Published December 2010
An investigation by the Ombudsman under Section 4(2) of the Ombudsman Act 1980
The subject matter of this Investigation Report concerns the difficulties experienced by three families in meeting the cost of the private nursing home care of an elderly parent. The focus in the report is the nursing home subventionscheme (see Note 1 below) under which people, who became residents inregistered private nursing homes, could get financial assistance towards thecost of nursing home fees from the Health Service Executive (HSE). Such payments were made in accordance with governing legislation (See Appendix 1),where the resident was deemed to need full time care and attention and were subject to applicants satisfying a means test. The means test took an applicant's income and assets, including, potentially, an applicant's home into account. It is the latter potential inclusion of the family home that is critical to these three cases.
Details of the cases are as follows:
1.1 Mr F
Mr F's mother, Mrs F, became a resident in a private nursing home in late 2004. In the five year period up to 2004, Mr F, his wife and his children, had cared for his mother in the family home. The family home is a small mid-terraced, former local authority house. Up to 2004, Mr F lived there with his wife, three children and his mother.
The house is jointly owned by Mr F, his mother and his wife. It had been adapted to cater for Mrs F’s increasing care needs and members of Mr F's family as they grew up. Mortgages were taken out to pay for the cost of the renovations which included converting a room downstairs for Mrs F and an additional bedroom upstairs (attic conversion) for one of the sons.
Mrs F is a medical card holder and when it became necessary to seek nursing home care she was placed on the waiting list for public nursing home, on the advice of a social worker, in St James's Hospital. In late 2004, because of her increasing care needs, the family was finding it more and more difficult to provide suitable care for Mrs F in the family setting. It was therefore decided, while waiting on a public bed in the public nursing home to become available, to seek private nursing home care.
Mrs F became a resident in a private nursing home outside Dublin. She remained there from August 2004 until 31 July 2006. She then transferred to another private nursing home in Dublin and stayed there until November 2007,when a public bed became available in the public nursing home.
Following the commencement of her stay in the private nursing home outside Dublin, Mrs F applied for a HSE nursing home subvention. The application was considered under the Nursing Home (Subvention) Regulations, 1993 (Appendix 1). In assessing Mrs F's entitlement for subvention, the HSE took into account her state pension and an imputed income, derived from her one-third ownership of the family home. As a consequence, the amount payable in subvention was reduced, resulting in financial hardship on the family in meeting the cost of the private nursing home fees.
Mr F and his family were paying the balance of the private nursing home fees after his mother's pension and subvention had been deducted and he was finding it extremely difficult to maintain these payments, which amounted to over €200 per week. At the time, existing loans on the house amounted to €48,000 and were being repaid by Mr F. The only way in which Mrs F could 'realise' her asset would have been through selling her share of the house - Mr F's family home. This in turn could only logically have been achieved by the purchase of her share in the house by her son and his wife. To purchase her share in the house, they would have had to seek additional loan funding, which would have increased the family's level of debt and exacerbated the family's already straitened circumstances.
Undert he Subvention Regulations 1993 - 2006, the health board/HSE had discretion to consider any asset of the person, in respect of whom a subvention was being sought, as a source of funding for nursing home care. In this context, the board/HSE could, if it so wished, impute an annual income equivalent to 5% of the market value of the applicant's principal residence. Given the severe impact the existing arrangements had on the family's domestic financial circumstances, and the fact that the HSE had discretion in the matter, the HSE was asked by my Office to review its decision to impute an income to Mrs F, based on her one-third ownership of the house, in the assessment of her means. The HSE responded that Mrs F's share in the family home had to be included in the means assessment and that there were no mitigating factors to indicate that she could not realise her share of the house.
1.2 Mr B
In January 2007, Mr B's mother was in her mid-nineties. Up to 2007, Mr B cared for his mother in the family home. She was a medical card holder and in receipt of a Home Care Grant from the HSE. The grant enabled her son to employ three care assistants from the local area who called to the family home to look after his mother during the day, one in the morning, one at lunchtime and one in the evening. Mr B looked after his mother's needs in the morning before work, in the evenings after work, at night and at weekends.
