Note: The names of the complainant and his mother have been changed to protect their identities, The names of the nursing homes referred to in the Report are fictitious.
1.1 - Nursing Home Care in Ireland - Public and Private
In Ireland, public long term residential care for the elderly is provided in either publicly owned and financed institutions or in contracted beds in private nursing homes. Private long term care is provided in private and voluntary nursing homes. During the period 1976-2004, most patients in public nursing homes were required to pay charges for their care at a rate calculated in accordance with and related to their income. They were allowed retain an amount of their income for their personal needs. (It subsequently emerged that there was no legal basis for those charges and many residents or their heirs became entitled to a refund of nursing home charges under the Health Repayment Scheme Act 2006.
At the time in respect of which this complaint relates, fees in private institutions were charged at commercial rates and were payable directly by residents. Financial support in the form of basic and/or enhanced nursing home subventions was sometimes available from the State for the provision of private care.
A nursing home subvention is a payment made by the HSE to people who:
- go into registered private nursing homes;
- are in need of full time care and attention; and
- pass a means test.
An enhanced subvention is an extra payment which may be granted at the discretion of the HSE, if an applicant’s means and basic subvention are insufficient to meet the cost of nursing home care.
1.2 - The initial complaint
In February 2004, Mr Thomas Kennedy wrote to me, on behalf of his mother, who was resident in Highfield Nursing Home, Co. Galway. He said that he wished to make a complaint against the then Western Health Board (WHB) {now Health Service Executive (West)}, which had rejected his appeal for an enhanced nursing home subvention he had sought on behalf of his mother, to assist with the payment of her private nursing home fees.
In his letter of complaint, Mr Kennedy explained that his mother had been in private nursing home care for most of the previous 20 years. Two years earlier, in December 2002, the nursing home where his mother had been residing, St Margaret's Nursing Home, Galway closed down. When this occurred, she was referred by her GP to the Accident and Emergency Department in University College Hospital Galway. After a short stay in the hospital she was re-located to Highfield Nursing Home. Mr Kennedy said that he had been advised by the WHB at the time that his mother would have her nursing home fees at Highfield paid for in full by the Board, but that this did not happen. He said that there was a debt due to the private nursing home in excess of €15,000 and that the matter was causing him serious hardship. He said that she had now been put on the list for public long term care, but she was still waiting for a bed.
1.3 - The response from the Western Health Board
Responding to the initial complaint, the WHB sent me its file dealing with the case. It said that while it had been agreed that the nursing home fees would be paid for by the WHB from 20 December 2002 to 31 December 2002, no undertaking had been given that the further nursing home costs would be met by the Board. With regard to the application for the enhanced subvention, it advised that this had been rejected, as Mrs Kennedy was the owner of a dwelling house. It said that such assets were taken into account in assessing the means of applicants and, as a result, she was precluded from receiving an enhanced subvention. The WHB advised that Mrs Kennedy had been admitted to public long stay care in Merlin Park Hospital on 14 April 2004.
1.4 - The application for a public nursing home bed
Mr Kennedy told me that he was happy that his mother had been taken into long term care, but that he was still very concerned about the payment of the outstanding debt due to the private nursing home. In this connection, he also mentioned that an application for a public bed had actually been made for her, eight years earlier, in 1996.
When I examined the Board's file, I noticed a reference to an application for a public bed having been made on Mrs Kennedy's behalf, by her GP , in or around 1995. In a letter on the file to his local representative, date-stamped 23 February 1996, Mr Kennedy had written that his GP had applied for long term care for his mother and that following this application he himself had enquired about this possibility on several occasions and had been told that his mother was on a waiting list.
In October 2004 Mr Kennedy rang my Office to say that his mother had died. I advised him that I proposed to continue with my examination of his complaint.
From my analysis of the papers on the Board's file, it seemed to me that the Board's assessment for the enhanced subvention was generally in order, apart from one or two errors which appeared to have been made. The effect of these errors was to reduce the level of basic subvention payable in this case. I decided to write to the Board about these matters.
