Nursing Homes Support Scheme (Amendment) Act 2021

Type Act

Publication 2021-07-22

State In force

Source Irish Statute Book

articles 33

“(8A) The Minister may, in respect of any difficulty which arises during the period of 3 years from the commencement of section 24 of the Act of 2021 in bringing the amendments effected to this Act by the Act of 2021 into operation, by regulations do anything which appears to be necessary or expedient for bringing the said amendments into operation and regulations under this subsection may, in so far only as may appear necessary for carrying the regulations into effect, modify a provision of this Act if the modification is in conformity with the purposes, principles and spirit of this Act and the amendments effected to this Act by the Act of 2021.”,

and

(e) in subsection (10), by the insertion of “or (8A)” after “subsection (8)”.

25. Amendment of section 45 of Principal Act

25. Section 45 of the Principal Act is amended—

(a) by the insertion of the following subsection after subsection (2):

“(2A) Subject to subsection (3A), the Executive shall, as soon as practicable after the coming into operation of section 25 of the Act of 2021, and from time to time thereafter where it considers it appropriate to do so, prepare and publish a revised code of practice for the purposes referred to in subsection (2).”,

(b) by the insertion of the following subsection after subsection (3):

“(3A) The Executive shall not perform the function under subsection (2A) except after consultation with the Data Protection Commission.”,

“(a) applications for State support, applications under section 14A, 14F, 14G, 14H, 14K or 14L and notifications under section 14F or 14G (including any documents accompanying such applications or notifications),”,

and

(d) in subsection (11), by the substitution of the following definition for the definition of “relevant record”:

“‘relevant record’ means—

(a) any record which will or may assist the Executive to determine an application for State support, an application under section 14A, 14F, 14G, 14H, 14K or 14L or a request for refundable State support,

(b) any record pertaining to a notification under section 14F or 14G, or

(i) an application referred to in paragraph (a), or

(ii) a notification referred to in paragraph (b).”.

26. Annual report concerning relief in relation to farm or relevant business

26. The Principal Act is amended by the insertion of the following section after section 45:

“45A. (1) The Executive shall prepare in respect of each year (or such longer period as the Minister may, following receipt of the third report under this section, prescribe by regulations) a report containing information in relation to—

(a) the effects on the Scheme of applications and appointments made under sections 14A, 14F, 14G, 14H, 14K and 14L, determinations under sections 14C(2) and 14M(3), reviews under section 14E, decisions on repayment events under section 14I(2) and repayments under section 14J,

(b) an assessment of likely trends arising from the effects on the Scheme of those applications, appointments, determinations, reviews and repayments, and

(2) The Executive shall send a copy of each report prepared under this section to the Minister—

(a) before the end of June in the year following that to which the report relates, or

(b) where the Minister has made regulations under subsection (1), before the end of June in the year following the last year to which the report relates.

(3) For the purposes of preparing a report under subsection (1) and, subject to section 45(7), the Executive shall keep records of information in relation to—

(a) applications and appointments made under sections 14A, 14F, 14G, 14H, 14K and 14L,

(b) farms and relevant businesses to which such applications and appointments relate,

(d) reviews under section 14E,

(e) decisions on repayment events under section 14I(2),

(f) repayments under section 14J, and

(g) such other matters as may be specified by the Minister.

(4) The first report under this section shall be prepared by the Executive not later than 2 years after section 26 of the Act of 2021 comes into operation.”.

27. Review of operation of amendments effected by Act of 2021

27. The Principal Act is amended by the insertion of the following section after section 45A (inserted by section 26):

“45B. (1) The Minister shall, not later than 5 years after the coming into operation of section 27 of the Act of 2021, in consultation with the Minister for Public Expenditure and Reform, carry out a review of the operation of the amendments to this Act effected by the Act of 2021.

(2) Having completed the review under subsection (1), the Minister shall, in consultation with the Minister for Public Expenditure and Reform, prepare a report setting out the findings and conclusions consequent on such review.