Mr B worked in a HSE hospital (he still works there as a telephonist). Towards the end of 2006, his mother's health began to deteriorate. She became increasingly immobile and spent eight weeks in hospital. She returned home, but it became clear that she was going to need full-time nursing home care. She subsequently returned to hospital.
Following discussion with the Hospital discharge planners, a bed in a local public nursing home, a HSE hospital for older persons, was allocated to his mother. After much consideration Mr B decided to decline this offer because the hospital was located a considerable distance from his home and his place of work. Because he had cared for his mother at home for such a long time, he was anxious to maintain regular contact with her, to be able to see to her needs and to be able to visit her as frequently as possible. He expressed a preference for his mother to be looked after in a private nursing home, which was located close to his place of work. He felt that a placement there would enable him to visit his mother regularly.
Mr B asked the discharge planners whether there were contract beds (See Note 2 below) in this nursing home, but he said that the answers he got were vague. He was told that it was 'practically impossible' to get a contract bed and that they were 'very scarce'. He said that he was somewhat surprised at this because he understood that under a scheme introduced by the Minister for Health and Children, a number of elderly patients from outside the local area, including some from Dublin, had been allocated what he understood were contract beds. In the course of my examination of this complaint, my staff contacted the nursing home and were told that at around the period in question, there were a number of initiatives introduced by the Department of Health and Children with the objective of freeing up, what were known as delayed discharge beds, in acute hospitals. At the time, two or three beds were contracted in the nursing home, but the initiative was restricted to patients in acute hospitals outside the local area.
An application for a Nursing Home Subvention was made to the HSE on Mrs B's behalf in January 2007. At this stage she had not yet been admitted to the nursing home. In its consideration of this application, the HSE sought information with regard to the legal ownership of the family home and a written valuation of the property stating the market value of the property. Mr B told the HSE that the house was owned by his mother and he submitted a valuation statement from an estate agent estimating the value of the property at €340,000.
As in the case of Mr F., in assessing the means of Mrs B, the HSE imputed an income to the family home set at 5% of the estimated market value. This amounted to €326.32 per week, based on the estimated market value of the family home. The inclusion of this income resulted in a basic subvention entitlement of €25.47 per week being awarded to Mrs B.
Following this decision, two local representatives wrote to the HSE, on behalf of Mrs B,asking it to review its decision to award only €25.47 weekly subvention. They pointed out that while she had been cared for at home, she had been in receipt of a Home Care Grant from the HSE of €350 a week. The HSE responded to the representatives pointing out that, unlike the nursing home subvention, the means test for the Home Care Grant, did not take property into account. In its response the HSE also said that under the subvention scheme, where an applicant chose to be admitted to a nursing home, they could be considered for an enhanced subvention, which was an additional payment over and above the basic subvention payment. The maximum enhanced subvention available was based on an average weekly nursing home cost of €763 a week.
Mrs B was subsequently considered for an enhanced subvention. This process also involved an assessment of her means. Once again, in the assessment of Mrs B's means, the HSE imputed an income of €326.32 per week from the family home, with the result that an enhanced subvention of €253 became payable. This resulted in a total weekly subvention of just over €278 being awarded to Mrs B. Payment of the subvention commenced on 30 May 2007, the date of Mrs B's admission to the private nursing home. Mr B appealed this decision on the enhanced subvention on behalf of his mother on 16 July 2007. On 29 August he was advised that the appeal had been rejected.
At the time of Mrs B's admission to the nursing home, the weekly cost of a bed was €900 per week. If the imputed income had not been included in the calculations,Mr B would have been entitled to an enhanced subvention of €304.80, a basic subvention of €300, or a total subvention payable of over €600. This and her pension would have left a manageable balance to be paid every week. Instead, as the family home was considered, the total subvention received was approx €300 less, leaving a €400 weekly shortfall to be paid.
At the initial stages of Mrs B’s stay in the nursing home, the difference between the subvention payable and the nursing home costs was being met from her savings, but these began to diminish rapidly. Family members were also contributing towards the nursing home costs. Neither Mr B, his mother nor his siblings could continue to meet this cost from their existing resources. Mrs B's only source of income was her social welfare pension of approximately €220 per week. Mr B was unable to make up this difference from his weekly take home pay of €500 per week. Mr B said that if the HSE continued to assess the property, it would cause him severe financial hardship. In the early stages of her residence in the nursing home, Mr B even considered bringing his mother back home, but ultimately decided that the level of care she required could not be provided at home.
