Report on Nursing Home Subventions

Introduction

It was inevitable that the new nursing home subvention scheme would give rise to some level of complaint. Most new schemes have their teething problems and it is not unusual that certain provisions will prove to be ambiguous or, at least, open to interpretation. However, what became the single biggest source of complaint in the case of this scheme had little to do with teething problems or with ambiguities in the text of the Regulations. This was an issue which, as mentioned in Chapter Three, was predicted from the outset to cause trouble.

For more than five years the Ombudsman received complaints that the health boards were effectively including the income of the applicant's children in the calculation of subvention entitlement. In some cases the complainant, usually an adult son or daughter of the claimant, objected to this in principle; in other cases, the complaint related to the details of the assessment and/or to the manner of its conduct.

The practice of the EHB differed somewhat from that of the other boards. Whereas it did take account of the income of the applicant's children, and did refuse or reduce subventions on this basis, it generally dropped this aspect of the assessment if the family objected. [During the period 1993 - 1998 the assessment of children by the EHB had the effect of reducing the volume of subventions paid by approximately �810,000.1] This meant that complaints to the Ombudsman on this account, against the EHB, did not arise.

From the outset, the Ombudsman was unhappy with those provisions in the Regulations which dealt with family assessment. However not until January 1999, and only after a sustained series of contacts with the Department on the matter, were the impugned provisions deleted from the Regulations. From the Ombudsman's perspective, and even more so from the perspective of the families involved, it was disappointing that it should have taken more than five years to resolve this issue. Only towards the end of the period did the Ombudsman discover, following a detailed examination of its records, that the Department had been aware from the outset that the provisions in question were seriously flawed. Information gleaned from the Department's files is presented separately in Chapter Six.

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The Law

The statutory basis for the payment of subventions is contained at Section 7(1)(a) of the 1990 Act which provides:

"Where, following an assessment by a health board of the dependency of a dependent person and of his means and circumstances, the health board is of opinion that the person is in need of maintenance in a nursing home and is unable to pay any or part of its costs, it may, if the person enters or is in a nursing home, and subject to compliance by the home with any requirements made by the board for the purpose of its functions under this section, pay to the home such amount in respect of such maintenance as it considers appropriate having regard to the degree of the dependency and to the means and circumstances of the person."

Section 7(2) then delegates to the Minister for Health the power to prescribe by regulation:

"the amounts that may be paid by health boards under this section and such amounts may be specified by reference to specified degrees of dependency, specified means or circumstances of dependent persons or other such matters as the Minister may consider appropriate.

It is clear that the key terms in relation to subvention entitlement are the means of the claimant, the degree of dependency of the claimant and the circumstances of the claimant. Of these three terms, only "dependency" is defined in the 1990 Act itself. The terms "means" and "circumstances" are defined in the Regulations, made by the Minister on the authority of Section 7 of the 1990 Act.

The definition of "means" in the Regulations is unexceptionable and fully in line with the general public understanding of the term. However, the Regulations define "circumstances" in a most unusual way, by reference to attributes of others rather by direct reference to the claimant himself or herself. The definition is as follows:

" ..'circumstances' for the purposes of these Regulations is the capacity of a son and/or daughter, aged twenty one years and over and residing in the jurisdiction, of a person who has qualified for a subvention to contribute towards the nursing home care of his or her parent."

Given the nature of delegated legislation, where what is involved is the putting into effect of principles and policies2 set out by the Oireachtas in the parent Act, it is difficult to see how this very unusual definition of "circumstances" can be regarded as being within the intention of the Oireachtas. As the 1990 Act does not define "circumstances" then, under the usual rules of statutory interpretation, the term should be given its ordinary meaning. Or at least it should not be given a meaning, as appears to be the case here, which is widely at variance with its ordinary meaning. The decision to define "circumstances" in this way is central to the difficulties and complaints which subsequently arose in relation to the assessment of family members. (This definition of "circumstances" was ultimately deleted - see later in this Chapter - but not before a great deal of time and effort was spent in analysing its consequences and discussing its validity.)