(3) The Minister shall cause a copy of the report prepared under subsection (2) to be laid before each House of the Oireachtas as soon as practicable after it has been prepared.”.

28. Amendment of section 47 of Principal Act

28. Section 47 of the Principal Act is amended in subsection (9)—

(a) in paragraph (a), by the deletion of “or”, and

(b) by the insertion of the following paragraph after paragraph (a):

“(aa) to do anything—

(i) falling within paragraph (b), (d) or (e) of subsection (1) of section 21, or

(ii) prescribed under paragraph (f) of subsection (1) of that section,

unless that person is appointed as a care representative under that section, or”.

29. Right to bring another person to interview arranged by the Executive

29. The Principal Act is amended by the insertion of the following section after section 47:

“47A. Where the Executive is authorised or required under any provision of this Act to interview a person—

(a) the person may be accompanied during the interview by a person of his or her choice who has attained the age of 18 years, and

(b) the Executive shall inform the person of his or her right to be accompanied when the Executive is making arrangements with the person for the interview.”.

30. Amendment of Parts 1A and 2A of Schedule 1 to Principal Act

30. Schedule 1 to the Principal Act is amended—

(a) in paragraph 3 of Part 1A—

(i) by the insertion of the following step after step C:

“CA. Where the person is entitled to the proceeds of sale deductible amount, deduct proceeds of sale deductible amount from the amount produced by step C.”,

and

(ii) by the substitution of the following step for step D:

“D. Deduct general assets deductible amount from the amount produced by step C or, if step CA applies, from the amount produced by step CA, to produce annual assessed cash assets.”,

(b) in paragraph 4 of Part 1A—

(i) by the insertion of the following step after step C:

“CA. Where the person is entitled to the proceeds of sale deductible amount and the proceeds of sale deductible amount has not been fully used in connection with the cash assets assessment then apply the unused balance by deducting the unused amount from the total net value of relevant assets produced by step C.”,

and

(ii) by the substitution of the following step for step D:

“D. If the general assets deductible amount has not been fully used in connection with the cash assets assessment then apply the unused balance by deducting the unused amount from total net value of relevant assets produced by step C or, if step CA applies, from the amount produced by step CA.”,

(i) by the insertion of the following step after step C:

“CA. Where the person is entitled to the proceeds of sale deductible amount, deduct proceeds of sale deductible amount from the amount produced by step C.”,

and

(ii) by the substitution of the following step for step D:

“D. Deduct general assets deductible amount from the amount produced by step C or, if step CA applies, from the amount produced by step CA, to establish total assessed cash assets.”,

and

(d) in paragraph 4 of Part 2A—

(i) by the insertion of the following step after step C:

and

(ii) by the substitution of the following step for step D:

“D. If the general assets deductible amount has not been fully used in connection with the cash assets assessment then apply the unused balance by deducting the unused amount from the amount established by step C or, if step CA applies, from the amount established by step CA.”.

31. Amendment of Part 3 of Schedule 1 to Principal Act

31. Part 3 of Schedule 1 to the Principal Act is amended—

(a) in paragraph 1—

(i) by the substitution of the following definition for the definition of “family successor”:

“‘family successor’ means a person appointed under section 14A, 14F, 14G, 14H, 14K or 14L;”,

(ii) in the definition of “farm”, by inserting “, and a reference to a farm includes a reference to part of a farm” after “all residential property”,

(iii) by the substitution of the following definition for the definition of “relevant business”:

“‘relevant business’ means—

(a) the business or an interest in a business carried on by a sole trader or by a partnership, including any land, building, machinery or plant used wholly or mainly for the purpose of the business, or

(b) where a business is carried on by a company, the unquoted shares in or securities of the company,

and a reference to a relevant business includes a reference to part of a relevant business;”,

(iv) by the insertion of the following definitions:

“‘proceeds of sale’ has the meaning assigned to it by paragraph 10D(d);

‘proceeds of sale deductible amount’ means, subject to paragraphs 10A to 10D—

(a) in the case where, following the sale of the person’s interest in a principal residence—

