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

Qualification for a Subvention

To qualify for a subvention the

applicant must be

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.

The Regulations establish three levels

of dependency; medium, high and

maximum.

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.

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

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.

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.

Rate and Amount of Subvention

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

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