Thursday, 19 October 2006
Health (Nursing Homes) (Amendment) Bill 2006: Report Stage
I move amendment No. 1:
In page 5, line 7, to delete "(including statutory declarations)".
I asked the Minister of State about this matter on Committee Stage. Why are we putting elderly patients through the need to see solicitors or commissioners for oaths to get application forms signed as statutory declarations? It would be an unnecessary burden. The Minister of State stated on Committee Stage that this provision might be needed in some cases, but he has not clarified what proportion of cases would cause us to target elderly people in this way or make the system more bureaucratic. Will the Minister of State give the House additional information?
I will not accept the amendments, both of which relate to the application process for subventions. It is reasonable to request a statutory declaration, particularly if significant sums of money are involved.
A statutory declaration may help a person to focus on the necessity to include all income assets and so on in his or her application. This is a standard provision included in Bills. While the measure provides certain powers, it would only be enforced in exceptional circumstances and not as a matter of course.
Amendment No. 2 was not accepted on Committee Stage because the Health Service Executive is obliged to act reasonably and fairly when processing applications, which it does. It is not considered necessary to include the provision set out in the amendment.
I have made inquiries, but I cannot state a percentage. While I am told that such statutory declarations are seldom sought, it is felt that this power is necessary. It will only be used in exceptional circumstances.
I move amendment No. 3:
In page 5, between lines 24 and 25, to insert the following:
"(5) (a) A person applying for a subvention, or a person acting on his or her behalf, may appeal, to an appeals officer designated by the Minister, on the grounds of—
(i) his or her means and circumstances, or
(ii) any abatement of the rate of subvention to that person of the maximum rate appropriate to that person's level of dependency, against a decision of the Executive—
(I) not to pay a subvention, to pay a lower amount of subvention than the maximum rate,
(II) to withdraw a subvention, or
(III) to reduce a subvention, within 28 days of the date on which the Executive notified the person of its decision and the grounds for its decision.
(b) The designated appeals officer shall consider an appeal under paragraph (a) and shall inform the person making the appeal of his or her decision within 28 days of the receipt of the appeal.
(c) For the purpose of deciding the appeal, the designated appeals officer may request information from the Executive and from the person to whom the appeal refers or a person acting on his or her behalf.
(d) A decision of an appeals officer shall be final and conclusive.
(e) Where the Executive has determined that a person does not qualify for a subvention, or qualifies for less than the maximum rate of subvention, it shall inform the applicant of his or her right to appeal the decision under this subsection.".
All of our arguments on Committee Stage centred on these amendments. While I was expecting clarity from the Minister of State in the meantime, he only provided it in two respects. The HSE's appeals procedure for nursing home subventions is not the new procedure we expected. It states that an appeal is a request by a person for the re-examination of a decision made on his or her application for a nursing home subvention in respect of a refusal of the amount awarded under the 1993 nursing home regulations, but these regulations will be out of date once this legislation is enacted.
My second piece of information concerning the Minister of State's thoughts is the press release we dragged out of him by making the charge that this legislation will force elderly people who live alone to sell their homes if they require subventions. He stated that this matter has been agreed with the social partners. Not only do I not know which social partners were involved in the discussion, but I do not know the views of elderly people's advocacy groups such as Age Action Ireland and the Irish Patients Association or whether they have spoken to the Minister of State.
Not only is the legislation piecemeal and scattered, but the Minister of State is trying to take houses away from elderly people. He has given no indication otherwise. I tried to make sense of his press release, but he has his party leader's habit of talking in riddles. It is the same old story. While the Minister of State says the legislation will improve matters, it will copper-fasten provisions that make it difficult for elderly people to get subventions.
Amendment No. 3 relates to the HSE guidelines. Deputies will traipse into the Chamber to vote on the Bill at 1 p.m., but is it realistic to expect us to do so before the appeal guidelines are published? This is a disgrace. This morning, Deputy Rabbitte stated the Government cannot put legislation together and the Tánaiste told the House that the amount of work we will do in 2007 will be brilliant, but this legislation is not clear and the Minister of State refuses to answer straightforward questions. He should not table such legislation until the guidelines have been published. He has no social service inspectorate and no HIQA legislation. The protections we are talking about for elderly patients, not only in nursing homes but when they are trying to get into nursing homes, do not exist. I do not know whether these come under the amendments being discussed, but there are a number of other matters that have been highlighted here in this regard.
When I first looked at this legislation, I assumed it was only elderly people who were living alone who were at greatest risk of having their house, of any value as opposed to of the value of €300,000 in some areas and €500,000 in others, taken from them. Often I assumed they were the only people under threat.
This also needs to be explained. If an elderly person living in a house of substantial value with a daughter or son ended up going into a private nursing home, the State might force that son or daughter to sell that house. The legislation uses the words "could reasonably give rise to destitution or homelessness of a person having a close connection with the applicant for a period of not less than 12 months". On giving rise to destitution or homelessness, the Minister of State might well state the value of the house is so high that if they downsized to a smaller house, that would not lead to destitution or homelessness. Even a relative could be forced to move out of their house to a smaller house.
The same applies with the financial assessments made on 50%. That means the State will also possibly be looking at the income, for instance, of a gay couple living together. The Minister of State has not made that clear either.
What is going on here needs to be made crystal clear to everybody and that is why I will keep pushing these amendments until the Minister of State gives me a full and proper explanation. I will wait to hear some of the Minister of State's answers on this.
When he made a press statement last week, I went to the trouble of going through his Second Stage speech to see exactly whether he was making this clear. He stated that I was wrong in some of my statements, but he is making it quite difficult here for elderly people and he must explain some of the matters which he did not explain clearly on Committee Stage.
There is one important point I want the Minister of State to make crystal clear for us. On Committee Stage, he stated "The principle of co-payment for long-term care is one that was accepted by the working group on long-term care which we established and is reflected in the social partnership agreement." What does he mean by co-payment? This is his opportunity to add clarity to this. I do not want to hear any more about a Cabinet sub-committee looking at funding for long-term care of the elderly. He is making that decision on this legislation. He is taking the house from the person and this is the core principle of much of what he is talking about. If the Minister of State is stating that co-payment is the way forward in funding long-term care, it is time for him to stand up and state exactly what is co-payment. Co-payment, as the legislation stands, means basically that elderly persons who own their homes are in trouble when it comes to getting subvention.