(i) the person or his or her partner purchases an interest in a principal residence, and

(ii) the purchase price of the principal residence is less than the proceeds of sale,

an amount equal to the difference between the purchase price and the proceeds of sale,

(b) in the case where, following the sale of the person’s interest in a principal residence—

(i) the person or his or her partner acquires an interest in a principal residence for no consideration, or a relevant asset of the relevant person or his or her partner becomes the principal residence, and

(ii) the estimated market value of the principal residence (less any borrowings referred to in paragraph (c) of the definition of ‘allowable deduction’ which relate to the principal residence) is less than the proceeds of sale,

an amount equal to the difference between the estimated market value of the principal residence (less any borrowings referred to in paragraph (c) of the definition of ‘allowable deduction’ which relate to the principal residence) and the proceeds of sale, or

‘purchase price’ has the meaning assigned to it by paragraph 10D(d);”,

and

(v) in the definition of “transferred income”, by the insertion of “income earned by a family successor in the course of running a family asset or” after “but does not include”,

(b) in paragraph 6, by the substitution of “Subject to paragraph 6A, the” for “The”,

“6A. (a) Where paragraph 6 applies in relation to a person who is a member of a couple, the reference in that paragraph to the interest of the person shall be construed as a reference to the interest of the person and the interest (if any) of the other member of the couple.

(b) Where the partner of a person who has or (in the case of a transferred asset) had an interest in a principal residence does not have an interest in the principal residence concerned he or she shall, for the purposes of paragraph 6, be deemed to have or (in the case of a transferred asset) be deemed to have had an interest in that principal residence.

6B. (a) Subject to subparagraphs (b) and (c), where a determination is made under section 14C(2)(a) or 14M(3) in respect of a person who has or (in the case of a transferred asset) had an interest in a particular family asset and that determination has not been revoked in so far as relating to that particular family asset, the interest of the person in the particular family asset shall not be, or shall cease to be, a relevant asset with effect from the date specified in the determination.

(b) Where subparagraph (a) applies in relation to a person who is a member of a couple, the second reference in that subparagraph to the interest of the person shall be construed as a reference to the interest of the person and the interest (if any) of the other member of the couple.

(c) Where the partner of a person who has or (in the case of a transferred asset) had an interest in a particular family asset does not have an interest in the particular family asset concerned he or she shall, for the purposes of subparagraph (a), be deemed to have or (in the case of a transferred asset) be deemed to have had an interest in that particular family asset.

6C. (a) Subject to subparagraphs (b) and (c), subparagraph (d) applies only in a case where a person (in this paragraph referred to as the ‘relevant person’) was a member of a couple, and—

(i) paragraph 6B applies to the relevant person in relation to a particular family asset,

(ii) a family successor was appointed in respect of the other member of the couple (in this paragraph referred to as the ‘other member’) in relation to the same particular family asset, and

(iii) a repayment event has not occurred in respect of either the relevant person or the other member in relation to that particular family asset.

(b) Subject to subparagraph (c), and other than in a case where both members of a couple are receiving care services on the coming into operation of section 31(b) of the Act of 2021, subparagraph (d) shall only apply where a family successor was appointed in relation to the particular family asset in respect of the second member of the couple to receive care services before the date by which that member of the couple received any combination of relevant services for a period of one year (which period need not be continuous).

(i) the relevant person received relevant services before the coming into operation of section 31(b) of the Act of 2021, and

(ii) a family successor was not appointed in respect of the relevant person in relation to the particular family asset by the date of death of the other member,

subparagraph (d) shall apply only if the relevant person made an application for the appointment of a family successor in relation to the particular family asset within the first three months following the death of the other member.

(d) The total of the amounts of the assessed weekly means under this Act which relate to the particular family asset, arising pursuant to the financial assessment relating to the other member and the financial assessment relating to the relevant person, when aggregated, shall not exceed the relevant amount determined under subparagraph (e), and on that threshold being reached, notwithstanding any other provision of this Schedule, the particular family asset shall cease to be a relevant asset.

