Report on Nursing Home Subventions

Why This Report?

The genesis of this report lies in the steady flow of subvention-related complaints (more than 150)2 received by the Ombudsman since the commencement of the scheme in September 1993. Prior to 1993, the Ombudsman had already been receiving complaints arising from inadequacies in the provision of long-stay, nursing home type care for elderly patients. The new arrangements promised in the 1990 Act, and which eventually came into effect in September 1993, were meant to represent a radical improvement. Ironically, the new scheme has given rise to more complaints to the Ombudsman than had been the case previously. In the main, these complaints have been about the refusal of subventions, or the payment of reduced rates of subvention, because of the operation of the means assessment. Details of some of these complaints are set out in the body of this present report as well as in some of the marginal inserts accompanying the report.

In the normal course, complaints received by the Ombudsman typically relate to the actions of individual officials (in the exercise of their official functions) or to positions adopted by individual public bodies. The nature and pattern of the nursing home subvention complaints received since 1993 reflect not just the actions of individual officials or public bodies; rather they reflect the corporate response of virtually an entire sector i.e. that of the Department along with most of the health boards.

The Ombudsman encountered several difficulties in his efforts to deal with the complaints received. These difficulties were reflected in delays, on the part both of the health boards and of the Department3, in dealing with issues raised by the Ombudsman and in the consistent re-iteration of explanations and arguments which were, in his view, without merit. Only in January 1999 were the two most significant of the subvention problems eventually resolved. As the Ombudsman now knows from documentation seen in the course of preparing this present report, it took the Department more than five years to acknowledge and address defects of which it was aware prior to September 1993. These defects, and the Department's approach to dealing with them and with concerns raised by the Ombudsman, are described in detail later in this report.

While the complaints received are described in this report, its primary focus is on wider, more fundamental issues which have to do with good administration, and indeed with good government, generally. These issues are discussed in Chapter Eight. As his examination of the various complaints proceeded, it became evident to the Ombudsman that the failures in responsiveness and accountability which he identified were not due simply to maladministration (although there was maladministration) but arose because of more fundamental defects in the relationship

• between the Houses of the Oireachtas and the Executive (that is, Ministers acting either individually or collectively in conjunction with the civil service)
• within the Executive and
• between the Executive and operating agencies.

Some fundamental aspects of the subvention scheme, for example whether children should financially support their elderly parents, were put in place without any input by, or any real discussion in, the Houses of the Oireachtas.

The issue of whether adult sons and daughters should, in fact, contribute towards the nursing home costs of elderly parents is one which recurs throughout this report. Accordingly, the Ombudsman wishes to make it clear from the outset that this is an issue on which he is entirely neutral. He sees this as a question of public policy which should have been dealt with at the appropriate political level, i.e. by the Oireachtas.

" protecting the rights of individuals in their dealings with those entrusted with the exercise of public power;

" providing redress where it is found that these rights have been infringed;

" promoting high standards of public administration generally;

" acting independently in support of Parliamentary control of the Executive in the interests of fair and sound administration."

Annual Report of the Ombudsman, 1999

What the Report Shows

What the report establishes in relation to the administration of the nursing home subvention scheme is a cause of real concern. Amongst the doubtful practices identified were:

• the making of regulations containing provisions which are likely to have been invalid (ultra vires the Act) including at least one instance in which the likely invalidity probably had been known in advance;
• the inclusion in a regulation of a provision which was almost immediately negatived by advice issued by the Department;
• the unreasonable prolongation of discussions with the Ombudsman's Office in relation to practices which, it appears, were known from the outset to be invalid or incorrect and
• the failure of some of the health boards to alter a practice even where the legal advice was that the practice was incorrect and where the Ombudsman had expressed the same opinion.

***

This is a report for the Houses of the Oireachtas which, in 1989/1990, devoted considerable time and effort to the enactment of the Health (Nursing Homes) Act. This Act involves far more than the payment of subventions to patients - it deals with the registration of nursing homes, the establishment of minimum levels of care and facilities as well as with an inspection system to ensure on-going compliance with registration standards - and the Ombudsman recognises that these provisions represent solid progress for which the Department must be commended. But in a very real way, it is the payment of subventions which impacts most directly on patients and their families. Standards mean little to the patient who cannot afford a place in the first instance. This report is intended to afford the Oireachtas an insight, in this specific instance, into how the law which it passed actually translated into action on the ground. The report draws heavily on the files of the Department, on health board case files, on Ombudsman complaint files as well as on media coverage of, and other commentaries on, the operation of the subvention scheme.

In observing the operation of the nursing home subvention scheme over the past seven years, the Ombudsman has always appreciated that the Department and the health boards have been operating in a very difficult environment. Securing adequate financial resources has always been a problem - for example, the maximum levels of subvention have not been increased since 1993, despite significant inflation in nursing home fees over that seven year period. (General inflation over the period April 1993 - April 2000 runs at 18%4; inflation in nursing home fees over the same period is likely to be at least twice the general level.) The Ombudsman appreciates that, in the real world of health service funding, competition for resources is a permanent reality. In particular, the Ombudsman is conscious of the difficulties facing the Department in securing adequate funding for the subvention scheme5. Sometimes Departments have to be inventive in order to make progress. In this instance, unfortunately, invention went beyond the bounds of what, from the Ombudsman's perspective, is either reasonable or acceptable.

Annual Report of the Ombudsman, 1990

Notes

(1) This is provided for in Section 6(6) of the Ombudsman Act, 1980:

"The Ombudsman shall not make a finding or criticism adverse to a person in a statement, recommendation or report under subsection (1), (3) or (5) of this section without having afforded to the person an opportunity to consider the finding or criticism and to make representations in relation to it to him."

In accordance with this requirement, the Department was sent a draft of the entire report other than the concluding chapter.

(2) In commenting on a draft of this report, the Department made the following observations in relation to the figure of 150 complaints:

"... firstly, this has to be seen in the context of almost 35,000 applications for subvention made under the scheme from its introduction to end 1999; secondly, the number of complaints which came to the attention of the Department was only a tiny fraction of 150, the vast majority of complaints related to individual cases and were dealt with at health board level."

(3) In commenting on a draft of this report, the Department said that these delays "were primarily due to the low staffing levels and heavy workload in the relevant Division of the Department."

(4) Source: Central Statistics Office (communication to Office of Ombudsman).

(5) The Department points out:

"It has not been possible to increase the [subvention] rates over the period, as priority has had to be given to meeting the rising costs of the scheme; expenditure on the scheme has increased significantly from �4m in 1993 to over �38m in 2000. The main reasons for this are the increase in the number of subventions being paid, the movement of older people into higher dependency levels thus entitling them to higher rates of subvention and, in more recent times, the effect of the abolition of the regulation which allowed family circumstances to be taken into account in determining the amount of subvention payable in individual cases."

In January 2001 the Department informed the Ombudsman that the subvention rates are to be increased with effect from 1 April 2001. The new maximum weekly rates will be �90, �120 and �150 in place of the current maximum rates of �70, �95 and �120.

Transcript of Interview with Department of Health Official on RTÉ Radio One, Liveline, 6 September 1993