Since some of these regulations were more or less passed on to the HSE last Christmas we have been aware there are difficulties. Some people are saying this is not being implemented uniformly across the country, but this legislation will make it apply uniformly and it will be a great deal more difficult for elderly people.
In some respects, if this information is not disseminated from this Chamber, the Minister of State will get away with it.
He knows that. Unfortunately, some of the advocacy groups have not been saying as much as they could because perhaps they receive their funding directly from the Minister of State, which is another issue at which we should look. We need to get clarity on this before his party colleagues come marching in here to vote on this at 1 o'clock. I will hear what the Minister of State has to say first before I pursue this issue further.
I echo the concerns expressed by Deputy Twomey. There are many questions about this legislation. Generally, there is not an argument about having some kind of rational, fair, humane system of assessing subvention across the country because at present it is quite clear there are variations that militate against individuals living in different parts of the country. However, the one aspect we cannot accept is a regime that will be harsh on people who are vulnerable already.
We must remember that the Government record on protecting the rights of the elderly, and making sure they feel secure and safe, is not good. The illegal taking of money from residents in public nursing homes and public welfare homes extended over a number of Governments. Nobody argues that point. However, the record of Fianna Fáil and the Progressive Democrats is particularly shameful, both in terms of when this matter was first raised at a Cabinet meeting by a previous Government, the incoming Fianna Fáil Government dropping the entire issue, and then the former Minister for Health and Children, Deputy Martin, not reading his brief, or stating he did not read it, and nobody around him seeming to have the capacity to read a brief either, resulting in the bill increasing significantly and the taxpayer now paying the price.
It should be pointed out that the Minister for Health and Children, Deputy Harney, insisted on essentially privatising the payback scheme. I was given a letter, which my colleague, Deputy Quinn, wrote in response to a constituent, which clearly shows that the payback scheme — one must remember this is elderly people getting back the money which was robbed from them — is not operating in an open and accountable way. The letter Deputy Quinn wrote showed clearly that when a Member of this House went looking for simple answers about a scheme for elderly people, it was impossible for him to get the information and he wrote back to his constituent stating "I really do not know how to help you because I cannot get the answers." This person wanted to know when payment would be made. In particularly tragic circumstances where the individual who is in a public nursing home is very ill, there is a certain urgency on it and none of the family can get answers. That is quite disturbing.
This is the Government that refuses point blank to publish a report on Leas Cross nursing home, which it promised would be published. There is nothing to stop the Minister from publishing this report. It should have been published long ago. It was given to the HSE in May. Under the Health Act, the Minister has the power to publish.
The record is not good. When we come to this legislation, there are legitimate concerns being raised by Deputy Twomey, others and myself about how people's income will be assessed and whether or not somebody with a family home is being penalised. Given the provisions in the Bill, that is exactly what is happening.
We should be clear about this. Organisations which exist as advocates for elderly people are also expressing grave concern that this legislation will lead to elderly people being forced to sell their homes in certain circumstances. One must remember that these are not necessarily elderly people who will remain in a nursing home forever. They may become sufficiently well to move out again, but will not be able to do so because the family home has been sold to pay the bills. Quite apart from compassion, there is no logic in that kind of scenario unfolding.
It is important to put on the record what Age Action Ireland has to say about this Bill. The Minister of State can say he is looking after the interests of the elderly but we must look to the advocates of the elderly who have a great deal of experience and a good track record and reputation in making sound judgments. Age Action Ireland is urging that this Bill be amended because, if implemented, it will force a number of people to sell their homes or enter into equity release arrangements against their will. The organisation makes a bald statement, with which I agree: "Nobody should be forced to sell their home in these circumstances". The head of advocacy and communications of Age Action Ireland states:
Older people, many of whom have paid their taxes for 40 years, did so in the belief they had a social contract with the State which included provided for their basic health needs. That contract cannot now be torn up. In many cases, older people have spent their entire savings to pay their nursing home bills and their home is their last asset.
Age Action Ireland believes that people of all ages should be treated equally by the State when it comes to health care. If a person in their 30s or 40s were to become to seriously ill, leaving them in need of nursing home care the rest of their lives, the state would not force them to sell their home. Neither should older people in need of nursing home care.
Only five per cent of older people are resident in nursing homes. Many of these would prefer to live in their homes, but are unable to do because of inadequately funded community care.
It is important that we get this right and recognise there must be a fair system, which does not force people into taking actions contrary to their will. However, there must also be a good, sound appeals system to make sure where somebody has not secured the right decision, he or she has the capacity to come forward and trust the appeals system in place. The issue of the family home pervades the legislation, whether that relates to somebody else living in the home or the thresholds that apply to the value of the home, which are ridiculous. It makes no sense that the threshold in Dublin is €500,000, while the equivalent in Galway city is €300,000. Deputy Wall and the Minister of State are both from Kildare and the threshold of €300,000 for that county makes no sense. I live in Wicklow and a similar threshold applies but one would not buy a house for that amount in the county. Once the value of the house exceeds the threshold, the entire valuation of the house is taken into account.
I support the amendments. They try to pin down a fair regime, for which the Government has not provided, but the core issue of the family home has not been addressed. We need to deal with that if the legislation is to be fair. We need to recognise the contribution made by elderly people and the necessity to provide services for them so that they can remain at home and, where they are unable to stay at home, to make sure they receive residential care. Patients will be charged for residential care but proper safeguards will not be provided regarding inspections and a statutory-based system of safety. That is not good enough and the Minister of State must take responsibility for where he is now.
In welcoming this legislation on Second Stage, I contextualised my remarks saying they were being made on the understanding that we are examining placing the existing scheme or schemes on a sounder footing and providing for the current subvention arrangements in primary legislation so that the approach to them would be standardised across the State. Those are important premises on which to make a judgment of the legislation. Amendment No. 3 is tabled in this spirit because we want a sounder basis in every respect. When I make a judgment call on legislation, and its intent is to improve, which it should always be, I am prepared to evaluate it soundly.