(e) The relevant amount referred to in subparagraph (d) shall be the amount referred to in subparagraph (f)(i) or, where any of clauses (ii), (iii) or (iv) of subparagraph (f) apply, the relevant amount referred to in subparagraph (d) shall be the aggregate of the amount referred to in subparagraph (f)(i) and the additional amount referred to in such other clauses of subparagraph (f) as apply.

(f) (i) The amount is 22.5 per cent of the relevant value in respect of the relevant person.

(ii) Where the date specified in the determination under section 14C(2)(a) in respect of the relevant person in relation to the particular family asset is later than the date by which the relevant person received any combination of relevant services for a period of 3 years (which period need not be continuous), the additional amount is 3.75 per cent of the relevant value in respect of the relevant person per annum, prorated for the relevant period.

(iii) Where a determination was made under section 14C(2)(a) in respect of the other member in relation to the particular family asset and the date specified in that determination is later than the date by which the other member received any combination of relevant services for a period of 3 years (which period need not be continuous), the additional amount is 3.75 per cent of the relevant value in respect of the other member per annum, prorated for the relevant period.

(iv) Where a determination was not made under section 14C(2)(a) in respect of the other member in relation to the particular family asset, and the other member received any combination of relevant services for a period of at least 3 years (which period need not be continuous), the additional amount is 3.75 per cent of the relevant value in respect of the other member per annum, prorated for the relevant period.

(g) In this paragraph—

‘relevant period’ means—

(a) where subparagraph (f)(ii) applies, the period between the date by which the relevant person received any combination of relevant services for a period of 3 years (which period need not be continuous) and the date specified in the determination under section 14C(2)(a) in respect of the relevant person in relation to the particular family asset;

(b) where subparagraph (f)(iii) applies, the period between the date by which the other member received any combination of relevant services for a period of 3 years (which period need not be continuous) and the date specified in the determination under section 14C(2)(a) in respect of the other member in relation to the particular family asset;

(c) where subparagraph (f)(iv) applies, the period between the date by which the other member received any combination of relevant services for a period of 3 years (which period need not be continuous) and the date of death of the other member;

‘relevant services’ means—

(a) care services (including any care services received before the coming into operation of section 5 of the Act of 2021),

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

(c) 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’ in section 3, have come within the meaning of the definition of ‘long-term residential care services’ in section 3;

‘relevant value’ means the estimated market value of the particular family asset at the date of valuation of the particular family asset in connection with the first financial assessment of the relevant person or the other member, as the case may be, less allowable deductions applicable to that asset.”,

(d) by the deletion of paragraphs 7 to 9, and

(e) by the insertion of the following paragraphs after paragraph 10:

“10A. (a) Subject to paragraphs 10B to 10D, a person (in this paragraph and paragraphs 10B to 10D referred to as the ‘relevant person’) shall be entitled to the proceeds of sale deductible amount where the relevant person or his or her partner sells (whether before or after the commencement day) the interest of the relevant person in a principal residence and the relevant person is receiving or has received (whether before or after the commencement day)—

(i) care services,

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

(iii) 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’, or

(iv) any combination of the services referred to in clauses (i) to (iii),

for a period of 3 years (which period need not be continuous).

(b) Where, but for this subparagraph, the relevant person would be entitled to the proceeds of sale deductible amount in respect of a period occurring before the commencement day, the relevant person shall not be so entitled and shall instead, by virtue of this subparagraph, be entitled to the proceeds of sale deductible amount with effect from the commencement day.

(c) In this paragraph, ‘commencement day’ means the day on which section 31(d) of the Act of 2021 comes into operation.

10B. (a) Where paragraph 10A applies in relation to a relevant person who is a member of a couple, a reference in that paragraph to the interest of the relevant person shall be construed as a reference to the interest of the person and the interest (if any) of the other member of the couple.

