Mary Harney (Dublin Mid West, Progressive Democrats)

I move: "That the Bill be now read a Second Time".

Of all our needs as human beings, perhaps the deepest are for family, health and home. They touch on our most profound psychological security and sense of well-being. Following closely is the need for financial security. Not all of us are fortunate enough to live all our lives in a loving family, enjoy constant good health or have a home of our own. Few of us have no financial worries. If the security of just one of these, family, health or home, become an issue or are called into question it can be emotionally difficult. If all three are at issue it is not just unsettling but traumatic. When financial issues are added, it can seem overwhelming. That is what many families and individuals face at the moment when there is no option but to move out of home and into a nursing home. That moment is often put off for many years. Adult children are often beseeched to avoid making the decision in question, which no one ever wants to make. At that moment, there is just one realistic option if a loved one is to get the best possible care. At such a time, everything possible must be done to reduce upset and insecurity, to give assurance, to provide the best possible care and to put the interests of the person needing care above all other interests.

The House has an opportunity to put the best interests of each person who needs care above all else, to provide reassurance and to remove financial issues from all the strains of that most difficult moment in the life of any individual or family. Less than one in 20 people over the age of 65 will ever develop high dependency needs, fortunately. Therefore, relatively few people will need to deal with the need for long-term residential care. Approximately 25,000 are in such a position at present. This legislation will help them and future generations. It will also assist people under the age of 65 who need long-term care. I refer to those who have high-dependency needs as a result of debilitating conditions, for example. This Bill will reassure those who fear they may need long-term care in the future, even if that never comes to pass.

This House does not often get an opportunity to pass legislation that fundamentally improves people's lives, even if we are talking about just one person in 20 in this instance, while at the same time introducing a fundamental and comprehensive new system of long-term care support. This legislation provides for the cost of nursing home care to be shared fairly, introduces a clear and consistent standard for assessing the care needs of everyone and provides for a new legal support — the care representative — to assist people with diminished mental capacity. We are bringing order to what has been a mess. We are making fair what has been unfair. We are making consistent what has been haphazard. We are making sure what has been in doubt. What has been unsettling will be reassuring. What has been unclear will be clear. What has been unpredictable will be predictable.

It was deeply unfair that people of the same means faced radically different costs for nursing home care, depending on where they lived or whether the nursing home was public or private. It was deeply unfair that a person with modest means could face high care bills, while another person might pay relatively little even though he or she had substantial means and assets. We are fixing that. It was deeply unfair and unsettling that many people and their families had no option but to sell the family home to pay for care. As a result of this legislation, no one will have to do that any more. It was inconsistent and unfair that care needs assessments, means assessments and financial support varied across the country, depending on the health board area one lived in. This legislation will provide for consistency for everybody. People often felt uncertain and doubtful when considering how, when and to whom public nursing home places were available. This mattered, not least financially. In a public nursing home, nobody, no matter how well-off, was charged more than the equivalent of 80% of the State non-contributory pension. In a private nursing home, even with subvention payments, the cost to an individual was substantial. The State met 90% of the cost of public nursing home care, but just 40% of the cost of private nursing home care. We are putting this right.

Families face deeply unsettling issues when there is doubt about the mental capacity of a loved one who needs care and when legal and financial arrangements need to be addressed. We have a deep obligation to prioritise the interests of such a person. Up to now, it was unclear how we could do this, short of availing of the ward of court system. This legislation offers reassurance and provides a new legal protection to help individuals and their carers. The public and private care provision services have been operating in parallel, with increasingly blurred lines and unintended effects for patients. We will now have one system for all people who need care and for all providers of care. The system, which involves different contributions, will be based on a fair means test. It was described by the National Economic and Social Council, in its report, The Developmental Welfare State, as a type of "tailored universalism". It is designed to be sustainable for many years to come, when the number of older people in our population increases and through the ups and downs of economic cycles. The State will continue to meet approximately 70% of the cost of long-term care for the population. I am particularly pleased that the Government has decided to introduce the system despite the difficult economic circumstances we face.

This legislation is the immediate product of four years of work by many people. When the problem of illegal nursing home charges became evident, I decided that we needed to start from the beginning by fixing the fundamentals and dealing with all the anomalies that had arisen. Many people contributed to this work before and after 2004. I refer to Deputies and Senators, the Ombudsman, the social partners, clinicians, leading academics, specialists in the public service and, most of all, the families of those in long-term care. Many previous health Ministers played a part in trying to alleviate the burdens faced by people who need long-term care. They worked on the nursing home subvention scheme and other matters in good faith. The anomalies and inconsistencies I have mentioned ultimately needed to be addressed as part of a fundamental overhaul of the system. I am proud of the legislation that has been produced to that end. I am proud to have the privilege of bringing it to the House. I am proud of the work of the officials in the Departments of Health and Children, Finance, the Taoiseach, Social and Family Affairs and Justice, Equality and Law Reform, the Office of the Attorney General and the Courts Service who contributed to the legislative process. Above all, I am proud that this legislation puts our loved ones who need long-term care first. Rightly, in my view, it is a fair deal.