Deputy Twomey's amendment seeks to do exactly that regarding the appeals process. He is quite precise and particular. The amendment states clearly, "an appeals officer designated by the Minister". That is a particular. Somebody has a clear designation and responsibility and he or she will have the required training, credentials and experience to act in that capacity and undertake the role of an appeals officer. What does the Minister of State propose? The proposed new section 7E(3) states, "Where the Executive receives an appeal under subsection (1), it shall appoint a person (who may be an employee of the Executive) to consider the appeal" while section 7E(4) provides that the person appointed pursuant to subsection (2) to consider an appeal under subsection (1) shall comply with guidelines, consider any written or oral objections, make a decision and send a copy of the relevant decision to the relevant person and the executive. I am concerned that the preparation of the legislation in regard to the appeals process is weak and open to abuse and misuse and is, in no way, firm or directional. Appointing a person, perhaps an HSE employee, who must comply with the guidelines, consider objections, make a decision and forward a copy of the decision means there is a huge gap between the legislation, which is before us for final consideration, and the amendment tabled by Deputy Twomey, which is quite specific that an appeals officer, not simply "a person", shall be appointed.
On receipt of an appeal who will be appointed? It could be a case of Johnny or Mary running by and, because he or she is not doing anything, being asked to take the appeal and make sure he or she complies with the guidelines, consider any written or oral objections, make a decision and send it to the relevant person. Where in the wording will people find confidence, assurance and the certainties that are required? On Committee Stage, the Minister of State responded to these proposals by saying appellants would have recourse to the courts. We do not want to commend such a course to them. We want to recommend to them a safe, sound and solid basis for appeal within the system. That is not clear in the legislation. It requires to be addressed and it absolutely requires amendment.
Amendment No. 3 meets the criteria necessary to give the required assurance to people that a proper appeals mechanism is in place. I appeal to the Minister of State to reconsider his rejection of the amendment on Committee Stage. Nothing he said at the time gives me an understanding of the reason he and his colleagues in the Department rejected this reasonable, important and necessary amendment.
My hope is that the Minister of State will not trundle out the same inadequate responses he did on that occasion. They simply do not measure up to the requirement. This Bill, if it is to proceed on the basis the Minister of State commended to the House up to this point, will be significantly flawed and open to abuse by officials and those who would be more dilatory in their approach to their responsibilities within the system. Public confidence will be sorely and severely affected as a result.
One role we, as elected voices, have is to act as a buffer between the system and the people. If this wording stands and becomes the substantive wording within the final, passed legislation, how can we put our hand on our heart and claim we have confidence in it and commend it to our respective electorates? We cannot do so. The wording requires address. The issues other speakers and I have articulated to the Minister of State during the debate must be taken on board.
I urge the Minister of State to accept the amendment in the spirit of ensuring the best legislation and meeting the criteria I laid out in my considered welcome of this legislation on Second Stage, namely, that it seeks to place the whole subvention process on a sounder basis. That must be the objective.
The Minister of State will be delighted to know that. The message is clear. A proper appeals mechanism is required, as far as the Opposition is concerned. I appended my name to the amendments because I do not see provision for such a mechanism in the Bill. In any system we need to have fairness and justice, and also what we call a separation of powers so the same people who are making decisions in regard to subventions are not those who will make later decisions. The amendment is based on common sense and I do not know why the Minister of State would reject such a sensible provision. I ask the Minister of State to reconsider the matter.
I fully support the amendment put forward by Deputy Twomey. The Bill has worried me from the beginning. I have at every opportunity tried to create interest in it among various groups from the perspective of members of the public pressuring elected representatives in their home areas as to the magnitude of the concern this measure will cause among senior citizens. It is not correct to accept that the only means available to a senior citizen is to go to the courts in this regard. At the time a person is seeking nursing home subvention, that person is at his or her weakest. People are seeking assistance and do not want to have to get a court decision with regard to means for nursing home subvention.
Reference was made to the difference in the valuation of houses. As the Minister of State knows, virtually every applicant for nursing home subvention in County Kildare would exceed the €300,000 bracket due to the valuation of houses in the county. There is no doubt the limit is not high enough or reflective in any way of the valuation in houses in the Kildare area, where the Minister of State and I are public representatives.
Cases where the residential home becomes excluded with regard to its valuation are also of deep concern. For example, a single parent residing with a father, mother or other loved one and who is taking part in a VTOS course would be excluded from the assessment of the valuation of the house. How in God's name can we make a decision that a house could be sold without reference to a single parent who is trying to better himself or herself, just because he or she is in receipt of extra payments and has gone outside the assessment valuation figure? How can we suggest that the Bill properly covers such aspects if we do not include a proper appeals mechanism to allow such cases to be determined and evaluated? That is the nature of this measure. A person on a single parent allowance is not included, which means his or her home would be excluded from the valuation.
The same could be said with regard to a carer. A person could have minded a parent for 20 years and arrived at a position where he or she could not care for the parent any longer. When the parent entered the nursing home, the son or daughter would no longer be a carer and might obtain employment. If, as a result of the employment, he or she moves outside the limits of the very tight exemptions, the family home could be sold over that person's head, despite the fact he or she had looked after the parent in that home for 20 years. The position is the same for anyone on low income and not in receipt of carer's allowance who works and then goes home and cares for a loved one. If nursing home subvention is needed, the house could be sold over that person's head.
There is no logic to trying to deal with the family home in this way. The entire Bill is frustrating and destroys the one thing we all consider most valuable, namely, the family home. As I stated previously in the House, no legislation should provide that the family home is included for assessment. It is one value we possess, the one pearl in our crown, and it should not in any way be used in the valuation mechanism.
If we do not put a proper mechanism in place, we will cause concern across the spectrum among those seeking nursing home subvention. They will not seek subvention because they will feel that the family home for which they worked so hard and which they want for themselves and their children will be sold over their heads just to get them into a nursing home. There should be no connection between the assessment of a family home and a person trying to access medical care. The family home should be excluded from any assessment in this regard.
