A TD has risen fears over a possible court challenge to the Fair Deal Scheme, due to the government’s “failure to backdate” the scheme.

Independent TD Denis Naughten said that there is the potential of a court challenge to the reform of the Nursing Home Support (Fair Deal) Scheme due to a failure to recognise farm transfers in advance of an older person entering long-term care.

“Under the new law older people who transferred the family farm and entitlements to a successor prior to entering a nursing home will have to do so again under the changes brought about by the reform of the Nursing Home Support Scheme currently going through the Dáil,” the Roscommon-Galway TD said.

“This is in order to avail of the three year means assessment cap for the farm.”

During a discussion on the issue in the Dáil Committee on Health, Naughten argued: “As a result, we are now placing a legal obligation on an older person to transfer an asset that was not in their name when they went into the nursing home, in order to avail of the three years on the means assessment.

In order to avoid such a legal challenge, Naughten proposed that the new cap on a working asset such as a business or farm be backdated to the date of the government decision to reform the law – July 24, 2018.

“From that date, the government decision has been taken not to charge older people for working assets beyond the three-year period, and therefore no charges should apply to farm or business assets for those who had already paid the three years contribution up to that date or who reached that three year anniversary from July 2018 until the law is enacted,” the TD argued.

“The number of people involved is quite small but some of the families are facing significant bills which may force the sale of the family business or farm.”

“It is only fair that the new charging regime applies from the date of the government decision and not the enactment of the bill itself,” he insisted.

This, he said, would “protect the state against the possibility that the Fair Deal legislation may be struck down because of its unfair treatment of those who have already transferred their holdings to a successor”.