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17 2006

Health (Repayment Scheme) Act 2006

PART 2

Repayment Scheme

Application for prescribed repayment.

5 .— (1) A relevant person or a connected person may make an application in the specified form to the scheme administrator for a prescribed repayment in respect of a recoverable health charge.

(2) The scheme administrator may refuse to consider or further consider an application if—

(a) the application does not comply with subsection (1), or

(b) the applicant fails to provide the scheme administrator with such information in addition to the information provided by or with the application as the scheme administrator may reasonably require to enable the scheme administrator to determine the application under section 6 .

(3) The scheme administrator shall refuse to consider an application made on or after—

(a) 1 January 2008, or

(b) the prescribed cut-off date,

whichever is the later.

Determination of application.

6 .— (1) Subject to subsection (2), the scheme administrator shall determine an application—

(a) if the scheme administrator is satisfied—

(i) that the applicant is entitled under this Act to make the application,

(ii) that the purported recoverable health charge to which the application relates is a recoverable health charge, whether in whole or in part, and

(iii) as to the amount (“eligible amount”) of that purported recoverable health charge which is a recoverable health charge,

by causing a payment, equivalent to the sum of the eligible amount and the interest, if any, payable by virtue of regulations made under section 20 (1)(b) which are applicable to this paragraph, to be made as soon as is practicable,

(b) if the scheme administrator is—

(i) satisfied that the applicant is entitled under this Act to make the application,

(ii) satisfied that the purported recoverable health charge to which the application relates is a recoverable health charge, whether in whole or in part, and

(iii) not satisfied, for whatever reason, as to the amount of that purported recoverable health charge which is a recoverable health charge,

by causing a payment to be made, as soon as is practicable—

(I) subject to subparagraph (II), by reference to the income the relevant person had, the type of in-patient the relevant person was or the type of institutional assistance the relevant person received, as the case may be, and the nature of the charge imposed on, or the contribution required of, the relevant person, during the period in which the relevant person was an in-patient for the purposes of the regulations referred to in paragraph (a) or (b) of the definition of “recoverable health charge”,

(II) if the information referred to in subparagraph (I) is not available and subject to subparagraph (III), that does not exceed 80 per cent of the maximum of the weekly rate of the old age (non-contributory) pension, within the meaning of the Social Welfare Acts, as applicable during the period to which the recoverable health charge relates,

(III) that takes into account the interest, if any, payable by virtue of regulations made under section 20 (1)(b) which are applicable to this paragraph,

(c) if neither paragraph (a) nor (b) applies, by refusing the application.

(2) Where the scheme administrator, not being the Executive, determines an application pursuant to subsection (1)(a) or (b), then, subject to section 16 (12), the Executive shall make the prescribed repayment concerned as soon as is practicable.

Priority of living relevant persons over estates of relevant persons.

7 .— The scheme administrator shall—

(a) in considering and determining applications, and

(b) in causing prescribed repayments to be made,

give priority to living relevant persons over the estates of relevant persons.

Operation of other enactments, etc. on prescribed repayments.

8 .— (1) A prescribed repayment—

(a) made to a living relevant person, or

(b) made directly to a living spouse or living child of a relevant person by virtue of section 9 (8),

shall be disregarded for the purposes of income tax assessment under the Income Tax Acts within the meaning of the Taxes Consolidation Act 1997 .

(2) A prescribed repayment—

(a) made to a living relevant person,

(b) made to the spouse or former spouse of a living or deceased relevant person, or

(c) made directly to a living child of a relevant person by virtue of section 9 (8),

shall be disregarded in the assessment under any enactment of a person’s means for the purposes of determining, assessing or reviewing (or any words to the like effect) a person’s entitlement, or level of entitlement, to a health or social welfare benefit (including any subvention to be applied towards any such benefit).

(3) A prescribed repayment made in respect of a recoverable health charge shall not of itself be a ground for withdrawing any tax relief previously granted in respect of the recoverable health charge.

(4) A prescribed repayment made to any person shall be disregarded for the purposes of Chapter 1 of Part VI of the Finance Act 1993 .