I would like clarification from the Minister of State with regard to the assessment of the degree of dependency, a matter I fail to understand. If I were to attempt to obtain nursing home subvention for a loved one or parent, I would contact a matron, director of services or director of nursing in the nursing home to tell them I was seeking a placement. The official would tell me the cost was, say, €700, as it currently is in my area. There are three different aspects of dependency but the owner of the nursing home will not ask an applicant the category of dependency he or she has because one's level of dependency is reflected in the cost of one's care. If an applicant's nursing home subvention is €700, it will be that amount regardless of the applicant's category of dependency. Those who grant the subvention will not relate it to the applicant's level of dependency. Given the different categories of dependency identified in nursing home care and the mechanism to be put in place under this legislation, the cost of nursing home care will be greater for some families than for others for the simple reason that a resident in a nursing home can shave himself. It is unthinkable that we would deprive a person of something because he can shave himself. It is the Government and not the nursing home that is effectively saying that a person who can shave himself will have to pay more for his care. There is no logic to requiring that a person must pay more out of his own pocket for care because he can shave himself and go to the toilet without assistance. That is what this legislation is effectively saying and I do not see a way around that. I have yet to receive word from a nursing home that because an applicant, be it a parent, brother or sister, has medium dependency the cost of his or her care will be lower. That does not happen. I cannot understand the logic of categorising a person who needs nursing home care -the person would not have submitted an application in the first instance if he or she did not need care — and charging them more for such care. The cost of such care will have further financial implications for that person's family for the simple reason that person can walk to the toilet without assistance, shave himself and look after himself.
The Minister of State must put in place a mechanism to allow an applicant to appeal under the normal criteria. I have spoken here on numerous occasions on the effect of the social welfare appeals system. The inspectors there are a credit to the system. I have attended more appeals than I can almost count and on leaving them the person I accompanied has said on every occasion that the appeal was not bad, that the appeals officer did a good job and gave the person every opportunity. We are not giving the most vulnerable people in our society, namely our senior citizens who are responsible for us achieving what we have today, that opportunity in this legislation. I fully support the provision of the appeal system proposed by Deputy Twomey. This opportunity must be available to people.
The option of going to court is not a runner because in many cases they suffer from dementia or the early onset of it. Therefore, they do not know about the court system nor do they want to know about it. Even if a person's family mentions that the court option is the only way to appeal a decision to try to save the family home, the person will not want to know about it. They will want to stay at home and create further problems for those who have cared for them for so long.
I ask the Minister of State to give due consideration to this amendment. If accepted, it would allow people the due process of appeal under a properly orchestrated mechanism and allow them to make every effort to obtain what is a necessary payment, given the value of the nursing home subvention. In my area it has increased from €500 to €750 and is rising. The cost of providing nursing home care for one's loved one is outside the means of a person on an ordinary income.
In regard to the family home, I stress as I have previously, that the home is the one asset an old person has, with all that means to the person. Consideration of it should not be even included in the legislation. Notwithstanding that, I ask that due consideration be given to accepting amendment No. 3.
I thank the Members for their contributions. I will deal with the issue raised. Some people have accused me of saying things I did not say, but that is not unusual in this House.
I want to make it clear that I never indicated at any stage that this Bill would be the be-all and end-all and that it would bring about major changes. I explained at the outset that we had taken advice from the Attorney General. That advice was that the scheme had operated by way of regulation since 1993 and that it was important that it be put into primary legislation. That is exactly what we are doing. I did not indicate that we were making any major change to the scheme. A number of small changes and adjustments are being made but by and large the operation of the scheme when the legislation is enacted will be similar to the operation of it prior to its enactment. To say the introduction of this legislation will force old people to sell their houses misrepresents the situation.
The legislation is not being brought forward in lieu of the publication of the report of the interdepartmental group on long-term care. This group reported to Government, which has agreed on a number of principles. These were reflected in the agreement with the social partners, Towards 2016. Such principles include appropriate and equitable levels of co-payment by care recipients based on a national standardised financial assessment and that the level of State support for residential care should be indifferent as to whether that care is being provided in a public or private facility. The co-payment, about which Deputy Twomey asked me, has existed for a long time. If one is being cared for in a public bed and one is in receipt of a pension, a percentage of one's pension is taken as part payment for the care one receives.
I mentioned on Committee Stage the details of the scheme. I accept it is far from perfect. It was introduced by way of regulation in 1993. Like Deputy Wall, I am familiar with many applicants and families who apply for subvention and the difficulties they encounter in obtaining it. In many cases the subvention payment granted covers only a small percentage of the overall cost of care and I know the burden that places on families. It is for that reason that we set about introducing a new long-term residential scheme. We hope to do that in the near future, but in the interim we were advised to put this measure into primary legislation. That is what we are doing.
The talk of the inclusion of the family home in the legislation is a little rich. The Minister who introduced the regulations in 1993 was Deputy Howlin. The home was included at that stage and with the exception of a subsequent Minister for Health and Children, Deputy Cowen, who revoked certain aspects of that scheme, very little change has been made to it. We all appreciate that a new scheme is required and, hopefully, we will be in a position to introduce that in the near future.
None of these amendments was accepted on Committee Stage because the Bill provides for one single appeals process and it is not considered necessary to include a separate appeals provision under each section of the Bill. The appeals provision in section 7(e) provides for a most robust and transparent appeals procedures in accordance with legal advice received and in compliance with article 6 of the European Convention on Human Rights. The appeals process provides that a person can appeal any decision made by the HSE in regard to a decision on a subvention under section 7(a)(iii), 7(c)(i) and (iv) and 7(d)(ii). Under the appeals provision at section 7(e), the person appointed by the HSE to consider the appeal must comply with the HSE's guidelines in respect of procedure. I have a copy of those guidelines if Members wish to have them. I made some copies of them available yesterday. Much of the criticism thrown at the HSE in regard to appeals is unjust. The HSE has advised——
On a point of order, will the Minister of State answer the questions I raised rather than what he is doing? Perhaps he should continue to say the rest of what he said on Committee Stage, given that he has been quoting from that debate——
I was coming to that point, if the Deputy would just listen. He may have tabled the amendment but other Deputies also spoke and asked questions and it is appropriate that I reply to them as well.
The HSE has advised the Department that a new appeals process and associated guidelines will be in place within eight weeks. It is unlikely that there will be significant changes in the current appeals process on foot of this Bill. The HSE has advised that the current appeals officers will continue to consider appeals under the new system. It has advised that a single appeals process will be in place throughout the country.
I draw Deputies' attention to the fact that individuals will now have 60 days to make an appeal, as opposed to 28 days under the current system. It is considered that the provisions currently contained in the Bill provide for a fair, transparent and robust national appeals system. Therefore, it is not considered necessary to make any amendments to them.