The Third Schedule to the Regulations sets down detailed rules as to the manner in which health boards are to assess the disposable income of a son or daughter whose parent has applied for a subvention. The rules include deductions for outgoings such as income tax and social insurance as well as personal allowances or disregards in respect of the son or daughter and his or her dependent spouse and/or dependent children. Rule 7 of the Third Schedule provides:

"Based on its assessment of the disposable income of a son and/or daughter the health board shall inform the son and/or daughter whether in its opinion, he or she has the capacity to contribute to the costs of his or her parent's care in a nursing home and the amount, if any, per week by which the board will abate the amount of subvention appropriate to the parent's level of dependency and means in respect of its assessment of the son's or daughter's capacity to contribute."

Other relevant provisions in the Regulations are the following: Article 4.5 which requires a health board to assess the "circumstances" of the claimant; Article 9.1 which provides that, "having decided that a person qualifies for a subvention, a health board may (our emphasis) take into account the circumstances of the person qualifying..."; Article 10.4 which appears to provide that, in calculating the rate of subvention to be paid, a health board may reduce the maximum rate payable by "no more than the amount by which the person's means and circumstances have been assessed by the board as exceeding the rate" of the NCOAP payable at the time.

Comment

Unfortunately, and whatever their validity, these Regulations are extremely confusing and require the closest attention to even begin to understand what is intended. On the one hand, health boards have no choice but to assess "circumstances" (Article 4.5). They are required to inform a relevant son or daughter of the board's opinion as to his or her capacity to contribute and of the amount by which the board will reduce the subvention otherwise payable (Rule 7 of the Third Schedule). On the other hand, once a claimant has been found to be qualified on the basis of means and dependency, Article 9.1 says that the health board may (but presumably has discretion) take "circumstances" into account. And Article 10.4 says that, in calculating the amount of subvention payable, the health board may (but presumably has discretion) reduce the maximum subvention by an amount not greater than the excess of means plus circumstances over the current NCOAP rate. Article 10.4 holds out the possibility that there will be no reduction at all by reference to means and/or circumstances; or the reduction could be by reference only to means; or it could be by reference to only part of the means and/or of the "circumstances".

Furthermore, the wording of Article 10.4 is flawed to the extent that it refers to "the amount of the subvention to be paid to a person who is not resident in a nursing home ..". To make sense of this, one must read into the text that it refers to a person currently not in a nursing home but proposing to enter a home. From an operational viewpoint, the Regulations are far from being internally consistent and require that choices be made between a number of possible interpretations. Unfortunately, the choices actually made appear to have been guided by the reality of funding shortages rather than by the dictates of statutory interpretation or of good administrative practice.

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Family Assessment Complaints

By early 1994, within a few months of the commencement of the 1990 Act, complaints in relation to family assessments began to arrive in the Ombudsman's Office. This stream of complaints continued into 1999 even after the deletion of the family assessment provisions from the Regulations (which took effect from 1 January 1999). It is not the purpose of this Report to outline in any detail the outcome of individual complaints. But it is important to say that almost each individual case had to be examined separately in a time-consuming and frequently frustrating exercise. The Ombudsman's attempt to deal centrally with the underlying issue, by way of an approach to the Department, proved equally time-consuming and frustrating. The Ombudsman pressed the Department to acknowledge that the practices complained of were unacceptable and urged it to advise the health boards accordingly. Unfortunately, the Department did not accept the Ombudsman's approach. As a consequence, the same type of complaint continued to be made and each one had to be dealt with individually by the Ombudsman.