(5) Section 48(4) of the Capital Acquisitions Tax Consolidation Act 2003 shall not apply to a prescribed repayment.

(6) Without prejudice to any other method of recovery—

(a) any payments made to or in respect of a relevant person under the ex gratia scheme, or

(b) any charge imposed under the Health (Charges for In-Patient Services) Regulations 2005 (S.I. No. 276 of 2005) on a relevant person and which has not been paid,

may be offset against any prescribed repayment to be made to or in respect of that relevant person.

Payment of prescribed repayments and operation of patients’ private property accounts, etc.

9 .— (1) Subject to subsection (3), the Executive may pay a prescribed repayment—

(a) into the relevant person’s bank, building society, credit union or post office account or by cheque,

(b) in the case of a living relevant person, into the relevant person’s patient’s private property account.

(2) The Executive—

(a) may invest money—

(i) held in any patient’s private property account—

(I) unless otherwise directed in writing by the account holder, or

(II) unless otherwise directed in writing by a next friend appointed by a court,

and

(ii) with such financial institutions as are authorised by the Irish Financial Services Regulatory Authority established by section 33B of the Central Bank and Financial Services Authority of Ireland Act 2003 ,

(b) may use money held in any patient’s private property account for the benefit of the account holder—

(i) unless otherwise directed in writing by the account holder, or

(ii) unless otherwise directed in writing by a next friend appointed by a court,

or

(c) may, in respect of the patients’ private property accounts of all or some of the account holders residing in the same hospital or other institution, make an application, not more than once in each calendar year, to a judge of the Circuit Court in whose circuit the hospital or other institution, as the case may be, is situated, for directions as to how the Executive may use any money in excess of €5,000 or the amount prescribed in regulations made under section 20 (1)(c), whichever is the greater, in any of those accounts for the benefit of the account holder in whose patient’s private property account the excess is lodged.

(3) Where a prescribed repayment to be made—

(a) is in respect of a living relevant person and arises from an application made by an applicant falling within paragraph (a) of the definition of “connected person”, then the Executive shall, subject to any directions under subsection (7) to the contrary, only pay the prescribed repayment into an account (which may be a patient’s private property account) of the relevant person,

(b) is in respect of a living relevant person the subject of a certificate falling within section 4 (4)(b)(ii)(II), then the Executive shall, subject to any directions under subsection (7) to the contrary, only pay the prescribed repayment into the relevant person’s patient’s private property account.

(4) The Executive shall not make an application referred to in subsection (2)(c) until after it has—

(a) given notice in writing of its intention to make such an application to the account holders to whom the application relates, and

(b) published a notice of its intention to make such an application in at least one daily newspaper circulating in the State.

(5) A judge of the Circuit Court shall determine an application under subsection (2)(c) by giving such directions as the judge considers in the best interests of the account holders to whom the application relates.

(6) Where subsection (3) applies to a prescribed repayment, then the Executive or any other interested person may make an application to a judge of the Circuit Court in whose circuit the relevant person to whom the prescribed repayment relates is residing for the prescribed repayment to be made otherwise than as specified in that subsection.

(7) A judge of the Circuit Court shall determine an application under subsection (6) by giving such directions as the judge considers in the best interests of the relevant person to whom the application relates, including a direction that the Executive pay the prescribed repayment to which the application relates into such account, or to such person, as is specified in the direction.

(8) The Executive shall not pay a prescribed repayment directly to a living spouse or living child of a relevant person except in so far as the spouse or child, as the case may be, has satisfied the Executive that the prescribed repayment relates to an amount referred to in the definition of “recoverable health charge”—

(a) paid by the spouse or child, as the case may be, on behalf of the relevant person, and

(b) by virtue of which the relevant person is a relevant person.

(9) In this section, “account holder”, in relation to a patient’s private property account, means the person for whom the account was established.

Settlements.

10 .— (1) Subject to subsection (2), the making of an application for a prescribed repayment in respect of a recoverable health charge does not waive any other cause of action the applicant may have in respect of the recoverable health charge.