The appeals system is similar to that which operates for social welfare claims. We are quite clear on the guidelines and thresholds. People will have a reasonable idea before they make an application as to whether it is likely to be successful. Having more than one appeals provision in the scheme would be unusual and unnecessary. I am not in a position, therefore, to accept the proposed amendments.
The Minister of State said the system is similar to that which operates in the Department of Social and Family Affairs. However, as I understand it, the appeals system provided for under this legislation is a written system. The appeals system in the Department of Social and Family Affairs involves an oral hearing where an appellant appears before an inspector, who is totally independent of the Department. Therefore, it is incorrect to say the appeals systems are similar. Under the system operated by the Department of Social and Family Affairs an appellant can bring a public representative, solicitor or family member to the hearing, sit down with the inspector and tease out the problems. I have always praised the appeals system for social welfare claimants precisely because it allows people to tease out problems. My understanding of the legislation before us is that the appeals process is a written system that is not in any way comparable to the social welfare appeals system.
Forcing elderly people to sell their homes to pay for health care is an incredible policy decision for a Fianna Fáil Minister to make. This issue was not discussed in the Dáil. I do not know which of the social partners allowed this decision to go through and the Minister of State has not told us what social partners agree with him on this issue. This is not about regulations. The Minister of State referred to Deputy Howlin introducing regulations but those regulations were very much implemented at the discretion of the chief executive officers of the health boards at that time. The health boards had an enormous amount of latitude. As a Government Minister pushing through legislation, Deputy Seán Power should know that what he is doing here is framing the law. It is not just some regulation or something that can be changed again on a whim. This is legislation and if the Minister of State cannot understand the difference between legislation and regulations, he should not be in the position he occupies.
The Minister for Health and Children, Deputy Harney, has been promising people that they will not have to sell their homes but by next May she may not even be in Dáil Éireann. She certainly will not be in Government. We will be left with blankety blank Fianna Fáil people or maybe an Opposition that cares about what happens to elderly people.
Right now the Minister of State is not giving any protection to elderly patients, who will be forced to sell their homes. He has not answered the fundamental question. It is not a matter of €300,000 or €500,000 for a home in Dublin; it concerns any home. It is 5% of any house of an elderly person living alone. If the Minister of State examines the criteria concerning means, which he surely has done, he knows it will not take a very expensive home before people begin to come under pressure. I estimate that at anything over €100,000 people will be forced to sell their homes. When they run out of funds they will then have to apply to the HSE for subvention.
The Minister of State is telling me to rely on the HSE. Any company that is properly run writes and publishes a corporate governance policy. Can the Minister of State tell me when the HSE's corporate governance policy was published? The HSE has been in operation since 1 January 2005. I ask the Minister of State, who oversees the HSE, to tell us when that policy was written. Then he can tell us to trust that the HSE will bring forward guidelines in six weeks.
The Minister of State is being disingenuous and is trying to throw out untruths about the Opposition. He knows as well as I do that what he is doing with this legislation is going after the homes of old people. He is trying to slip out of it but has been caught out. He tried to slip out of it on Second Stage and on Committee Stage but he got caught out. He is trying to slip out of it again in the House today but we will call votes all morning to see if Fianna Fáil backbenchers will learn to understand.
I echo the points other Deputies have made with regard to the family home. I will not repeat them because they have been well made. The Minister of State has not responded to the salient points I made in my earlier contribution regarding the deficiencies in the provision in section 7E on page 12 of the Bill as presented at this stage. This is important because the Minister of State has drawn comparisons with the Department of Social and Family Affairs. The appeals office for social welfare claims is independent of the Department but what the Minister of State is proposing here is different. One must look at the formulation of words. The Bill states that "Where the Executive receives an appeal" — which is almost suggested as an improbability — "under subsection (1), it shall appoint a person (who may be an employee of the Executive) to consider the appeal."
Deputy Twomey's proposed amendment states very clearly that the appeals officer, as opposed to a person appointed to examine an appeal when it presents, is designated by the Minister and not by the HSE. Where do we ever draw the line on the police policing themselves? Here we have the HSE acting as it may in terms of appointing an employee of the executive to consider an appeal. It should be at some remove from that. Amendment No. 3 clearly states "designated by the Minister" and not by the HSE. This is another very important point in ensuring public confidence. That is what is required and it is absolutely necessary. I understand that is the way the social welfare appeals system operates. Let us recognise the deficiencies and not try to defend the indefensible. The Minister of State has acknowledged that this Bill is not the be-all and end-all and quite clearly, that is the case. Let us at least ensure that key and critical elements of this legislation meet the requirement of providing a sounder basis than that which has previously applied.
The appeal system is quite similar to the system operating in the Department of Social and Family Affairs. In this case we appreciate that in many cases, the people on behalf of whom subventions are being made might not necessarily be in a position to make the application themselves. For that reason we have the facility where family members or friends can make an application on their behalf.
I will make a couple of points about the scheme. The first relates to people dealing with the appeal having to comply with guidelines issued by the HSE in respect of procedures to be followed relating to the consideration of any appeal. I have stated that the HSE has advised that the new appeals process and associated guidelines will be in place eight weeks from now, not six weeks. An appeals officer would have to consider any written or oral objections made by the appellant in support of the appeal.
We are not trying to encourage people down the legal route, but we must make that available to them or their families in the event they are not happy with the existing appeals system.
I have been honoured to be elected to occupy a seat in this House since 1989. I have sat on both sides of the House, and I have felt privileged to have the opportunity. If I am fortunate enough to be re-elected after the next election, I will not be changing my jersey, whatever about my seat.
Members have mentioned the selling of homes. By bringing in this legislation we are not forcing anybody to sell their home. There was a comment earlier about Age Action Ireland. That group has acknowledged on its website that my colleague the Minister, Deputy Harney, has stated that individuals would not have to sell their homes to fund nursing home care. That still remains the case.
——that we are not forcing anybody to sell their homes. By introducing this, we will bring into primary legislation something which has existed by way of regulation. It was introduced by the Deputy's colleague, Deputy Howlin, when he was Minister for Health.