The Ombudsman's analysis of the family assessment provisions was clear almost from the time the first complaints were made. A full statement of this analysis is set out in Chapter Seven. For present purposes, this analysis may be stated in the following brief terms:

• The 1990 Act does not make adult children legally liable for parents' hospital or nursing home costs.
• There is nothing in the 1990 Act to suggest that any such liability was contemplated by the Oireachtas.
• The Regulations cannot impose a liability on adult children which is not explicitly provided for in the 1990 Act.
• The definition of "circumstances", as originally provided in the Regulations, is most likely to have been invalid as it cannot be said that it was authorised by the Oireachtas in the 1990 Act.
• The practice of determining, and assessing, a level of contribution which an adult son or daughter should be capable of making towards a parent's nursing home costs was invalid, even where such an adult son or daughter is willing to make some level of contribution.
• The entire approach of the Regulations in relation to family assessments was fundamentally misconceived.
• This analysis is entirely neutral as to whether it is desirable that adult son or daughter should have some liability for parents' hospital or nursing home costs. This is a question of public policy which should be dealt with at the appropriate political level, i.e. by the Oireachtas. It is an open question as to whether or not the Oireachtas would, or could, provide for such a legal

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Complaint Details

The complaints received in relation to the family assessment provisions reflect a wide range of concerns. Only a minority of complainants expressed the explicit view that they were opposed in principle to the notion of family assessment. The majority of complainants, who may or may not have accepted the principle of such an assessment, were unhappy with the manner and the outcome of the assessment. As a general observation, it appears that the vast majority of the complainants and their families were unaware, and had not been made aware by the boards, of an existing statutory entitlement to long-stay care under the Health Acts. A related observation is that, in the majority of cases, claimants had not so much opted for private nursing home care as accepted it in the absence of a choice between public and private care.

The approach of many of the health boards gave families the very clear impression that, under the Regulations, the family was liable to contribute to their parent's nursing home costs. A more subtle version of this approach was that, whereas family members could not be forced to contribute, the health board was entitled to decide on the application as if the family was contributing. The examples below - which are not intended as comprehensive case summaries - illustrate this approach in action.

_ The Southern Health Board (SHB) refused a subvention to an elderly Alzheimer's patient because of the income of her married daughter who had been living away from her parents for 26 years. The claimant's husband did not wish his daughter to contribute. He felt this was wrong in principle; that, after more than 40 years of paying income tax and social insurance, he and his wife should not have to depend on their daughter. In any event, she was already incurring substantial costs in travelling to visit her mother and in contributing to other needs of her mother. The daughter wrote to the SHB to say that she was not actually contributing to the nursing home fees and that she felt "strongly that it is neither my duty nor function to pay such fees". Nevertheless, for almost five years the daughter's theoretical contribution remained the basis for the SHB's decision to refuse a subvention. The claimant's husband, who was in his eighties, pointed out to the SHB that he was paying the full nursing home costs and that this left him with less than �23 per week to live on. Regrettably, the husband died suddenly before this complaint was resolved. Ultimately, the SHB accepted that its decision was not sustainable and arrears of �14,027 were eventually paid.

_ In some cases the claimant's sons and/or daughters refused to provide the health board with the income and personal details requested. Different boards responded to this in different ways. In some instances, where such details were not supplied by a son or daughter, the health board proceeded with a notional income assessment based on "local knowledge". This was the case in a complaint against the South Eastern Health Board (SEHB) where one of the claimant's sons refused to co-operate. The SEHB explained this to the Ombudsman as follows:

"Despite numerous reminders, Mrs T's son J. failed to provide the information needed to ascertain his disposable income, and we were obliged to base our assessment on best local information - (he) runs a .. business. J. was assessed as having a minimum disposable income of �32.41 per week. If of course J. does provide the necessary information, we would review the case again."

However, one of the Dáil representatives of this family wrote to the Ombudsman about the case and his perspective on matters was quite different:

"They applied to the [SEHB] for a nursing home subvention and were refused on the grounds that the income from her family was marginallyover the limit. Quite frankly this is ridiculous. The fact of her circumstances are that Mrs. T. lived with her son W.... [whose] sole iincome is unemployment assistance at the maximum rate. She is 89 years of age, her sole income is an old age pension. She is receiving no financial support from other members of the family who have not lived with her for many years."