(2) A person who accepts a prescribed repayment in respect of a recoverable health charge (whether or not the prescribed repayment is for the whole or part of the amount sought in the application concerned) thereby waives—

(a) the person’s right to sue for any part of that recoverable health charge, and

(b) all other causes of action relating to the recoverable health charge.

(3) Where a person has received—

(a) an award from a court, or

(b) a settlement,

in respect of a recoverable health charge (whether or not the award or settlement is for the whole or part of the recoverable health charge), the person shall not be entitled to make an application in respect of any part of that recoverable health charge.

(4) Notwithstanding any period of time specified in rules of court for the payment into court, by way of lodgement, of a sum of money in satisfaction of an application, where the applicant has rejected a prescribed repayment, then the Executive may pay the amount of the prescribed repayment, or such other sum of money as the Executive thinks fit in all the circumstances of the case, into the court concerned in respect of any civil proceedings in which the applicant is a party and which arise out of the same, or substantially the same, acts complained of in the application.

Donations of prescribed repayments, etc.

11 .— (1) The Executive may establish and manage a fund, to be known as the Repayment Scheme (Donations) Fund (“the Fund”), to be applied by the Executive for the purposes of providing improvements in public health services provided to dependent older persons and persons with disabilities and the expenses of which are non-recurring and are not expenses which would, in the ordinary course of the provision of such public health services, have otherwise been expenses met by an allocation from the Minister for Finance or another Minister of the Government.

(2) If the Fund is established, an applicant (other than an applicant falling within paragraph (e) of the definition of “connected person”) may give a direction in an application that any or all prescribed repayments arising from the application shall be paid into the Fund.

(3) Subject to section 9 (3), the Executive shall cause a direction referred to in subsection (2) to be complied with.

(4) The moneys of the Fund shall comprise—

(a) such prescribed repayments as are paid into the Fund pursuant to a direction referred to in subsection (2), and

(b) such other moneys that are accepted under subsection (11), constitute the proceeds of the sale or other disposal of land or other property accepted under that subsection, or constitute income received on, or the proceeds of the sale or other disposal of, investments made pursuant to subsection (12).

(5) Any prescribed repayment, or other moneys referred to in subsection (4)(b), that is or are paid into the Fund shall be disregarded for the purposes of Chapter 1 of Part VI of the Finance Act 1993 .

(6) Any prescribed repayment, or other moneys referred to in subsection (4)(b), that are paid into the Fund shall be treated as having been taken by a person as a benefit for public or charitable purposes and section 76 (2) of the Capital Acquisitions Tax Consolidation Act 2003 shall apply accordingly.

(7) The Executive shall submit an annual report on the operation of the Fund, and particulars of the accounts of the Fund, to the Minister not later than 6 months after the expiration of each calendar year (which, in the case of the first such report, means that part of the calendar year commencing on the date on which the Fund was established up to and including the 31 December next following that date).

(8) The Minister shall cause copies of a report referred to in subsection (7) to be laid before each House of the Oireachtas.

(9) The Fund shall consist of such accounts as the Minister, after consultation with the Minister for Finance, determines.

(10) Subject to section 18 in so far as that section relates to the Fund, the Executive shall keep the accounts of the Fund.

(11) The Executive may accept a gift of moneys, land or other property—

(a) if the gift is made for the benefit of the Fund,

(b) if the trusts and conditions attached to the gift are not inconsistent with the purposes referred to in subsection (1) or with paragraph (c), and

(c) if, in the case of land or other property, the Executive may, at its discretion, realise the value of the gift for the benefit of the Fund.

(12) The Executive may invest moneys standing to the credit of the Fund (other than such moneys for the time being required for the purpose of making payments out of the Fund pursuant to subsection (1)) with such financial institutions as are authorised by the Irish Financial Services Regulatory Authority established by section 33B of the Central Bank and Financial Services Authority of Ireland Act 2003 .

Records.

12 .— (1) The scheme administrator and, if different, the Executive, may each access and process any relevant records for the purposes of this Act.