I will not delay the House too long. I wish to contribute in particular to the question of the family home. We should remember who we are dealing with on the issue of subvention for nursing homes. We are dealing with elderly people who over the past 20 to 60 years have contributed to what we now enjoy. They have contributed to the building of the Celtic tiger, and in their old age are entitled to a fair crack of the whip.
In very many cases these people are medical card holders who are effectively being forced from our hospitals into private nursing homes because there are not enough public beds in our system. The vast majority of people in private nursing homes are not there by choice. They would rather either to remain at home or go to a public facility. The fact remains that these people, in very many cases medical card holders, are deprived of the opportunity either to remain in their own homes or avail of publicly-funded facilities because there are not enough beds available.
We are also considering the most vulnerable people at a vulnerable and pressurised stage in their lives. It is a time when their families are under severe pressure of all kinds. I deal with people on a daily basis, as I am sure every other Deputy does, where relatives inform us they have to take their relative, mother or father out of the local hospital and there is no bed available in the geriatric facility. These people are faced with paying huge sums in private nursing homes. The vulnerable people are not just the individuals themselves, but their families.
The family should be completely excluded from this legislation. There are clear precedents. The whole social welfare system excludes the family home on any assessment of financial needs. The medical card system itself excludes the family home from any financial assessment. It is only right, just, fair and decent that the family home be excluded from the subvention issue.
What is contained in this Bill worsens the issue in regard to the family home. Currently, the Health Service Executive has discretion to exclude the family home. To be fair, it does so in many cases, having regard to the circumstances. If this legislation is passed in the current form, it will exclude this discretion.
As Deputy Twomey has stated, we would then be dealing with legislation which must be implemented. Officials from the Health Service Executive will have no discretion whatever in excluding the family home. Those circumstances will mean family homes will have to be sold, as there will be no discretion. In numerous cases the homes will have to be sold to fund elderly people in nursing homes.
With regard to the exclusions, I am currently dealing with a case where a son over the age of 21 is living in a family home. This man is in a low-paid job and is barely getting the minimum wage. He will be excluded under these regulations, and he will effectively have to pay, despite being on a very low income and living in the family home where he was born and raised. There is also the situation raised by Deputy Wall, which involves a single parent, a carer, or somebody on a community employment scheme being excluded under the details of this Bill.
In very many cases, the family home may have fallen into disrepair over a long number of years. In some cases, to get over the problem of a family home being vacant, the owner — the elderly person — may be in a position to rent it. In many cases, homes that have a significant value because of location or size, for example, may be in a state of disrepair and so cannot be rented. Currently, Health Service Executive officials have discretion to exclude the family home, but that will not be the case if this Bill goes through in its current form. I appeal to the Minister of State to exclude the family home from the legislation and, accordingly, to accept Deputy McManus's amendment No. 6. It is most unjust to elderly people, who built up this country over the years and of whom many are medical card holders forced into private nursing homes because of the lack of public facilities.
Again, the Minister of State will not answer my questions. He will not answer the question I asked him about the corporate governance of the HSE. He will not tell us whether we are right or wrong that the legislation refers to a house of any value, so obviously he accepts we are right.
Given that the Minister of State and the Minister, Deputy Harney, have been in the Department of Health and Children since June 2005, has he read the Leas Cross report? He takes the attitude of "See no evil, hear no evil" and believes if he plays dumb he will get away with it.
The Minister of State does not know what he is doing. He has not read his own legislation. I have pored over the legislation to check whether I have been wrong but all the Minister of State does in response is issue press releases. He did not respond to my questions on Second Stage, on Committee Stage or in the House today. He will issue a press release at approximately 3.30 p.m. today, hoping that will be the only response necessary to the difficult questions being asked of him in the House. He has done that since last May.
We have pored over this legislation and make the assumption that an elderly person, living alone or with somebody over 21 who has any significant income, will lose his or her house whatever the value. The Minister of State has not challenged that assumption at all during the course of this debate. He bluffs us with regulations and tells us to trust the HSE. It is a disgraceful way for a Minister of State to conduct himself when pushing legislation through the House.
I understand why the Tánaiste this morning spoke about legislation passing through this House. The Government has probably the worst record in recent years for having legislation thrown out by the Supreme Court. Now we are dealing with legislation that the Minister of State cannot fully explain to the Opposition.
The Dail Divided:
For the motion: 50 (Dan Boyle, James Breen, Tommy Broughan, Richard Bruton, Joan Burton, Paul Connaughton, Paudge Connolly, Simon Coveney, Seymour Crawford, Seán Crowe, Ciarán Cuffe, Jimmy Deenihan, Bernard Durkan, Damien English, Olwyn Enright, Martin Ferris, Paul Gogarty, John Gormley, Tom Hayes, Séamus Healy, Michael D Higgins, Phil Hogan, Brendan Howlin, Paul Kehoe, Pádraic McCormack, Shane McEntee, Dinny McGinley, Finian McGrath, Paul McGrath, Paddy McHugh, Liz McManus, Gay Mitchell, Catherine Murphy, Denis Naughten, Dan Neville, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Fergus O'Dowd, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, Ruairi Quinn, Pat Rabbitte, Eamon Ryan, Joe Sherlock, Emmet Stagg, David Stanton, Liam Twomey, Mary Upton, Jack Wall)
Against the motion: 57 (Dermot Ahern, Noel Ahern, Barry Andrews, Seán Ardagh, Niall Blaney, Johnny Brady, Martin Brady, Séamus Brennan, John Browne, Joe Callanan, Pat Carey, John Carty, Michael J Collins, John Cregan, John Curran, Noel Davern, Síle de Valera, Jimmy Devins, John Ellis, Frank Fahey, Dermot Fitzpatrick, Seán Fleming, Pat Gallagher, Jim Glennon, Noel Grealish, Seán Haughey, Máire Hoctor, Joe Jacob, Cecilia Keaveney, Billy Kelleher, Séamus Kirk, Tom Kitt, Conor Lenihan, John Moloney, Michael Moynihan, M J Nolan, Éamon Ó Cuív, Seán Ó Fearghaíl, Charlie O'Connor, Liz O'Donnell, John O'Donoghue, Denis O'Donovan, Noel O'Flynn, Batt O'Keeffe, Fiona O'Malley, Tom Parlon, Peter Power, Seán Power, Dick Roche, Mae Sexton, Brendan Smith, Dan Wallace, Mary Wallace, Joe Walsh, Ollie Wilkinson, Michael Woods, G V Wright)
Tellers: Tá, Deputies Kehoe and Stagg; Níl, Deputies Kitt and Kelleher.