_ Another approach, adopted in particular by the Western Health Board (WHB) and the Midland Health Board (MHB), was to refuse a subvention where the claimant's children, or any one of them, refused to reveal income or personal details. For several years the WHB issued a standard letter to the children of a subvention claimant in which it sought family and income details of the particular son or daughter. This standard letter contained the following warning: "Failure to return this form will result in the application being refused". The WHB's implementation of this threat resulted in several complaints to the Ombudsman, including some right up to 1998. Some complainants objected to the arbitrariness, as they saw it, in the selection of which sons and daughters were chosen to contribute - for example, a son or daughter living just across the border with Northern Ireland would be excluded irrespective of income. Some other complainants simply felt that a parent's entitlement should not be dependent on the position of adult sons or daughters.

The MHB operated a similar approach, as illustrated in the extracts from a particular case reproduced below. The MHB wrote, as follows, to the daughter of a subvention applicant on 9 April 1998:

"... the [Midland] Health Board are therefore now requesting you to submit details of income by way of P.60, Tax Assessment Form, Farming Accounts, Income from investments etc. The Health Board must be furnished with these details to enable us to determine your liability, if any. Failure to furnish this information will mean that the application for subvention cannot be proceeded with."

However, the response of the daughter in question was quite trenchant:

"I wish to inform you that I absolutely refuse to furnish such details and demand that you assess my mother's entitlement to subvention on her own means. I feel she has been very badly treated by the Midland Health Board over the past three years in being refused what is her entitlement as a Non-Contributory OAP with NO OTHER MEANS of any sort."

In this particular case the MHB eventually agreed, following the intervention of the Ombudsman, not to have regard to the daughter's income. Arrears of subvention were paid.

_ The type of letter sent by a number of health boards to a claimant's children did, whether explicitly or implicitly, convey the impression that children were obliged to provide income and family details. The SEHB, for example, generally made it clear to adult sons and daughters that a decision could not be taken on a parent's claim in the absence of the children's details. Similarly, the SHB used the following formula in writing to a claimant's children: "Failure to respond to this query in full detail can result in the application being delayed or refused. I urge you to return the required information as soon as possible to avoid any such complications". In a number of complaints against the WHB it was claimed that income and family details of adult sons and daughters were obtained under false pretences i.e. on the basis that children were legally obliged to provide such details. In one such case the subvention claim was made in October 1997 and the claimant's children supplied personal details on the basis of the WHB letter which had made it clear that failure to co-operate would result in a refusal of the subvention. This resulted in the subvention being reduced by �46 per week. In November 1998 the claimant appealed the rate of subvention and argued that the children were not contributing �46 per week. She wrote:

"I am again enclosing the letter, which you sent to my children, dated November 10th 1998. I would like to draw your attention to the sentence, which is underlined. (Saying failure to co-operate will result in a refusal of the claim.) My children co-operated because of this statement and unwillingly supplied details of their circumstances. They did not agree to, nor have they contributed to, my maintenance. Their details of circumstances were acquired by the Western Health Board under false pretences. Consequently the correct level of subvention should be backdated to 8th October 1997."

The WHB initially agreed to cease assessing the children's income from the date of appeal. But when the Ombudsman presented the WHB with a report on his preliminary examination of the complaint, it decided to withdraw the children's assessment with effect from the first date of claim in October 1997. Arrears of �2,502 were paid.

_ What emerged from some of the complaints was that certain family members could be left to pick up the bill where other family members refused to contribute or refused to co-operate with the health board's assessment of "circumstances". For example, a health board might decide that three children could contribute and that no subvention would be payable on that basis. But if two of the three children actually refused to contribute, or refused to co-operate with the health board's assessment procedures, this did not necessarily mean that the health board would adjust its decision accordingly. A particular complaint against the WHB highlighted this problem. The complaint was made by the daughter of a 95 year old woman who had been placed in a private nursing home. A subvention was refused by the WHB as some members of the claimant's family had given "insufficient information" on their income. For reasons of confidentiality, the WHB would not tell the daughter principally involved (the Ombudsman's complainant) which family members were uncooperative. This left the complainant in what she believed to be an impossible position. As she put it to the Ombudsman:

"It appears that the Health Board will not release this information except to each individual. You will appreciate that it is well nigh impossible for me to contact each family member and ask them to write in to ascertain was their information sufficient and then assemble this information. Our family are all over 53 years of age, scattered in different parts of the country....I regard it as unconstitutional for the Western Health Board to ... seek details of family income and other matters in this case ..."