(b) Where the partner of a person who has or (in the case of a transferred asset) had an interest in a principal residence does not have an interest in the principal residence concerned he or she shall, for the purposes of paragraph 10A, be deemed to have or (in the case of a transferred asset) be deemed to have had an interest in that principal residence.

10C. Paragraph 10A shall apply only where—

(a) the principal residence is situated within the State, and

(b) the sale of the interest in the principal residence is completed after the relevant person begins receiving any of the services referred to in clauses (i) to (iii) of paragraph 10A(a).

10D. (a) Where a relevant person is entitled to the proceeds of sale deductible amount under paragraph 10A and the relevant person or his or her partner purchases an interest in a principal residence—

(i) if the purchase price is less than the proceeds of sale, paragraph 6 shall apply in relation to the interest in the principal residence and the relevant person shall be entitled to the proceeds of sale deductible amount under paragraph (a) of the definition of ‘proceeds of sale deductible amount’, and

(ii) if the purchase price is equal to or greater than the proceeds of sale, paragraph 6 shall apply in relation to the interest in the principal residence and the relevant person shall no longer be entitled to the proceeds of sale deductible amount under paragraph 10A.

(b) Where a relevant person is entitled to the proceeds of sale deductible amount under paragraph 10A and the relevant person or his or her partner acquires an interest in a principal residence for no consideration—

(i) if the estimated market value of the principal residence (less any borrowings referred to in paragraph (c) of the definition of ‘allowable deduction’ which relate to the principal residence) is less than the proceeds of sale, paragraph 6 shall apply in relation to the interest in the principal residence and the relevant person shall be entitled to the proceeds of sale deductible amount under paragraph (b) of the definition of ‘proceeds of sale deductible amount’, and

(ii) if the estimated market value of the principal residence (less any borrowings referred to in paragraph (c) of the definition of ‘allowable deduction’ which relate to the principal residence) is equal to or greater than the proceeds of sale, paragraph 6 shall apply in relation to the interest in the principal residence and the relevant person shall no longer be entitled to the proceeds of sale deductible amount under paragraph 10A.

(c) Where a relevant person is entitled to the proceeds of sale deductible amount under paragraph 10A and a relevant asset of the relevant person or his or her partner becomes a principal residence—

(d) In this paragraph—

‘proceeds of sale’ means an amount equal to the consideration received by the relevant person or his or her partner on the sale of the interest in a principal residence after the discharge of all mortgages and other liabilities relating to the sale;

‘purchase price’ means an amount equal to the consideration paid by the relevant person or his or her partner on the purchase of an interest in a principal residence (including the cost of any liabilities relating to the purchase) less any borrowings referred to in paragraph (c) of the definition of ‘allowable deduction’ which relate to the principal residence.”.

32. Transitional arrangements in relation to, and amendment of, certain paragraphs of Part 3 of Schedule 1

32. The Principal Act is amended by the insertion of the following section after section 48:

“49. (1) Where, immediately before the commencement day—

(a) a person is receiving care services,

(b) the person is receiving State support, and

paragraphs 7 to 9 of Part 3 of that Schedule shall, notwithstanding their deletion by section 31(d) of the Act of 2021, continue to have effect in relation to the person on and after the commencement day.

(2) Subject to subsection (3), where, immediately before the commencement day—

(a) a person is receiving care services,

(b) the Executive has made a determination under section 7(8) (a) that the person needs care services,

(d) paragraph 8(a) and (b) (but not paragraph 7) of Part 3 of Schedule 1 applies in relation to the person,

the person may elect that, having regard to the possibility that paragraph 7 of Part 3 of that Schedule may apply in relation to the person on or after the commencement day, paragraphs 7 to 9 of Part 3 of that Schedule shall, notwithstanding their deletion by section 31(d) of the Act of 2021, have effect in relation to the person on and after the commencement day.

(3) An election under subsection (2) is effective only if it is made in the specified form and submitted to the Executive before the expiry of the period of 6 months beginning on the commencement day.

