in the form prescribed by regulations made under section 36, and may be made—

(i) by an appointed person, and

(ii) in electronic form.

(b) Where an order under subsection (1) is made in electronic form, an appointed 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.

(17) Where an order under subsection (1) made in electronic form purports to have been made by an appointed 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.

(18) In this section—

‘appointed person’ means a person appointed by the Board of the Executive for the purposes of—

(a) making orders under subsection (1),

(b) transmitting orders by electronic means to the Property Registration Authority in accordance with subsection (16), and

(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;

‘chargeable land’ means an asset which is a relevant asset of the relevant person or of the partner of the relevant person, or of both of them, and which—

(a) comprises or forms part of a particular family asset,

(b) is an asset which is included in the computation of the assessed weekly means of a person, and

(c) comprises an interest in land, which land is situated within the State;

‘interest in the chargeable land’ means—

(a) the interest of the relevant person,

(b) in the case of a relevant person who is a member of a couple, the interest of each member of the couple, or

(c) in the case of a transferred asset, the interest that the relevant person had or, in the case of a relevant person who is a member of a couple, the interest that each member of the couple had,

in the chargeable land;