In this particular case, the WHB eventually agreed to pay almost the maximum level of subvention retrospective to the patient's admission to the nursing home.

In some instances health boards took account of the potential contribution of a son or daughter even where that son or daughter had lost all contact with the parent and where no such contribution was being made or was likely to be made. This is well illustrated in the following extract from a letter of May 1997 to the Ombudsman from the daughter of an elderly subvention applicant:

"[My mother] was earlier this year deemed to be in the middle dependency bracket (she is unable to move about without the assistance of a walking frame) but then they decided (SEHB) that as one of my brothers has a [professional] practice he should pay for her, in spite of the fact that he has no communication [with her] whatsoever and has never had (a fact that can be verified by the owners of the nursing home)."

Ironically, perhaps, the Department had anticipated that problems could arise in cases where a son or daughter had lost contact with a parent. The Minister for Health, speaking in the Dáil on 4 May 1993, clarified what should happen in these situations: "In determining the scope and scale of the actual subvention, it is reasonable to take into account the income of sons and daughters...I might add that if there are sons and daughters who are not in contact with elderly parents, who are not in this country, or who have lost contact with them even within this country, there will be no question of that in any way affecting the level of subvention being made available".

In practice, as this and other cases established, the Minister's clear statement of what should happen was disregarded.

_ Several complainants made the point that the subvention system is based on an entirely false premise. It appears to assume that a patient with income at the NCOAP level will be able to afford a private nursing home if paid the maximum subvention for that level of dependency. It appears to be on this basis that a patient, with assessed means in excess of the NCOAP rate, has the maximum potential level of subvention reduced by the amount by which means exceed the NCOAP level. This was acknowledged to be a problem by the Review Group on the Operation of the Health (Nursing Homes) Act, 1990 which reported in December 1995. It recognised that, frequently, the subvention rates were not sufficient to enable a person with no income, other than the NCOAP, to afford private nursing home costs. In very many cases, the shortfall between nursing home fees and the patient's own income plus subvention was (and is) being met by family members. But the fact that family members would have to subsidise the patient - even where the maximum subvention was being paid - was not taken into account in the manner in which most health boards operated the assessment of "circumstances". This point was made very forcibly to the SHB by a woman whose father had been refused a subvention because of her income. She was having to subsidise his costs very considerably. She wrote to the SHB in January 1998:

"I wish to state that I reject the Southern Health Board's assumption that it has the right to assess my disposable income and my capacity to contribute towards the cost of my father's care in a nursing home. I recognise that even with the granting of the subvention there will still be a shortfall which I will need to make up. It will be impossible for me to maintain the current contribution of �162 per week on an indefinite basis".

Unfortunately, this woman's father died before the SHB accepted that it did not have the right to include her in the assessment. However, as a result of the Ombudsman's intervention, the SHB paid arrears of subvention, totalling almost �3,800.

_ In many cases the elderly patient, the subvention claimant, would have been an in-patient in a public hospital for a period before been referred to a nursing home. Over the years the Ombudsman has regularly been made aware of difficulties where an acute hospital wishes to free up a bed occupied by an elderly patient but where there is no suitable public long-stay bed available. In a small number of cases a complaint was made that an elderly person, already in a public long-stay bed, was effectively discharged and forced into private nursing home care. In one such case, having had to leave public care, the patient was awarded a weekly subvention of �2.95 by the Southern Health Board. This is how the patient's son put the case to his local TD:

"Recently my mother had to be hospitalised, she has Alzheimer's and needs 24 hour care. She spent six months in [a public] Hospital but they couldn't care for her anymore so we had to put her in a private nursing home... We applied for a subvention grant but were refused. We are a working class family and cannot keep up the payments. .. I think the reason we were turned down was because my brother would be on fairly good money for part of the year. I am hoping you will be able to do something for us because we won't be able to keep paying for much longer."