Mrs B's original subvention application was made in January 2007, when the Nursing Homes (Subvention) Regulations 1993 – 2006 were in force. These Regulations were later revoked and replaced by the Health (Nursing Homes) (Amendment) Act2007, (No 1 of 2007). At the time Mr B commenced his appeal against the decision on his mother's subvention, the Health (Nursing Homes) (Amendment) Act 2007 was in force. The objective of the 2007 Act was to ensure that the existing Nursing Home Subvention Scheme for private nursing home care was provided for in primary legislation and it set out the provisions of the Scheme for implementation by the Health Service Executive. Notwithstanding the enactment of the new legislation, Mrs B's subvention appeal was assessed under the pre-existing (although by then revoked) Regulations. The outcome of the appeal was that the decision of the HSE was in keeping with the Regulations governing Nursing Home Subventions and that there were no grounds to disregard the property.
Significantly,the new legislation, the Health (Nursing Homes) (Amendment) Act 2007, provided that the financial assessment of an applicant's means
'shall be made on the basis of ... all the applicant's assets and sources ofincome including ... property'
Accordinglythe discretion available to the HSE to exclude the family home in the means assessment under the revoked Regulations was removed. However, the new Act did provide an additional basis which would have allowed the HSE to disregard the family home in the means assessment. Under Section 7B (3)(b) (i) (V)(v) of the Health(Nursing Homes) (Amendment) Act 2007, the HSE was allowed to disregard an applicant's principal residence where it
"could reasonably giverise to the destitution or homelessness of a person having a close connectionwith the applicant for a period of not less than 12 months immediately beforethe application was made".
Mr B had claimed in his letter of complaint to me that the HSE's decision to assess an estimated rental income against the family home led to a reduction in the subvention which would otherwise have been payable to his mother. As a result, because of the lower subvention payable, an additional amount, of over €300 per week, had to be found in order to match the level of subvention which would have been payable if the imputed income from the family home had not been included in the subvention means assessment.
Given the HSE’s contention that Mrs B’s house was a potential source of income, my staff raised the question with Mr B as to whether it would have been possible for him to rent out a room in the house with a view to realising an income which might help pay for the nursing home fees. He explained that this would have posed a problem; firstly, the house was not his; secondly, there was very little demand for rented accommodation of this nature, as the area was remote and distant from the nearest village. Thirdly, he had a brother and a sister who lived in other parts of the country and who frequently stayed in the family home when they made their regular visits to see their mother. Finally, in the certificate of valuation of the property submitted by Mr B in conjunction with the subvention application, the valuer had indicated that the property was seriously affected by the noise generated as a result of its proximity to a local motor racing track and as the residence was 50 years old, it required major investment and modernisation.
The only other avenue available to realise the value of the house and provide a means of meeting the nursing home fees was through the sale of the house. If Mr B was to do this on his mother's behalf, he would be left with nowhere to live. At his age, and with a salary of €500 per week, he was not in a position to take out a mortgage to buy the house valued at €340,000. It was on this basis that Mr B suggested that the inclusion of the family home in the means assessment had the potential to make him homeless, a circumstance envisaged in the Health (Nursing Homes) (Amendment) Act 2007, for the exclusion of the family home in the income assessment.
1.3 Ms D
Ms D looked after her mother in the family home in Dublin. This house had been bought from the proceeds of the sale of her own house, and one belonging to her mother and with the additional assistance of a mortgage obtained by Ms D. The house was purchased so as to enable Ms D to care for her mother under the same roof and was, on the basis of legal advice she received, registered in the joint names of mother and daughter. Mrs D, her daughter and her daughter's son lived in the family home.
Up to 2005, Ms D worked full-time and, with the assistance of others, looked after her mother's care needs. However, when her mother's health began to deteriorate, Ms D decided to give up work and look after her mother on a full-time basis. Early in 2008, Ms D herself became ill and required hospital treatment. During this time her mother received emergency respite care in a nursing home. This proved unsuitable and Mrs D later relocated to another nursing home close to her home. As things developed, due to her on-going long term care needs, Mrs D was to remain in the nursing home.