(4) Where an election is made by a person in accordance with subsection (2), paragraphs 7 to 9 of Part 3 of Schedule 1 shall, notwithstanding their deletion by section 31(d) of the Act of 2021, have effect in relation to that person on and after the commencement day.

(5) (a) Where—

(i) a person is or was a member of a couple, and

(ii) paragraphs 7 to 9 of Part 3 of Schedule 1 apply or applied in relation to the partner of that person (whether before or after the commencement day),

paragraphs 7 to 9 of Part 3 of Schedule 1 shall, notwithstanding their deletion by section 31(d) of the Act of 2021, have effect in relation to that person on and after the commencement day.

(b) Where paragraphs 7 to 9 of Part 3 of Schedule 1 have effect in relation to a person by virtue of paragraph (a), it is not necessary for the conditions in paragraph 8(a) and (b) of Part 3 of Schedule 1 to be met in respect of that person provided that these conditions have or had been met in respect of that person’s partner.

(i) a person is a member of a couple,

(ii) paragraphs 7 to 9 of Part 3 of Schedule 1 have effect in relation to that person by virtue of paragraph (a), and

(iii) paragraph 7 of Part 3 of Schedule 1 applies in respect of that person’s partner,

the certification to be provided under paragraph 8(c) of Part 3 of Schedule 1 shall be provided by the same family successor who provided the certification in respect of that person’s partner.

(6) For so long as paragraph 7 of Part 3 of Schedule 1 applies in relation to a person by virtue of subsection (1), (4) or (5)(a), the person may not make an application under section 14A.

(7) (a) Paragraph 7 of Part 3 of Schedule 1 shall be deemed always to have had effect and shall, for the purposes of subsections (1), (4) and (5)(a), continue to have effect as if—

(i) the following subparagraph were substituted for subparagraph (d):

‘(d) any combination of the services referred to in subparagraphs (a) to (c),’,

and

(ii) the following provision applied to each of subparagraphs (a), (b), (c) and (d):

‘for a period of 3 years (which period need not be continuous).’,

and

(b) Part 3 of Schedule 1 shall be deemed always to have had effect and shall, for the purposes of subsections (1), (4) and (5)(a), continue to have effect as if the following paragraph were substituted for paragraph 9:

‘9. (a) Paragraph 7 shall apply to a relevant asset which is a transferred asset and which is a farm or relevant business.

(b) Where paragraph 7 applies in relation to a person who is a member of a couple, the reference in that paragraph to the interest of the person shall be construed as a reference to the interest of the person and the interest (if any) of the other member of the couple.

(c) Where the partner of a person who has or (in the case of a transferred asset) had an interest in a farm or relevant business does not have an interest in the farm or relevant business concerned he or she shall, for the purposes of paragraph 7, be deemed to have or (in the case of a transferred asset) be deemed to have had an interest in that farm or relevant business.

(d) Subparagraph (e) applies only in a case where the person (in this paragraph referred to as the ‘relevant person’) was a member of a couple and—

(i) paragraph 7 applies to the relevant person, and

(ii) paragraph 7 applied to the other member of the couple (in this paragraph referred to as the ‘other member’),

in relation to the same farm or relevant business.

(e) The total of the amounts of the assessed weekly means under this Act which relate to the farm or relevant business, arising pursuant to the financial assessment relating to the other member and the financial assessment relating to the relevant person, when aggregated, shall not exceed the amount which is 22.5 per cent of the estimated market value of that farm or relevant business at the date of valuation of the farm or relevant business in connection with the first financial assessment of the relevant person less allowable deductions applicable to that asset, and on that threshold being reached, notwithstanding any provision of this Schedule, the farm or relevant business shall cease to be a relevant asset.’.

(8) In this section—

‘commencement day’ means the day on which section 31(d) of the Act of 2021 comes into operation;

‘family successor’ has the same meaning as it had before section 31(a)(i) of the Act of 2021 came into operation.”.

33. Short title and commencement

33. (1) This Act may be cited as the Nursing Homes Support Scheme (Amendment) Act 2021.

(2) This Act shall come into operation 90 days after the date of its passing.

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