The SHB subsequently increased the subvention from �2.95 per week -which the son regarded as no subvention - to �40 per week. Subsequently, and following the intervention of the Ombudsman, the SHB increased the subvention to �95 per week which was the maximum rate payable for a patient of that level of dependency.

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Attitude of Department

The Department was aware at all stages of the approach being adopted by the health boards in relation to the assessment of family circumstances. It was aware that many of the health boards operated the assessment as an integral and mandatory feature of the subvention scheme. It was aware that the consequence of the approach of many of the boards, in practice, was to leave family members with no choice but to support their parents in nursing homes. However, the Department failed to intervene with the health boards, in relation to these practices, in any effective way.

The Department's failure was all the more surprising in view of a very clear statement on how the Regulations should operate which had been made by the Minister of State at the Department of Health in September 1993. On 26 September 1993 the then Minister of State, Willie O'Dea TD, wrote an article for the Sunday Press under the heading: "Nursing home rules change for the better". This article was in response to a piece by the late John Boland in the Sunday Press of 19 September 1993 (see Chapter Three) and was by way of setting the record straight on some points raised by Mr. Boland. The main point at issue was whether health boards, under the Regulations, could require children to contribute to a parent's nursing home costs or, alternatively, decide on a subvention application as if children were contributing (even where they might not be so contributing). Minister O'Dea dealt with these issues fairly unequivocally:

"The Health Board is given no legal right to force a son or daughter to contribute if he/she does not wish to do so. All the Health Board can do under the new regulations is to enquire about the income or capital of the son or daughter of an applicant for subvention. If ... that son or daughter would be able to make a contribution to their parent's stay in the nursing home, then they can be asked to do so. The Health Board cannot compel them to do so. If the son or daughter refuses to contribute, the Health Board cannot escape its obligation to pay a subvention ... once the applicant himself qualifies for a subvention (on means grounds and medical grounds).

Every son or daughter has a moral obligation to help and support a parent who is infirm ... if they can afford to do so. John Boland interprets the new .... Regulations as meaning that moral obligation is now being made legally enforceable. He is wrong. It is not and it will not be." (emphasis in original)

Notwithstanding the position outlined by Minister O'Dea in his Sunday Press article, it is fair to say that the Department took no active steps to dissuade the health boards from practices which conflicted clearly with the Minister's position. This is despite the fact that both the boards themselves and the Ombudsman's Office raised the validity of the practices on many occasions. Indeed, in relation to one aspect of practice, the Department clarified for one of the health boards as early as May 1994 that its practice was incorrect but it did not actively seek to change this practice. The MHB had sought clarification in relation to a case in which an applicant's children were being assessed with the capacity to contribute �60 per week but had refused to pay this amount. The Department clarified the position as follows for the MHB:

"The nursing home legislation, while it enables health boards to enquire into the circumstances of sons and daughters of applicants, does not provide for compulsory payments by sons or daughters. Where sons or daughters decline to contribute, a health board should treat the applicant as if his or her circumstances have been assessed as zero. Mr. K. should receive the subvention to which he is entitled on the basis of his means and level of dependency.

It is recommended that even if the circumstances of an applicant are such that the income of a son or daughter would cover the cost of nursing home fees, and the son or daughter is willing to contribute, a minimal payment should be made to the applicant."