Ms D applied for a nursing home subvention, on behalf of her mother, in April,2008. In assessing the means of her mother, in the context of the subvention application, the HSE imputed a weekly income to her of €242.60, in respect of her mother's half share of the family home. As a consequence, the basic subvention she received was reduced to €44.60 per week. She was awarded an enhanced subvention of €251.00, which brought the total subvention payable to €295.60 per week or roughly €1,200 per month. The monthly charge for the private nursing home was €3,770 at the time.
Ms D was unable to return to work because of her own health circumstances. As a consequence, she qualified for Illness Benefit from the then Department of Social and Family Affairs, out of which she paid her household bills and house mortgage. With very little money left after these outgoings, her sister began to pay the balance due on her mother's nursing home fees out of her own savings. However, when her sister's savings expired, Ms D was left with no choice but to sell the family home to finance her mother's continuing nursing home care.
Section7B (3)(b)(iv)(c) of the Health (Nursing Homes) (Amendment) Act 2007, allows for the disregard in the means assessment of:
"the principal residence of the applicant, if at the time of the application and thereafter it is continuously occupied by a relative of the applicant in receipt of Illness Benefit".
In light of this legislative provision and given that Ms D was in continuous occupation of the family home and in receipt of Illness Benefit, the HSE was asked, by my Office, to review the decision with a view to disregarding the principal residence in the means assessment. In its response the HSE said that it was not aware that Ms D was in receipt of a social welfare payment. It requested documentary evidence of her social welfare payment and remaining mortgage and loan payments and said that it would review the matter on receipt of this information. By this time however, Ms D had sold the house as she was unable to continue to meet the cost of her mother's nursing home care.
1.4 The Ombudsman Investigation and the HSE response regarding Mr F
Having engaged with the HSE over an extended period of time in respect of these cases, requesting that it re-consider the decision in each case, the HSE continued to maintain its stance. I considered that there was prima facie evidence that the actions of the HSE in respect of each case were unfair and represented undesirable administrative practice. Accordingly, I decided to proceed with an investigation of the complaints under Section 4 of the Ombudsman Act 1980.
Initially I wrote to the HSE informing it of my intention to carry out an investigation of the complaints received from Mr F and Mr B. Following the receipt of the complaint from Ms D, I told the HSE that I proposed to include her complaint within the scope of the investigation. Details of the complaints received were provided to the HSE in the Statements of Complaint (see Appendix 3).
Following my Office's notification to the HSE of my intention to carry out an investigation of Mr F’s complaint, the HSE advised that it was prepared to disregard the value of the property and arrange for a refund
On 27 October 2009, the Nursing Home Support Scheme replaced the Subvention Scheme – See Appendix 2
Long-term care beds in private nursing homes fully paid for under contract byhealth boards/HSE
2.1 Mr F
While I welcomed the decision of the HSE to disregard the value of the family home and to make a refund, I am dismayed that it did so only after I had notified it of my decision to investigate its handling of Mr F’s case. I had first approached the HSE on the matter in January 2005. In the intervening four years, despite repeated requests for the decision to be reviewed, it was not until May 2009 that the HSE finally relented and agreed to refund the arrears of subvention to Mr F’s family.
2.2 Mr B
In the analysis of the case of Mr B there are a number of relevant factors which must be considered:
A public bed was offered
It might be argued that the HSE, in making the offer of a bed in a public nursing home could reasonably claim to have met any obligation in respect of the provision of long term care for Mrs B. However, the offer of a public bed is unrelated to a person’s right to be assessed fairly for subvention when they choose to opt for private care. It seems to me that, given Mr B’s long established commitment to his mother's care, Mr B's reasons for seeking a bed in the nearby private nursing home were genuine and totally justified. Regardless of Mr B’s decision to refuse that public bed and pursue a private nursing home placement closer to his home, the HSE had a legal obligation, placed upon it by the Nursing Homes (Subvention) Regulations 1993 - 2006, to carry out a fair assessment to determine whether Mrs B qualified for a subvention and the level of subvention to be paid.
