Mary Butler (Waterford, Fianna Fail) | Oireachtas source

I move amendment No. 1:

In page 5, line 24, to delete “or 14H” and substitute “, 14H, 14K or 14L”.

I flagged on Committee Stage that I would be tabling several amendments on Report Stage to provide in respect of the second partner in a couple. These second partner provisions are largely dealt with in the amendments I am presenting now. However, providing for couples in this legislation has presented many complex questions which must be carefully considered before it is finally put into operation. For this reason, alongside the already completed new provisions, I also intend to insert a regulation-making power into the Bill which will allow me, via regulations, to provide the remaining second partner provisions in advance of the Bill being commenced.

My officials are working on completing these new provisions. The regulation-making power will not extend beyond what is required to ensure that couples are properly catered for in this legislation. When considering how couples are treated in the Bill, fairness has always been the guiding principle. This is particularly relevant when considering the appointment of a family successor in respect of both members of a couple and concerning the same productive asset in cases where both members of the couple are living and also in cases where one member of the couple is deceased. To provide for the various scenarios which may occur when both members of a couple enter nursing home care and apply for relief under this legislation, three new sections have been provided, namely, sections 14K, 14L and 14M. I will discuss the sections in more detail shortly.

Many of these amendments concern the second partner, some of which are of a technical nature and some more substantive. Many of these amendments simply amend the current legislation to take into account the new sections I mentioned. Amendment No.1 is one of these. This amendment updates the definition of a "particular family asset" by adding the new sections 14K and 14L to the definition. Amendment No. 2 concerns section 3, which deals with an application for the appointment of a family successor in respect of a farm or relevant business. This amendment simply confirms that the second partner in a couple cannot make an application under this section, as he or she will be making his or her application for the appointment of a family successor under the new sections 14K or 14L. The only exception to this rule is when a repayment event has occurred in respect of the first member of the couple before the second member enters care services or such other circumstances as may be prescribed.

Amendment No. 3 concerns section 4, which deals with a charge against interest on chargeable land. This is a technical amendment reflecting the additions to section 5.

Amendment Nos. 4 to 7, inclusive, concern section 5. The duty of an executive to determine whether paragraph 6B of Part 3 of Schedule 1 applies. These are technical amendments to reflect the new sections 14K and 14 L.

Amendments Nos. 8 and 9 concern section 7, which deals with the review of compliance with conditions. Amendment No. 8 is a minor technical amendment and amendment No. 9 updates this section to reflect the new sections 14K and 14L.

Amendment No. 11 provides for the new section 14K to replace the current section 14K, which now becomes section 14N. This new section, concerning the application by a partner for the appointment of a family successor, provides for situations when the second partner enters care after the first partner is already in care. In cases where the first partner has appointed a family successor in respect of a productive asset and the six-year obligation of the family successor has not expired, the second partner, to avail of the relief available in respect of the same asset, must appoint the same family successor as the first partner. However, regarding the second partner, the family successor only needs to complete whatever is left of the six-year obligation committed to in respect of the first partner. For example, if the family successor has already completed three years of the obligation, then that person will only need to commit to a further three years in respect of the second partner, for a total of six years in respect of the given asset overall.

Amendment No. 12 provides for the new section 14K, which deals with an application by the partner of the deceased person for the appointment of a family successor.

This section provides for when the first partner appoints a family successor and dies before the six-year commitment of the family successor has expired. If, subsequently, the second partner enters care, he or she must appoint the same family successor as the first partner if any relief has already been advanced to the first partner. If no relief has been advanced, the second partner can appoint a different family successor. Similar to section 14K, the newly appointed family successor in relation to the second partner will have to complete whatever is left of the six-year obligation committed to in respect of the first partner.

Amendment No. 13 provides for the new section 14M, regarding the determination as to farm or business relief where the family successor fulfils the undertaking. This section provides for when the second partner enters care after the six-year obligation of a family successor appointed in relation to the first partner has been completed. If the second partner seeks relief under this Bill in respect of the same productive asset, the second partner does not have to appoint a family successor at all to the asset. After three years in care, the second partner can avail of the relief in respect of the asset. This section allows the HSE to make a determination, in these specific circumstances, that the second partner can get the relief offered without appointing a family successor or applying a charging order to the asset.

Amendments Nos. 14 to 17, inclusive, concern section 13 of the Bill, on the offence of giving false or misleading information to the executive under certain provisions. This section has been renumbered from 14K to 14N. These amendments are technical in nature to provide for this renumbering and to reflect the new sections 14K, 14L and 14M.

Amendment No. 18 concerns the current section 14 of the Bill, regarding the amendment of section 21 of the principal Act. Section 21 provides for the appointment of a care representative in the case of a person not having full capacity. This section will be further amended to reflect that a care representative can act on behalf of a person in care in respect of the new sections 14K and 14L.

Amendments Nos. 24 and 25 are technical amendments to the current section 20 of the Bill, which relates to the amendment of section 32 of the principal Act. Section 32 concerns the appeals process under the Act. These amendments allow for two provisions which concern repayment events to be appealed and allow provisions in the new sections 14K and 14L to be appealed.

Amendment No. 26 further amends the current section 21 of the Bill, that is, the amendment of section 36 of the principal Act. Section 36 of the 2009 Act allows the Minister to make regulations in defined circumstances and amendment No. 26 inserts a regulation-making power into the Bill to allow the Minister to make modifications to the current provisions of the Bill, specifically in relation to the second partner in a couple.

See this speech in context