The Gazette 1994

GAZETTE

JANUARY/FEBRUARY 1994

home." Any person who was already in a home on 1 September, 1993 can apply for a subvention. However, after that date any person who is admitted to a nursing home before applying for a subvention (except in an emergency) is debarred from claiming a subvention for 2 years from the date of admission unless the chief executive of the health board decides otherwise. It is arguable that this provision is ultra vires the primary legislation which makes no reference to such a restriction and specifically refers to a person who 'enters or is in a nursing home'. 2,1 1) sufficiently dependent to require maintenance in a nursing home, and 2) unable to pay any or part of the cost of maintenance in the home. Assessment of Dependency Dependency refers to the level of physical or mental dependency of a person applying for a subvention in relation to the person's need for assistance with the activities of daily living such as dressing, eating, walking, washing and bathing arising from physical or mental infirmity. 28 The Regulations establish three levels of dependency; medium, high and maximum. 29 Each applicant is assessed by the health board. This must include an evaluation of the ability of the person to carry out the tasks of daily living, of the level of social support available to the person and of his or her medical condition. On the basis of this assessment the board will either offer public accommodation or assess entitlement to subvention. Qualification for a Subvention 27 To qualify for a subvention the applicant must be

Rate and Amount of Subvention 12

income equivalent to one fifth of the weekly rate of the old age (non- contributory) pension. The applicant is allowed to keep this for his or her own personal use. The board must disregard the first £6,000 of any assets. In addition, the principal residence will not be taken into account if it is occupied immediately before the application and continues to be occupied by a spouse, or child aged under 21 or in full time education, or a relative in receipt of disabled persons maintenance allowance, blind pension, disability benefit, invalidity pension or old age (non-contributory) pension. A health board may refuse to pay any subvention if the assets, excluding the personal residence, exceed £20,000 or if the principal residence is valued at £75,000 or more (and is not occupied by a spouse, or child aged under 21 or in full time education, or relative in receipt of disabled persons maintenance allowance, blind pension, disability benefit, invalidity pension or old age (non-contributory pension) and the applicant's income is greater than £5,000 per year. Assessment of Circumstances Unlike almost every other means tested scheme, the applicant's children's income can be taken into account. 11 The board can reduce the amount of the subvention based on the applicants' 'circumstances', i.e. its assessment of the children's capacity to contribute to the cost of nursing home care. This provision imposes liability on the children which does not otherwise exist in law. It is not at all clear that this is authorised by the primary legislation. Quaere if this provision is not also ultra viresl This rule applies to children aged 21 and over who are living in Ireland. The Regulations say that the board may take account of the person's circumstances which implies that this provision is discretionary rather than mandatory. All sources of income received in the last 12 months which is personal to the son or daughter will be taken into account. The board must allow various deductions from the income.

The rates of subvention vary from £70 to £120 per week depending on the level of dependency. However, these amounts may be reduced or increased in some circumstances. The board may decrease the appropriate rate of the amount by which the person's means exceed the rate of old age (non- contributory) pension. If the person was in a nursing home when the Act came into force or if was admitted to a home without applying for a subvention (and therefore subject to disqualification from the subvention for 2 years), a health board may reduce the subvention by an amount - additional to the amount by which the means exceed the old age (non-contributory) pension - by reference to the actual payments which were being made by the person on his or her behalf. So if the person has been paying £100 per week towards the cost of nursing home care, the board may reduce the subvention by £100 (with the result that no subvention may be payable). Again the Regulations say that the health boards may make these reductions so the application of this provision would appear to be discretionary. If the means and circumstances (i.e. the ability of the children to contribute to the cost of care) are assessed as less than the weekly rate of old age (non- contributory) pension, the board may pay an amount additional to the normal subvention not exceeding the rate of old age (non-contributory) pension. So, if the person's own means are less than the old age (non- contributory) pension and if his or her children are unable to contribute to his or her support, the board may increase the subvention. Appeals 11 If the person applying for the subvention is dissatisfied with a decision in relation to means or circumstances s/he may appeal to an appeals officer appointed by the Minister for Health. The appeal must be made within 28 days of receiving the notification of the decision. The appeals officer must inform the person

Assessment of Means

Means are the applicant's income and the imputed value of his or her assets, and the income and value of the assets of the spouse.-" In assessing means, the health board must disregard

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