Contract beds in the private nursing home
While Mr B was struggling to fund the nursing home costs of his mother, the HSE was, at the same time, funding the provision of contract beds for other persons in the same nursing home. While I understand the HSE’s particular reasons for negotiating these contract beds, to a lay person, with genuine needs, and willing to make some contribution towards his mother’s care, the landscape was confusing.
Imputing a value from the family home: the HSE’s discretion
Mrs B's original subvention application was made in January 2007 under the Nursing Homes (Subvention) Regulations 1993 - 2006. Under these Regulations, the health boards / HSE had discretion whether to take into account the value of the family home in the means assessment. By refusing to exercise its discretion in Mrs B's case to exclude the family home from the means assessment, a sum of €300 that might have been made available to assist with the costs was not made available.
It is difficult, for a number of reasons, to understand the rationale for the HSE's decision not to disregard the family home in the means assessment and thus increase the level of subvention payable.
The Nursing Home Section of the HSE had been approached on a number of occasions by Mr B, my Office and two elected representatives, requesting it to exercise the discretion contained in the Regulations not to impute an income to the property owned by Mrs B. Underlying these requests was the fact that this discretion was available to the HSE so as to ensure that, where difficult situations arose which might not have been envisaged when the Regulations were being made, they could be dealt with in a fair and reasonable manner. In Mr B's case, the discretion would have enabled the HSE to take into account the uniqueness of Mr B's situation - his personal financial circumstances and the factors which existed which would have prevented the property from generating an income through its sale or by being put up for rent i.e. the legal obstacles, the remoteness and condition of the property and the social requirement to provide on-going accommodation for himself and other members of his family, when, as Mr B told us, they frequently travelled to visit Mrs B in the nursing home.
The response of the HSE to these requests was to quote from the Regulations the circumstances where the principal residence could be disregarded. It added that as these circumstances did not apply in Mr B's case, the property could not be disregarded.
Effectively the HSE chose to limit the scope of its discretion and not to take individual circumstances into account in making its decision.
The new Regulations at the time of the Appeal and the effect of rendering a person homeless
Mrs B's case straddles the period during which the 1993-2006 Regulations were in force and were later revoked and replaced by the Health (Nursing Homes) (Amendment) Act 2007. In effect this gave the HSE two opportunities to disregard the property. The new Regulations gave the HSE the ability, during the appeal stage, to consider whether imputing a value could have the effect of rendering a person homeless. As stated in the previous section, Mr B’s age and his salary of €500 per week prevented him from taking a mortgage on the house and the house was not rentable.
Other aspects of the legislation highlighting needs of certain groups
Another aspect that should be given some consideration here, be it more indirect, was the provision in the Nursing Homes (Subvention) (Amendment) Regulations, 2006, for the HSE to disregard the principal residence if it was
"occupied immediately prior to or at the time of the application by a spouse, a son or daughter aged less than twenty one years or in full-time education or a relative in receipt of Disability or similar Allowance, Blind Person's Pension, Illness Benefit, Invalidity Pension, State Pension (Contributory) in any case where, before 28th September 2006, the relative would have been entitled to an Invalidity Pension, State Pension (Non-Contributory), or any successor to an allowance, pension or benefit referred to in this paragraph in any case where that allowance, pension or benefit, as the case may be, ceases to be provided, or any European Union equivalent to an allowance, pension, or benefit, or any successor thereto, referred to in this paragraph, for the first three years of the person's stay in nursing home care, from the date of admission.”
These grounds to disregard the family home in the subvention means assessment clearly do not embrace situations similar to those in which either Mr B, or indeed Mr F’s family referred to earlier, found themselves.
We are all familiar with stories of a son or a daughter remaining in the family home to care for an elderly parent. Often it happened, in time, that the family member was no longer able to continue to provide such care and long term nursing home care became the only option. If the relative had no choice but to access private nursing home care and financial assistance was sought from the health board/HSE towards the nursing home costs, the family member could, as in the case of the complainants concerned in this report, have found themselves in a very difficult situation and the subject of very serious financial adverse affect. This was by virtue of the fact of their having to contribute to the nursing home costs because they occupied the family home but were not included among the list of persons listed in the Regulations above, who by virtue of their age, status or the social welfare payment they received, caused the family home to be disregarded in the means test.