(2) Subject to subsection (3), the scheme administrator and, if different, the Executive shall, as soon as is practicable after the commencement of this section, prepare and cause to be promulgated a code of practice to be complied with by a person accessing and processing any relevant records pursuant to subsection (1), or a person referred to in subsection (4) having any relevant information in the person’s possession, custody or control, in so far as the relevant records or relevant information, as the case may be, consist of personal data.

(3) The scheme administrator and, if different, the Executive shall not perform the function under subsection (2) except after consultation with the Data Protection Commissioner within the meaning of the Data Protection Acts 1988 and 2003.

(4) Subject to subsection (5) and section 14 , a person shall not disclose relevant information except for the purpose of the performance of a function by the person under this Act or the provision of services referred to in section 3 (1).

(5) A person may disclose relevant information to a member of the Garda Síochána if the person reasonably believes that the disclosure is necessary in order to prevent the continuance of an act constituting a crime.

(6) Documents that are prepared for the purpose of performing a function under this Act shall not constitute Departmental records within the meaning of section 2 (2) of the National Archives Act 1986 .

(7) The Executive shall determine the storage, retention or disposal of—

(a) applications (including any documents accompanying applications),

(b) documents referred to in subsection (6), and

(c) relevant records which are in the possession of, or under the control of, the scheme administrator and, if different, the Executive.

(8) The scheme administrator may request in writing a person to provide the scheme administrator with access to, or copies of, relevant records which—

(a) are in the possession of, or under the control of, the person, and

(b) will or may assist the scheme administrator to perform the scheme administrator’s functions under this Act.

(9) A person the subject of a request under subsection (8) shall comply with the request as soon as is practicable after the person receives the request.

(10) The Revenue Commissioners may request in writing the scheme administrator to provide them with such information in relation to prescribed repayments made to a person as will or may assist the Commissioners to perform their functions in relation to the assessment, charge, collection and recovery of any tax liabilities applicable to or in relation to the person (including, in the case of a deceased person, the estate of that person).

(11) The scheme administrator shall comply with a request under subsection (10) as soon as is practicable after the scheme administrator receives the request.

(12) In this section—

“ relevant information ”, in relation to a person referred to in subsection (4), means information that is provided under this Act to the scheme administrator, the Executive or a person appointed under section 16 (3) and obtained by the first-mentioned person in the course of the performance of a function of the person under this Act or in the provision of services referred to in section 3 (1);

“ relevant record ” means any record which will or may assist the scheme administrator to determine an application under section 6 .

Special account.

13 .— (1) There shall be set up, on the commencement of this section, a special account, to be funded from moneys provided by the Oireachtas, to be used to pay prescribed repayments and the costs of the Executive in administering this Act in so far as this Act relates to prescribed repayments and to the Executive’s establishment and management of the Fund, if any.

(2) Subject to subsection (3), the moneys in the special account may be used at any time but shall only be used for the purposes for which they were voted and shall be issued out of that account only by direction of the Minister for Finance.

(3) Any moneys, including interest (if any), in the special account may be paid into, or disposed of for the benefit of, the Exchequer in accordance with the directions of the Minister for Finance.

(4) In this section, “special account” means an account for the purposes of this Act in the joint names of the Executive and the Minister for Finance, which account shall—

(a) be an account with the Paymaster General, and

(b) be subject to such terms and conditions as the Minister for Finance, in consultation with the Minister, may determine.

Governance.

14 .— (1) The Minister may make a request in writing to—

(a) the Executive or the scheme administrator to be provided with a report—

(i) on the general administration of this Act, or on any particular aspect of the administration of this Act, as specified in the request, and

(ii) within such period or, in the case of a series of reports, within such periods, as is or are specified in the request, being a period or periods, as the case may be, reasonable in all the circumstances of the case,

(b) the Executive to be provided with a report—

(i) on the operation of patient’s private property accounts generally, on the operation of a class of such accounts, or on any particular aspect of the operation of such accounts or class of such accounts, as the case may be, as specified in the request, and

(ii) within such period or, in the case of a series of reports, within such periods, as is or are specified in the request, being a period or periods, as the case may be, reasonable in all the circumstances of the case.