In the event, and even though it had sought clarification from the Department, the MHB did not act on the basis of the advice given in the particular case. The applicant would have been entitled to a subvention of �87 per week were his children excluded from the calculations. Instead of this, the MHB appears to have paid a subvention of �20 per week, the "minimal payment" suggested by the Department where children are willing to contribute and where that contribution would otherwise result in a nil subvention. The Department's clarification, as quoted above, was subsequently the subject of discussion at one of the regular meetings between health board CEOs and the Management Advisory Committee of the Department. This meeting took place on 23 June 1994. At the meeting, the CEOs expressed concern that the nursing home subvention scheme was taking on the aspect of a demand-led scheme and that the interpretation of the Regulations given to the MHB had enormous funding implications. The Department's representatives were concerned that current levels of expenditure on the Health (Nursing Homes) Act were undermining overall policy on the elderly. The discussion concluded on the basis that no extra funds would be available in 1994 and that the CEOs should "hold the line" on the issue for the moment to give the Department a chance to look at it.

It appears that at least one of the health boards (the NEHB) understood this to mean that its existing practices in relation to family assessment should continue for the time being; though it is open to the interpretation that health boards should comply with the Regulations until such time as the Department would have an opportunity to review them. It may be that the other health boards took a similar view to that of the NEHB. Whether or not there was a misunderstanding as to what was intended, the fact is that the Department's clarification of May 1994 had very little impact on actual practice. The health boards - including the MHB3 to which the clarification was addressed - carried on more or less as before. In the absence of an increased financial allocation, it may well be that they felt they had no alternative.

Subsequent to the meeting of 23 June 1994, the CEOs submitted a document to the Department in which they expressed surprise at the advice which the Department had given in May 1994 to the Midland Health Board. Commenting on this document, a senior official of the Department observed (in an internal memo of 13 September 1994) that, as the health boards had "actively participated in the preparation of the Regulations", they should not be surprised at what the Regulations actually contain.

In November 1994 the Department established a review group, comprising some of its own senior officials along with three health board Programme Managers, to look at the operation of the 1990 Act. This group was established in response to continued concerns expressed by the health boards. The issue of family assessment was amongst the issues considered by this group. The 1995 Report of the Review Group on the Operation of the Health (Nursing Homes) Act, 1990 specifically noted that the family assessment practices (described in this chapter) were commonplace; but the Department would already have been aware of this in any case. The Department was also aware, as will be seen in Chapter Seven, that the practice of most of the boards in this area was legally indefensible. As noted later, this review group's deliberations resulted in an easing of the family assessment means test criteria; but it did nothing to clarify the issues in any fundamental way

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Family Assessment Dropped

In July 1996 the Minister4 amended the Regulations to provide for an easing of the assessment of family members. The amendment provided for an increase in the amounts of income disregarded in the assessment of the individual family member. The personal allowance was increased from �5,000 to �8,000; the allowance for a dependent spouse was increased from �3,000 to �5,000 and the allowance for a child dependant was increased from �1,000 to �2,000. This easing of the means test for family members was in line with views expressed in the 1995 Report of the Review Group on the Operation of the Health (Nursing Homes) Act, 1990. The Review Group did consider the possibility of dropping the family assessment entirely but concluded that the costs of such a move, estimated then at �913,000 per year, were prohibitive. The change in the Regulations undoubtedly resulted in an increased subvention for some and the award of subvention (on a current basis only) for others who had previously been refused. But the fundamental fact was that the continued assessment of the means of family members, albeit in terms less punitive than hitherto, remained incorrect.

The 1996 amendment did not halt the flow of subvention complaints to the Ombudsman. The volume of subvention complaints eventually began to decline some months into 1999 following the deletion from the Regulations, with effect from 1 January 1999, of the family assessment provisions. The decision to drop family assessment was taken in the context of increasing pressure in individual cases - including many complaints being pursued by the Ombudsman - and explicit legal advice which restated what the Department already knew to be the case i.e. that the Regulations dealing with family assessment were almost certainly invalid.