Amendment declared lost.
I wish to comment. My amendment addresses a fundamental issue in the Bill. It is irrational that, on the one hand, my amendment which sought to exclude the principal residence from an assessment is disallowed, while, on the other, several amendments which have a financial impact are not excluded. All the Deputies who spoke in this debate raised this fundamental issue, yet we are not allowed to discuss an amendment which has been included in the list because it is such an important issue. It is incongruous not to debate the most important issue at the heart of this Bill on foot of an amendment while other surrounding issues are discussed.
Yes. I move amendment No. 7:
In page 9, between lines 1 and 2, to insert the following:
"(8) (a) A person whose degree of dependency or means are assessed by a person, or a person acting on behalf of that dependent person, may appeal, to an appeals officer designated by the Minister on the grounds that he or she is not satisfied that his or her means and circumstances were adequately, properly or correctly assessed.
(b) The designated appeals officer shall consider an appeal under paragraph (a) and shall inform the person making the appeal of his or her decision within 28 days of the receipt of the appeal.
(c) For the purpose of deciding the appeal, the designated appeals officer may request information from the Executive and from the person to whom the appeal refers or a person acting on his or her behalf.
(d) A decision of an appeals officer shall be final and conclusive.
(e) Where a report is produced as to the means or degree of dependency of a person, and such report is provided to the Executive, the Executive shall inform the applicant of his or her right to appeal the contents of that report under this subsection.".
The Dail Divided:
For the motion: 54 (Dan Boyle, James Breen, Tommy Broughan, Richard Bruton, Joan Burton, Paul Connaughton, Paudge Connolly, Simon Coveney, Seymour Crawford, Seán Crowe, Ciarán Cuffe, Jimmy Deenihan, Bernard Durkan, Damien English, Olwyn Enright, Martin Ferris, Paul Gogarty, John Gormley, Tony Gregory, Marian Harkin, Tom Hayes, Séamus Healy, Michael D Higgins, Phil Hogan, Brendan Howlin, Paul Kehoe, Pádraic McCormack, Shane McEntee, Dinny McGinley, Finian McGrath, Paul McGrath, Paddy McHugh, Liz McManus, Gay Mitchell, Catherine Murphy, Denis Naughten, Dan Neville, Caoimhghín Ó Caoláin, Aengus Ó Snodaigh, Fergus O'Dowd, Brian O'Shea, Jan O'Sullivan, Séamus Pattison, John Perry, Ruairi Quinn, Pat Rabbitte, Eamon Ryan, Seán Ryan, Joe Sherlock, Emmet Stagg, David Stanton, Liam Twomey, Mary Upton, Jack Wall)
Against the motion: 60 (Dermot Ahern, Noel Ahern, Barry Andrews, Seán Ardagh, Niall Blaney, Johnny Brady, Martin Brady, Séamus Brennan, John Browne, Joe Callanan, Pat Carey, John Carty, Michael J Collins, John Cregan, Martin Cullen, John Curran, Noel Davern, Síle de Valera, Tony Dempsey, Jimmy Devins, John Ellis, Frank Fahey, Dermot Fitzpatrick, Seán Fleming, Pat Gallagher, Jim Glennon, Noel Grealish, Seán Haughey, Máire Hoctor, Joe Jacob, Cecilia Keaveney, Billy Kelleher, Séamus Kirk, Tom Kitt, Conor Lenihan, Michael McDowell, John Moloney, Michael Moynihan, M J Nolan, Éamon Ó Cuív, Seán Ó Fearghaíl, Charlie O'Connor, Liz O'Donnell, John O'Donoghue, Denis O'Donovan, Noel O'Flynn, Batt O'Keeffe, Fiona O'Malley, Tom Parlon, Peter Power, Seán Power, Dick Roche, Mae Sexton, Brendan Smith, Dan Wallace, Mary Wallace, Joe Walsh, Ollie Wilkinson, Michael Woods, G V Wright)
Tellers: Tá, Deputies Kehoe and Stagg; Níl, Deputies Kitt and Kelleher.
Amendment declared lost.
I move amendment No. 8:
In page 10, line 7, after "the" to insert "Greater".
This amendment seeks to include reference to the "greater Dublin area" as opposed to the "Dublin area". Section 7C (4)(b)(i) specifies a distinction between two specific groups of people, those who live within the "Dublin area", for whom a cut-off limit of €500,000 on the value of the family home applies, and those who live outside the "Dublin area", for whom a limit of €300,000 applies. I asked the Minister of State about this on Committee Stage and he told me that the term "Dublin area" is used by the Department of the Environment, Heritage and Local Government in reference to house prices.
If such a major distinction is to be made between the Dublin area and the rest of the country, we need something more accurate than this. This uncertainty will give rise to situations where houses on one side of the street in a borderline area are eligible for the higher threshold while those on the other side fall into the lower threshold category. Some towns that have a case for inclusion will be excluded from the higher limit. During the debate on this issue on Committee Stage, Deputy McManus asked whether Wicklow or Dun Laoghaire-Rathdown, for example, are included. Does it encompass the commuter zone of the greater Dublin area, which includes counties Kildare, Meath and Wicklow, as well as parts of Carlow, Wexford and Louth?
We must have clarity on this point before the legislation is enacted and implemented. I am aware there are no regulations from the HSE in this regard and that the Minister of State is not sure whether the homes of elderly people will be taken from them. There must be certainty as to the precise scope of the area to which the higher threshold applies.
The Acting Chairman, Deputy Glennon, has indicated to the Minister of State but he will find there are other Members who wish to speak on this amendment. I understand the Acting Chairman is now more relaxed and I wish him well in the future.
This is an important issue that must be addressed if there is to be any justice in terms of assessing the income of elderly people. The Bill provides for a differentiation in terms of the valuations of family homes. A house that is worth less than €500,000 in the Dublin area will be excluded from assessment whereas the threshold is €300,000 for houses elsewhere. I do not know on what planet the Minister of State lives although I am told his home address is in County Kildare. He knows as well as anyone else that houses in counties Kildare, Wicklow and Meath, particularly in the areas close to Dublin, are reaching the same prices as those in parts of Dublin. Likewise, Galway city has had a track record for decades of high house prices. Kilkenny city is probably the same. Under the provision of this Bill, however, the lower threshold will apply to cities such as Galway.