The discretion, i.e. the option available to the HSE as to whether to impute an income to the principal residence or not, provided in the 1993 and 2006 Regulations, enabled difficulties of this nature to be mitigated.
5% of the value of the family home, the property boom and rising property costs
Another factor that must be considered and which again should have strengthened the complainant’s case was the value of houses at that time. The issue of family homes being included in the means assessment for subventions became extremely acute during the housing boom in the late 1990s and the early part of the last decade, when the valuation of properties soared. The notional income imputed by the health boards/HSE was directly related to the estimated market value of the property. This in effect meant that the income imputed in respect of the family home, in the subvention means assessment, was continually subject to progressive increases arising from house price inflation and the effect of the 'location' factor in the ramping up of property valuations. This existed even when the family member had no intention of selling the property and realising, what we now know, was an inflated value.
The effect of house price inflation in the context of means testing for subventions was to increase the level of imputed income associated with the valuation of the property and decrease the level of subvention payable. This situation impacted on the circumstances of the person or persons who continued to live in the family home by increasing the difference between the subvention payable and the nursing costs which, in the case of my complainants, had to be met from their own resources.
Confusion regarding the rules
Finally, from my investigation of Mr B's complaint, it is apparent that there was some confusion within the office responsible for the provision of residential services for older persons in the HSE in respect of the rules governing the award and payment of subventions. In the case of Mr B, his mother's original application for subvention was made on 19 January 2007. The application was considered under the Nursing Homes (Subvention) Regulations 1993 as amended. The appeal against the decision in respect of Mrs B's application for an enhanced subvention was made on 17 July 2007. This was after the enactment (19 February 2007) and commencement (5 June 2007) of the Health (Nursing Homes) (Amendment) Act 2007. The 2007 Act amended the Health (Nursing Homes) Act 1990 and revoked the Nursing Homes (Subvention) Regulations 1993. Notwithstanding the commencement of the new legislation, Mrs B's appeal was considered under the pre-existing, revoked Regulations.
In February 2007, the HSE attempted to introduce a mechanism with a view to standardising the implementation of the subvention scheme on a national basis and to achieve a degree of consistency in the determination of subvention entitlement. However the National Guidelines, which were introduced in February 2007, were introduced one month after the enactment of the Health (Nursing Homes) Amendment Act 2007, and three months before its commencement.
As I see it, given all the circumstances described before, the complainant found himself in a very difficult situation. Understandably he was particularly aggrieved that, having looked after his mother for so long, with some limited assistance from the State in the form of a Home Care Grant, he was finding it increasingly difficult to provide the financial support necessary to ensure that his mother continued to receive appropriate nursing home care.
It is evident that my complainant and his siblings were being inadvertently pressurised into a very difficult situation. In this context, I am satisfied that it would have been reasonable for the HSE to have concluded that both the Nursing Home Subvention Regulations 1993 - 2006, which allowed for the family home to be disregarded in the subvention means assessment, and the Health (Nursing Homes) (Amendment) Act 2007, under which the family home could be exempted because of the potential to render a person homeless, did provide a basis for the payment of an increased subvention. This would not, of course, have meant that the full nursing home fee would have been covered by the subvention, but that the continuing financial burden on the family would have been moderated.
In commenting on the draft Investigation report, the HSE pointed out that Mrs B had been offered a public bed, in a long stay facility, located approximately 23 miles from her son’s place of work and that there were no other public beds available for her use. In addition, the HSE said that an enhanced subvention had been paid in respect of her stay in the private nursing home from the date of her admission. In this connection, I have acknowledged in the investigation report that Mr B's mother was offered a public bed, but my view is that in opting for private nursing home care the HSE had an obligation, placed upon it by the Nursing Home (Subvention) Regulations, to carry out an assessment to determine whether Mrs B qualified for a subvention and, if so, the level of subvention to be paid. In this context, I feel it was unreasonable, giving the special circumstances applying in this case, for the HSE not to exercise the discretion available to disregard her home in the means assessment. The HSE pointed out that this discretion was exercised within the overall budgetary constraints imposed by the Health Act 1996 (and recently the Health Act 2004). However, I am clear that the intention of this accountability legislation was not to undermine or reduce powers provided in other legislation, such as the discretion available to the HSE in this instance.