The health boards were provided with additional funding of �2.1m in 1999 to cover the cost of the removal of the assessment of circumstances on a current basis. This additional allocation was necessary in order to meet the increased levels of subvention and, to a lesser extent, the increase in the number of subventions being paid, consequent on the decision to cease assessing family circumstances. The fact that an additional allocation was necessary in 1999, and that an equivalent addition will be required annually into the future, establishes that the assessment of circumstances was an integral part of the subvention scheme. Notwithstanding any protestation from the Department that they were somehow optional, it is clear that the family assessment provisions were intended to be applied and the savings thus secured were built in to the overall subvention funding arrangements.

The Department did not, at that stage, make financial provision for the retrospective withdrawal of the family assessment arrangements i.e. the payment of arrears in those cases where a subvention was either reduced or refused because of the assessment of a liability on the part of a son or daughter. The Department's rough calculation is that such retrospective payments could cost up to �6m. Individual health boards have paid out full arrears in some individual cases (often because of a complaint to the Ombudsman) but general retrospection has not been given. In his contacts with the Department, and in particular in providing it with a draft of this present report, the Ombudsman made clear his view that general retrospection should be paid. The detailed basis for this view will be clear from this report but, in essence, retrospection should be paid because:

• the family assessment provisions were almost certainly legally invalid;
• health boards generally misled families into believing that they had an obligation to contribute;
• health boards generally withheld the information that elderly patients are legally entitled to long-stay care from the health board and that entering a private nursing home should arise only where the patient genuinely wishes to choose private care over public care;
• the Department knew from the outset that the family assessment arrangements were legally invalid.

The Attorney General's Office advised the Department that there is no strict legal liability to pay arrears and that individual court actions would be unlikely to succeed. If, according to the Attorney General's Office, the Department should choose to fund the health boards to pay arrears, this would be on a policy basis rather than on the basis of a legal liability. The advice notes that the regulatory provisions in question are no longer in force and that a claim for misfeasance would be unlikely to succeed "as the Minister did not introduce the 1993 Regulations knowing they were contrary to the 1990 Act." On the basis of the information available to the Ombudsman and which is detailed in Chapter Seven, there is a contrary view to the position adopted by the Attorney General's Office; this casts doubt on the conclusion that there is no legal liability to pay subvention arrears.

In any event, at the point when this report was being finalised (January 2001), the Department informed the Ombudsman that it has now received the approval of the Department of Finance to the payment, by the health boards, of arrears in those cases where family assessment operated. The details of how this will be implemented are not yet available but the Ombudsman understands the Department has started discussions on the matter with the health boards.

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Notes

(1) Source: Letter of 17 January 2000 from CEO of Eastern Health Board to the Department of Health & Children.

(2) The leading case in relation to the "principles and policies" approach to secondary legislation is that of Cityview Press v An Chomhairle Oiliúna (1980). This approach was restated in the more recent Supreme Court decision in Sorin Laurentiu and the Minister for Justice, Equality and Law Reform (1999).

(3) In recent correspondence with the Ombudsman (letter of 3 October 2000), the MHB contends that it did apply the advice contained in the Department's letter of May 1994. It said that the specific case highlighted in this present report - the case which occasioned the Department's intervention - represented "only one isolated case" in which it had "misapplied" the "Department's letter of interpretation". However, on the evidence of complaints against the MHB received subsequently by the Ombudsman, it would seem that the spirit of the Department's advice was not implemented. These subsequent complaints show that the MHB continued to insist on adult sons and daughters giving income and other family details. Once given, these details were then used as the basis for assessing a family contribution, even where the family resisted paying such a contribution. The MHB attitude is well expressed in the following internal minute of 22 March 1999:

"... I accept that the Board has no statutory entitlement to enforce the payment of a contribution by a son or daughter, and could only enquire into the capacity of a son or daughter to contribute. However, having sought and obtained this information, the Board was obliged to take it into account in determining the rate of subvention payable and obviously, in the absence of the information being provided, such a decision could not be finalised."

(4) The Department points out that "the Minister who made the amending regulations was a different person to the one who made the original subvention regulations in July 1993 and was a member of a different political party ..."