ICSA warns of ‘constitutional problem’ with Fair Deal Scheme

A clause in the Fair Deal Scheme which implies that liability for nursing home care is exclusively applied to the farming child – and not the other children of the person in the nursing home – has been described as a potentially “constitutional problem” with the scheme.

Seamus Sherlock, rural development chairman of the Irish Cattle and Sheep Farmers’ Association (ICSA) has highlighted that the noted provision could potentially become a major sticking point for farm families set to avail of the scheme in the future.

Last week, the Government approved a proposal to change the treatment of farms and businesses under the Nursing Home Support Scheme, also known as the Fair Deal Scheme.

People using the scheme contribute up to 80% of their income and up to 7.5% of the value of any assets held towards their cost of care. The value of a person’s home is only included in the financial assessment for the first three years of their time in a care.

However, last week a decision was agreed to extend this three-year cap to farms and businesses where a family successor continues to operate the farm or business for six years.

The Department of Health is currently drafting the general scheme of a bill to provide for the necessary changes to the Nursing Homes Support Scheme Act 2009.

Commenting on the proposed changes, Sherlock said that the ICSA welcomes the move to limit contributions from a family business to three years of nursing home care.

However, there is a major question mark about the constitutionality of taking funding from the forced sale of land from a person who is not actually the beneficiary of the nursing home care.

Sherlock explained that this arises because there is currently a “five year look-back clause” under the Fair Deal Scheme.

“This means that where a farmer transfers a farm to his son or daughter before the need for nursing home care emerges, the successor is still liable for the bill by way of having a burden on the farm.

“There are many examples where this is manifestly unfair. It implies that liability for nursing home care is exclusively applied to the farming child and not the other children of the person in the nursing home,” Sherlock cautioned.

‘Outrageous’

The ICSA warns that this caveat is “outrageously unfair” and could lead to serious complications down the line.

A farm which was transferred in good faith and totally unencumbered could possibly acquire a large encumbrance in the form of nursing home fees without the consent of the transferee.

“If the parent sold the farm, the new owner would be entitled to unencumbered title and there could be no look-back clause, so why not in the case of a properly executed transfer?” he asked.

The ICSA is urging the Minister of State for Mental Health and Older People, Jim Daly, to “take this opportunity” to build on the good work he has already done by fixing this issue.

Otherwise, the ICSA believe, it will “only a matter of time” before the provision is challenged in the courts.

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