In my letter, I raised the issue of the public bed application and asked the Board to clarify its position about this. I said that I had noted from the file that the question of a public bed for Mrs Kennedy had been referred to in February 1996 through the local representative, but that over eight years had elapsed before Mrs Kennedy was finally admitted to public care. I asked the Board to explain why it had taken eight years to provide her with a public bed.
In its response, the Board acknowledged that a mistake had been made in the calculation of the standard subvention paid to Mrs Kennedy and that a refund would be made. It also acknowledged that an application for long stay care had been made by Ms Marie Regan, the Liaison Public Health Nurse on behalf of Mrs Kennedy on 23 June 1995 to the Director of Nursing, St Brendan's Hospital, Loughrea. However it added that, having checked with the Hospital, there were no other records relating to the application.
1.5 - My Concern
My concern at this stage was that if the application for a long stay care bed had been processed at the time it was received in 1995, it could have resulted in Mrs Kennedy being allocated a public bed. As a consequence of the failure to deal with the application at the time, the Kennedy family had run up significant debts and suffered serious hardship paying the additional costs for their mother's private nursing home care (in St Margaret's Nursing Home from 1995 to 2002 and Highfield Nursing Home from 2002 to 2004). Furthermore, if Mrs Kennedy had been in public nursing home care during these periods, she would, as a medical card holder, have been entitled to a refund of public long-stay charges levied on residents of public nursing homes in Ireland during the period 1976-2004. These residents were required to pay charges when there was no legal basis for those charges.
The HSE acknowledged that an approach had been made by the Liaison Public Health Nurse, on behalf of Mrs Kennedy, on 23 June 1995, to the Director of Nursing, in a public care facility about a public bed. In this context, I asked the HSE to advise me as to when the next application for long-stay care in that public care facility was made after that date, and how long that applicant was waiting before a bed was awarded.
The HSE said that there was record of an application form having been received in the public care facility on 26 June for a patient who was admitted on 17 July 1995. It added that while there were no formal records available, the practice at the time was that when a bed became available, the then Nurse in charge would have made contact with the applicant next on the list or their next of kin.
I suggested to the HSE that it seemed that, from the evidence available, the hardship experienced and the debts incurred by the family of Mrs Kennedy, arose out of the delay in the processing of the application for a public bed. The HSE acknowledged that a debt had been incurred by Mr Kennedy, but that it was not in a position to make a refund to him.
1.6 - Redress
In 2000 my Office published guidelines for the provision of redress (see Appendix 1) when public bodies make mistakes in their dealings with members of the public. The guidelines stated that
"Members of the public are entitled to proper, fair, impartial and expeditious treatment by public bodies. Where there is a shortfall in these standards, and the fault lies with the public body, it should remedy the shortfall through the provision of redress. The general rule of thumb should be to put the person back into the position he/she would have been in if the public body had acted properly. "
The HSE, in its published Complaints Management Policy (see Appendix 2), underlined its stance in respect of the provision of redress as follows:
"The HSE is committed to considering fair and balanced redress for unfair or wrong decisions or actions taken, where it is established that a measurable loss, detriment or disadvantage was suffered or sustained by the claimant personally."
On the basis of the evidence available to me arising from the examination of the complaint, and the commitments it has given in respect of the provision of redress, I advised the HSE that in my view it should consider remedying the adverse affect which had occurred. I added that this should be done by way of a financial payment to Mr Kennedy to cover the hardship suffered and debts incurred by him in paying the fees to St Margaret's Nursing Home and Highfield Nursing Home from July 1995, when the application for a public bed was first made, until the date of his mother's death in October 2004.
In its response the HSE said that, having again examined the files, it concurred that Mr Kennedy was entitled to redress based on the expenditure incurred on the cost of private care (see Appendix 3*). The HSE indicated that it would proceed to arrange to have the total refund applicable calculated and keep me informed of developments.