This is unacceptable. As a representative of County Wicklow, I resent the notion that home owners in Dublin will have preferential treatment relative to those in a county that is under similar housing pressures. One of the solutions is simply to ensure parity across the board, which is what I propose in amendments Nos. 9 and 10. This is not, however, the ideal solution. My party sought to have the family home excluded and these amendments, therefore, represent second best. However, they at least give some recognition to the fact that high house prices are not a Dublin-only phenomenon. This type of Dublin-centred view contained in the Bill is unacceptable.
There is another issue in regard to the way valuation of the family home is being used as a yardstick in terms of assessment of income. When I first considered the Bill, I thought that if one's house was valued at over €500,000, 5% of the excess would be assessed as income. However, on Committee Stage, the Minister clarified matters and said that the entire valuation would be subject to the 5% levy, which is really quite daft. If the valuation of a house is €500,000 or under, it does not enter the equation, but if it is €510,000, the entire value of the property is taxed, and that makes no sense whatsoever. The margin is slight, and yet the effect is extremely significant.
If the valuation were only from €500,000 upwards and only that element of the house's value were taxed, that might be fairer. However, at the moment there is an arbitrary cut-off point. It is so arbitrary that, if one does not have a Dublin address, one loses out. It used to be that Dublin 4 was a desirable address, but now it will be a Dublin address, full stop. If one happens to have a house valued at €10,000 more than that of one's neighbour, one may find that one's income is assessed in a completely different manner from that of someone with a house worth €500,000 or under.
Only yesterday a woman contacted me who had been trying to find a house for €300,000 in north Wicklow but given up in desperation. This is to be fixed in legislation, but where is the index-linking? Perhaps the Minister might clarify if it is index-linked and recognises the fact that house prices are rising inexorably and that people are having ever more difficulty keeping up. This matter has not been thought out at all. It is arbitrary and theoretical, as if we were not dealing with human beings but merely with keeping costs down. It does not recognise the reality of people's lives.
What is the point of establishing an interdepartmental group to examine the entire issue of funding for elderly care without ensuring that the report is published and debated in full, with consultation on its findings before decisions are taken? That does not seem to make any sense whatsoever, and it is yet another example of muddled thinking on the part of a Government that has given up making commitments to caring for the elderly in a humane manner appropriate to our status as a rich country that can afford to provide decent, high-quality care, something of which there is currently no guarantee.
There is too much emphasis on the private sector, but at the same time as the Minister for Health and Children, Deputy Harney, is driving her ideological carriage through the health service, she fails to provide the proper statutory framework for the inspection and regulation of nursing homes. It is not as if most things were right in the sector, and the Government does not have a good track record. Now it has produced a Bill that is not fair and will not deal with elderly people in an appropriate fashion. We are expected to stay quiet, and I ask that the Minister consider what has been said to him, even at this late stage.
I wish to support amendments Nos. 9 and 10 in the name of Deputy McManus in preference to No. 8 in that of Deputy Twomey. I absolutely agree with the view that there can be no demarcation regarding property values. The reality throughout the jurisdiction is very different from that suggested, either in the legislation as presented or in amendments Nos. 8 and 11, if taken on board. We should insert "or elsewhere in the State", since property values can be quite particular to many areas throughout the jurisdiction. Recent years have seen the greater Dublin area expand into the south east and south of Cavan and Monaghan respectively. If the Ceann Comhairle were here, he could confirm that, being a commuter himself.
The property issue is not as straitjacketed as the legislation or certain amendments might suggest. The deletion of (b)(ii) is required to give effect to the inclusive designated demarcation line for property values. Those high prices are a consequence, I remind the Minister, of Government policy over the past nine years in particular, which has put property beyond the reach of many young couples. This is not merely a Dublin phenomenon but one seen throughout the State.
I record my support for amendments Nos. 9 and 10 for those reasons.
I support the amendment as far as it goes, but I would also like to say something further. I live in a second-hand council house in Straffan, County Kildare, outside the Dublin area, which is valued at approximately €400,000. If any of my neighbours had to go to St. Vincent's in Athy, or the excellent State facility in Maynooth, they would have to sell their house to pay for it. Such is the effect of this measure. I want the Minister, who is from Kildare, to explain to me how a line was drawn around Dublin with a €500,000 limit. If he goes to Leixlip, a place with which he is very familiar, for those on one side of the bridge, the limit is €500,000 but for those on the other side €300,000. The penalty is quite extraordinary in that regard.
It is also extraordinary that this is the only example that I can find in legislation where a means test takes into account the value of the family home. The most stringent means test that one can have applied is that of a community welfare officer, and he does not take any account of the value of one's house. The house can be worth €2 million, €3 million or €200 million, and if one has no other income, the community welfare officer will assist one. He will not ask one to sell one's house to feed oneself. Essentially, this measure states that people in modest homes will have to sell their houses, because they are sick and old and unable to stay at home, to get into a nursing home or State long-stay facility.
Universalism in many areas takes no regard of the value of homes. In education, the sons of the wealthy can have free first, second and third level education without anyone saying that their houses should be sold to pay for their schooling. The same is true in health, since up to the age of 65 there is no extra charge for Tony O'Reilly, a neighbour of mine in Kildare. If he falls ill, he goes into hospital and pays a minimal charge the same as everyone else. Why, when people are old and unwell, at their most vulnerable, are they expected to sell their house to pay the State for care? We do that to no one except old people who are ill, which is the only reason they are in nursing homes.
Nonsense has been spoken about whether someone's house is worth, €1 million, €2 million, €5 million or €200 million. The vast majority of people are not in that category but will be caught in the trap set by a Minister from County Kildare, who should know the price of houses there. I am sure that he does, although I do not claim that the provision was his creature in the first instance.
We will certainly vote against this Bill and in favour of the amendment before us, which goes some of the way towards what we would like to see. I ask the Minister to reconsider the effect that this crazy measure will have on his own constituents in County Kildare, if on no one else.