I propose to briefly outline the main provisions of the legislation before the House. Section 3, which sets out the scope of the Bill, defines certain terms used in it. The definitions of "long-term residential care services" and "approved nursing home" are of primary importance because, essentially, they circumscribe the scope of the scheme. The definition of "long-term residential care services" refers to maintenance, health and personal care services which are provided in designated public and voluntary facilities and approved private nursing homes. Such services must be provided for not less than 30 consecutive days, or periods aggregating not less than 30 days, within a period of 12 consecutive months. For the sake of clarity, the definition also explicitly excludes certain services, such as respite care services. To qualify as a designated facility, a public or voluntary facility will have to be designated in writing by HSE as being a facility that is predominantly used for the care of older people and will have to provide 24-hour rostered nursing care.

To qualify as an "approved nursing home", a private nursing home will have to be registered under the appropriate legislation, reach an agreement with the National Treatment Purchase Fund on the maximum price charged for care under the scheme, be tax compliant and provide 24-hour rostered nursing care. Another key term used in the Bill is "financial support". This encompasses straightforward financial assistance towards nursing home costs, which is referred to as "State support", and the option to defer payment of certain contributions during one's lifetime, which is termed "ancillary State support".

Section 4 defines a "couple" for the purposes of the scheme. A couple is defined as either a married couple, or a heterosexual or same sex couple who have been cohabiting as husband and wife for at least three years. In each case, the people in the couple must have been habitually living together when they applied for State support or when they began to receive care services. Sections 5 and 6 set out the rules governing the establishment of, and eligibility for, the scheme. Section 5 establishes the nursing homes support scheme and stipulates that the scheme is resource-capped. Therefore, the scheme is premised on the principle of eligibility rather than entitlement. Section 6 further provides that eligibility for the scheme extends to those who are ordinarily resident in the State. In other words, the scheme is not limited to older people.

Sections 7 and 8 relate to the assessment of care needs. Section 7 provides for a care needs assessment to be carried out to ascertain whether a person needs long-term residential care services. It stipulates who may carry out such assessments and what factors may be taken into account. These factors include the person's ability to carry out the various activities of daily living but also the medical and social supports available to the person.

Section 8 sets out the basis for unsuccessful applicants to seek a review of care needs. Sections 9 and 10 provide for an application for State support and for a subsequent financial assessment of means to establish the contribution an individual may have to pay towards the cost of his or her care. Section 10 stipulates that the assessment shall be carried out in accordance with Schedule 1. Parts 1 and 3 of the Schedule set out the rules for calculating the contribution payable by a single applicant. In summary, a person will make a contribution of up to 80% of income and up to 5% of the value of assets, after deductions and safeguards have been applied. Parts 2 and 3 of the Schedule contain the rules in respect of the contribution payable by a member of a couple. In this case, the assessment is based on the principle of each member of the couple owning 50% of the couple's combined means. A person who is a member of a couple has an annual assessed contribution of 40% of the couple's combined income or 80% of half the combined income and 2.5% of the couple's combined assets or 5% of half the combined assets.

The Bill contains a number of safeguards to protect the income and assets of care recipients and their spouses or partners and the residual value of the principal residence. These include the "minimum retained income threshold", which ensures a person entering care must retain at least 20% of the maximum rate of the State pension while the spouse or partner remaining at home must retain at least the maximum rate of the State pension; the "general assets deductible amount" or asset disregard, which stands at €36,000 for an individual or €72,000 for a couple; and the cap on the principal private residence, which ensures contributions based on the residence will be payable for the first three years of care only. This is often termed the 15% cap.

Sections 11 to 14, inclusive, set out the basis for determining applications and for paying State support. They provide that, subject to resources, the State will pay the full difference between the total cost of care services and a person's contribution. This State support will be paid directly to the relevant nursing home on behalf of the person. In the case of existing residents whose nursing homes are approved under the scheme, State support will be paid from the date of full commencement of the legislation.

Sections 15 to 18, inclusive, provide for another important feature of the scheme, namely ancillary State support, which is an additional support designed to ensure people do not have to sell assets such as their home to meet their care costs. It enables people to defer contributions payable on Irish land-based assets for the duration of their lifetime. It may be thought of as a loan advanced by the HSE and recouped at the settlement of the person's estate. The payment of ancillary State support is subject to a charging order being placed against the asset of the person to secure the amounts advanced. The HSE will register the charging order in the Registry of Deeds or Land Registry, as appropriate. The Bill also provides that ancillary State support will be paid directly to the relevant nursing home on behalf of the person and that it may be paid to a person even though he or she does not qualify for State support.