* Appendix 3 indicates incorrectly that Mrs Kennedy was admitted to long stay on 14 April 2006. She was actually admitted on 14 April 2004.
Some months passed, but no information was provided to me about the payment. In April 2007, I was advised by the HSE that Mr J J O'Kane, Manager of Older People Services had met with Mr Kennedy in relation to the refund due to him. The HSE said that as the two nursing homes involved had since closed down, there had been delays in calculating the total refund due.
In June 2007, Mr Kennedy rang my Office. He said that he had recent contact with the officer processing the payment and that a figure of €25,000 had been assessed in respect of his mother's care in one of the nursing homes. In July 2007, Mr Kennedy again contacted my Office to say that he had been advised by Mr O'Kane that the arrears had been calculated, but that the HSE's legal advisors had instructed that payment should not be made, as it would set a precedent. In August 2007, the HSE West confirmed that it would not be proceeding with the proposed payment (see Appendix 4).
1.7 - HSE Consumer Affairs Division
Following further contacts with the HSE West, I decided to refer the matter to the HSE National Director of Consumer Affairs, Ms Mary Culliton. In a letter dated 3 October 2007, my Office advised Ms Culliton that after a series of protracted communications with the HSE West, extending over a period of three and a half years, I was extremely disappointed with the HSE West's decision in this case, particularly given the manner in which it handled Mrs Kennedy's application for publicly-funded care. I again pointed out that this had resulted in Mrs Kennedy's son incurring significant debts in paying fees to St Margaret's Nursing Home and Highfield Nursing Home from July 1995. I said that before I would decide on whether to proceed with an investigation of the complaint, in accordance with Section 4(2) of the Ombudsman Act, 1980, I had chosen to refer the case to the Consumer Affairs Office, to enable the National Director to undertake a review of the actual handling of this complaint and the decision not to proceed to refund the costs incurred by Mr Kennedy. I asked Ms Culliton to let me have the results of the outcome of her review before the end of October 2007.
Following extended correspondence on the matter, my Office finally received a response in May 2008. The response indicated that the HSE West was prepared to offer an ex-gratia payment of €15,000 on a 'without prejudice' basis to Mr Kennedy (see Appendix 5).My staff contacted Mr Kennedy about the HSE's offer. He was unhappy with the offer as he said that he had paid €13,000 alone in respect of the two years his mother spent in Highfield Nursing Home and that the previous amount mentioned by the HSE in their contacts with him, ie €25,000, was only in respect of the time she spent in St Margaret's Nursing Home. He mentioned that if his mother had been given a public bed, she would have also been entitled to a refund of nursing home charges under the Health Repayment Scheme. (Under this scheme people who had, or were eligible for, a medical card, but who paid public long-stay charges up until 9 December 2004, received refunds of the charges made. In responding to the draft investigation report the HSE West advised me that a payment of €3,675.73 under the Health Repayment Scheme had been made to Mr Kennedy. This payment covered the period during which Mrs Kennedy was in public long stay care in Merlin Park Hospital during the period June 2004 to September 2004.
My staff responded to the HSE West, in July 2008, stating that, having further reviewed all of the evidence available in this case, including the reports submitted by the HSE, it was considered that Mrs Kennedy's 1995 application for a private bed was not processed in accordance with the procedures in place at the time and in a timely manner. This resulted in a situation where she had to avail of private nursing home care for over eight years before she was eventually awarded a public bed. In addition, the HSE, by virtue of its contact with Mr Kennedy to establish how much had been paid in respect of his mother's care, had created an expectation that the indicative level of redress in this instance would be in the region of €25,000. The HSE was asked for its further observations on the matter.
In its reply received in August 2008, the HSE West indicated that it proposed to withdraw the offer of €15,000 made to the complainant (see Appendix 6). In light of the response received, I decided to commence an investigation of this complaint under Section 4 of the Ombudsman Act 1980.