While I fully acknowledge the steps taken by the HSE to provide Mrs B with public care, I feel that the subsequent actions, in respect of the subvention means assessment, and the failure to acknowledge Mrs B’s unique circumstances, referred to earlier in the chapter, resulted in hardship to Mr B. The provision of redress for this hardship is reflected in my recommendation pertaining to Mr B.
2.3 Ms D
As is mentioned earlier, Section 7B (3)(b)(IV)(C) of the Health (Nursing Homes) (Amendment) Act 2007, allows for the disregard in the means assessment of:
"the principal residence of the applicant, if at the time of the application and thereafter it is continuously occupied ... by a relative of the applicant in receipt of ... Illness Benefit"
At the time of her mother's subvention application, Ms D had qualified for, and was in receipt of Illness Benefit from the Department of Social and Family Affairs (now the Department of Social Protection) and was in continuous occupation of the house which she and her mother jointly owned. Accordingly, the principal residence should not have been included in the means assessment of Mrs D for the nursing home subvention.
When I put this point to the HSE, it advised me that the Subvention Office was not aware that my complainant was in receipt of a social welfare qualifying payment. It pointed out that on her subvention application form, questions as to who lived in the applicant's residence, details of sons/daughters under 21 or in full time education and about relatives who might have been in receipt of social welfare payments, were left blank.
However, it is clear from an examination of the application form -
It is true that the question about relatives in receipt of social welfare payments was unanswered on the application form. However, details of Ms D's social welfare payment were given in the appeal form. In the letter accompanying the appeal form, Ms D said that
Despite all the information about her circumstances having been given to the HSE, her appeal was turned down. The HSE's decision not to uphold the appeal was made on 10 October 2008. In its decision letter, the HSE said that her appeal had been examined in light of her appeal statement and the information held on file with her application, but the decision originally conveyed to her was correct and that the calculations were in accordance with the relevant legislation. The letter added that the legislation and guidelines set out particular circumstances where the value of the house can be disregarded and that she should contact the Nursing Home Section where information can be obtained.
Following a request for a report on the case by my Office, the HSE, on 17 December 2008, wrote to Ms D requesting her to provide documentary evidence of her social welfare payment, her mother's bank statements, remaining mortgage and loan repayments. It added that on receipt of this information the case would be re-assessed. However at this stage the family home had been sold.
From my examination of Ms D's complaint, it is clear to me that the events following her mother's transfer to the nursing home have been particularly painful and distressing for her. Although suffering from a serious illness herself, she has endeavoured to ensure that her mother's care was paid for at a time when she was unable to work and her only income was her illness benefit from the Department of Social and Family Affairs. It took from 18 April 2008 until 10 October 2008 to process her application and appeal, at which point an incorrect decision was made not to disregard the value of the principal residence, even though information had been conveyed to the HSE to enable it to do so. The seriousness of her situation was outlined in detail in the letter which accompanied her appeal form.
The consequences for Ms D have been severe and far-reaching and ultimately created a situation in which she felt that she had no option but to sell the home where she and her mother had lived, where they were secure and had made good friends and neighbours. Payment of the nursing home fees had become a serious problem for her and the sale of the family home offered the only means of paying the nursing home fees. The house was later sold and, from the proceeds, the mortgage on the house was cleared, a loan was repaid, alternative accommodation was rented and later, a smaller dwelling, where Ms D now lives with her son, was eventually purchased.
Ms D says she has found it difficult to settle there. It is a much smaller property which required a considerable amount of renovation and she has found living there very lonely compared to her previous home where she had many friends and good neighbours. The evidence suggests that had the HSE handled her subvention application in a reasonable manner, these consequences would have been avoided.