Sections 19, 20 and 26 deal with repayment. Section 19 stipulates the events which trigger the repayment of ancillary State support. These are termed "relevant events" and principally include the death of the person or the sale or transfer of the asset concerned. Section 20 provides for a further deferral of the repayment of ancillary State support in the case of the principal private residence. The people who can avail of this are the spouse or partner of the original applicant or certain relatives termed "connected persons" who satisfy the following conditions: the asset in question must be their only residence; they must have lived there for not less than three years preceding the original application for ancillary State support; and they must not have an interest in any other property. Where people avail of this section, repayment will be deferred for the duration of their lifetime unless they cease to qualify as a connected person or the asset in question ceases to be their principal residence. Section 26 provides that Revenue will be the collection agent for the repayment of ancillary State support.

Sections 21 and 22 make provision for care representatives. Part 4 provides for an innovative new feature within the scheme, namely that a person may apply to the Circuit Court to be appointed as a care representative of a particular person. The appointment of a care representative is only necessary where a person does not have full capacity and wishes to avail of ancillary State support. However, a person appointed as a care representative may assist with any matter relating to the scheme. The Bill adopts a functional-based approach to determining capacity, which is consistent with the recommendations of the Law Reform Commission.

Under section 21, a person is considered to lack the capacity to make a relevant decision if he or she is unable to understand the information relevant to the decision, retain that information, use or weigh that information as part of the process of making a decision or communicate his or her decision by any means. A person must be certified by at least two registered medical practitioners as lacking the capacity to make a relevant decision for a care representative to be appointed. The individuals who may apply to be appointed as a care representative are the spouse or partner of the person; a parent, child, brother or sister of the person; a niece, nephew, aunt or uncle of the person; or a registered medical practitioner or other health practitioner other than the proprietor of a nursing home in which the person resides or is likely to reside.

Section 22 is a technical provision, which amends the Courts and Courts Officers Act 1995 to allow for the appointment of care representatives by county registrars in uncontested cases.

Sections 23 to 25, inclusive, provide for the notification of certain specified matters, including the death or discharge of a nursing home resident and a material change in the circumstances of a person or connected person.

Section 27 deals with schedules of assets and it applies to a deceased person to whom financial support was provided or to whose partner financial support was provided. The personal representative of such a deceased person must provide the HSE with a written notice of his or her intention to distribute the deceased's assets and a schedule of such assets at least three months before beginning to distribute the assets. The HSE has the authority to request that sufficient assets are retained to repay any amount due to it, which is consistent with social welfare legislation.

Section 28, which refers to joint ownership, is a technical provision that ensures a charging order in respect of ancillary State support shall not cause the severance of a joint tenancy or be rendered void due to the absence of the prior consent of the other joint tenants. The section seeks to protect both the interest of the HSE and of the other joint tenants.

Sections 29 to 31, inclusive, concern reviews and appeals. A person or the HSE may seek a review of the person's care needs, his or her financial assessment or the amount of ancillary State support payable. In addition, a person may appeal certain decisions of the HSE, including decisions taken regarding his or her care needs and his or her application for State support. A person may also appeal the inclusion of income and assets transferred prior to 9 October 2008 in the financial assessment on grounds of hardship.

Section 32 is a technical provision ensuring the existing legal basis for charges, including the exclusion of certain care groups from charges, is maintained. Section 33 is also a technical provision. In line with the Government's commitment, it ensures existing public residents will not be worse off as a result of the new scheme. It also provides that a person in an acute hospital bed who has finished his or her acute phase of care may be charged as if he or she were in receipt of long-term residential care services. This provision is necessary to ensure there is not a legal incentive to remain in an acute hospital bed following discharge.

Part 9, covering sections 34 to 46, inclusive, contains a number of miscellaneous provisions. These include technical and standard provisions concerning the making of regulations, the maintenance of records and so on. They also include transitional provisions providing that the nursing home subvention scheme will cease for new applicants from the full commencement of the legislation but that existing private nursing home residents can remain on subvention rather than transferring to the new scheme, if they so wish. Sections 38 and 39 empower the National Treatment Purchase Fund to negotiate prices with private nursing home providers for the purposes of the scheme. Section 41 renders explicit the common law principle that a person providing necessary services to a person of diminished capacity for the latter's benefit may expect to be paid for such services.

I have detailed the key provisions contained in Schedule 1 and, therefore, I would like to conclude by clarifying the final part of the Bill, Schedule 2. Schedule 2 sets out the procedure for adjusting the amounts repayable in respect of ancillary State support. This adjustment will reflect the rate of inflation, as measured by the consumer price index, between each year in which contributions were deferred and the year in which the debt falls due. In other words, the State will take account of the time value of money.

The Bill is fundamental in meeting the commitment given in Towards 2016 that State support should be equal for public and private care recipients. Critically, it offers assurance to the most vulnerable of groups in our society — those in need of long-term nursing home care — that such care will be affordable and will remain affordable for as long as they need it. I commend the Bill to the House and I look forward to hearing the views of Deputies.

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