2.4 The Nursing Home (Subvention) Regulations 1993 - 2006 and the Assessment of means of Applicants - Inconsistency and Confusion
From my investigation of these three complaints and the examination of many others received over the years, it is apparent that there was always the potential for inconsistencies in the assessment of a principal residence as set out in the Nursing Home (Subvention) Regulations 1993 and the Nursing Home (Subvention) Regulations 2006. The interpretation of the Regulations could lead to mistakes and inconsistencies in the application of the subvention rules. For example, under the 1993 Regulations, subvention applicants who owned a house worth more than £75,000 could be refused a subvention (unless it was being occupied by a spouse or a son or daughter under 21 or a relative in receipt of a prescribed payment).
Up to the making of the 2006 Regulations, the limit of £75,000 on housing assets remained in force notwithstanding the increases in house prices which had occurred, particularly in urban areas, raising the possibility of certain categories of applicants to be excluded from the subvention in a way the Regulations did not intend.
The Health (Nursing Homes) Amendment Act 2007 created new valuation limits - €500,000 in respect of residences located in the Dublin area (although 'Dublin area' was not defined) and €365,000 for residences located outside the Dublin area.
Furthermore, given the way in which the health service was structured prior to the establishment of the HSE, and even after that, it was always likely that different practices would apply across the country in the application of the rule. For example, with regard to the valuations attributed to principal residences, it was unclear who should be asked to do this. Sometimes the assessment of the applicant might be accepted; in other cases an auctioneer’s estimate of value would be required. I understand that in one health board area an independent valuer was retained to do the valuation at no cost to the applicant, while in other areas the applicant paid for the valuation. The Regulations did not specify when a professional valuation was required and who should pay for it.
The HSE’s introduction, in February 2007, of guidelines attempting to standardise the implementation of the subvention scheme on a national basis came slightly too late for the issue of the discretion with regard to the value of the family home, as under the 2007 Act, the 1993 Regulations were revoked and the inclusion of the principal residence (except for stated exclusions) became mandatory in the means assessment.
It is clear that the situation with regard to the assessment of the principal residence in the means test for subvention, at the time of the three cases covered by this report, was confused, outdated and lacking in consistency. In this regard it is not unreasonable to conclude that the circumstances applying in these cases may have been replicated in many other instances causing widespread hardship
In accordance with the provisions of Section 6(6) of the Ombudsman Act, 1980, I asked the HSE to consider a draft of this report and to make whatever representations it wished to make in relation to the contents.
I received a detailed response from the HSE on the draft report which is included at Appendix 4 of this report. Having given careful consideration to the contents of the HSE's representations, I did not consider that, apart from a comment on Mr B's case, it was necessary for me to amend my report and advised the HSE that I intended to proceed with the finalisation of the Investigation Report incorporating my recommendations. A copy of my Office's response to the HSE is included at Appendix 5 and a further response from the HSE is at Appendix 6.
I recommend that the HSE,
While the HSE agreed to undertake a full review of Mrs. D's application, the HSE initially rejected my findings in relation to this case and the recommendation of a payment of €10,000 to Ms. D. The HSE contended that the appeal stage was the first time that the HSE had any indication that Ms. D was in receipt of a social welfare payment but there was no indication of when this payment commenced and no documentary evidence of this payment was provided. The HSE also contended that the Appeals Officer's decision related to the matter appealed, i.e.: the amount of "enhanced subvention" payable.
I was not in agreement with the HSE's view and affirmed my original findings and recommendations. I was of the view that the necessary information was provided by Ms. D at the appeal stage and that the HSE had two separate opportunities to correct the subvention calculations on the basis that the house was occupied by a person on a social welfare payment - firstly when the Nursing Homes Section was asked to review its decision by the Appeals Office in light of the information supplied by Ms. D with her appeal and secondly when the Appeals Officer dealt with the case. I was also of the view that Ms. D's letter accompanying the appeal form makes clear that she is appealing the basic figures relied on in the original decision rather than the amount of “enhanced subvention” payable and that the appeal was accepted and dealt with on this basis also.
I affirmed my two findings and recommendation in this case, namely that in light of the hardship endured and in recognition of the stress and anxiety experienced by Ms D as a result of her having to sell the family home to enable her to meet the costs of her mother's private nursing home care, the HSE makes a payment of €10,000 to her in addition to the outcome of the review of the subvention application. This recommendation was subsequently accepted by the HSE.