(2) The Executive or the scheme administrator shall comply with a request made under subsection (1) of the Executive or the scheme administrator, as the case may be.

(3) The Minister may cause copies of a report provided to the Minister pursuant to a request made under subsection (1) to be laid before each House of the Oireachtas.

(4) The scheme administrator shall, in respect of every application not falling within section 5 >(2) or (3), keep a record of—

(a) the name, address, date of birth, date of death (if applicable), periods of full eligibility, and Personal Public Service Number, if any, of the relevant person concerned,

(b) if the applicant is not the relevant person concerned, the name, address and Personal Public Service Number, if any, of the applicant,

(c) the name of the hospital or other institution to which the application relates,

(d) the period for which the relevant person concerned was resident in that hospital or other institution,

(e) the amount of prescribed repayments made, or to be made, in respect of that application and, if that amount has not been paid, or will not be paid, to the relevant person concerned, the name and address of the person to whom the amount has been, or will be, as the case may be, paid, and

(f) particulars of how an amount falling within paragraph (e) was calculated.

(5) The Minister may make a request in writing to the scheme administrator to have access to or make copies of any material falling within paragraph (a), (b) or (c) of section 12 (7) or record kept under subsection (4).

(6) The scheme administrator shall comply with a request made under subsection (5) as soon as is practicable after the scheme administrator receives the request.

(7) The Minister may appoint in writing a person (who may be a public officer) to examine, and to report back to the Minister, on the operation of patients’ private property accounts generally, on the operation of a class of such accounts, or on any particular aspect of the operation of such accounts or class of such accounts, as the case may be, as specified in the appointment.

(8) The Executive shall provide a person appointed under subsection (7) with such assistance as the person may reasonably require to perform the examination specified in the appointment.

(9) Where any committee of either House of the Oireachtas requires the Chief Executive Officer of the Executive or a representative of the scheme administrator to give evidence before the committee in relation to the performance of any function under this Act, the Chief Executive Officer or representative, as the case may be, shall comply with that requirement.

Notification of certain decisions.

15 .— The scheme administrator shall, as soon as is practicable after making a decision under section 5 (2) or (3) or 6 (1)(a), (b) or (c), give the applicant concerned and the Executive if the Executive is not the scheme administrator—

(a) notice in writing of the decision and the reasons for the decision, and

(b) a copy of section 16 .

Appeals against certain decisions, etc.

16 .— (1) An aggrieved person may—

(a) appeal against a decision under section 5 (2) or 6 (1)(c) by giving notice in writing to the scheme administrator not later than 28 days after notice of the decision was given under section 15 ,

(b) appeal against a decision under section 6 (1)(a) or (b) by rejecting the prescribed repayment concerned and giving notice in writing to the scheme administrator of the rejection not later than 28 days after notice of the decision was given under section 15 .

(2) An appeal under subsection (1) shall—

(a) be in the specified form, and

(b) state the reasons for the appeal.

(3) The Minister shall appoint in writing a person or more than one person—

(a) who is a barrister or solicitor of not less than 5 years’ standing,

(b) to consider appeals under subsection (1), and

(c) subject to subsections (10)(a) and (11), on such terms and conditions as are specified in the appointment.

(4) The scheme administrator and, if different, the Executive shall each provide a person appointed pursuant to subsection (3) to consider an appeal under subsection (1) with such assistance and information as the person may reasonably require of the scheme administrator or Executive, as the case may be, in order to assist the person to determine the appeal.

(5) A person appointed pursuant to subsection (3) to consider an appeal under subsection (1) shall—

(a) be independent in the performance of the person’s functions under this Act as a person so appointed,

(b) subject to paragraph (a), comply with guidelines prepared and issued by the Minister in respect of the procedure to be followed with respect to the consideration of any appeal under subsection (1),

(c) consider any written or oral submissions made by or on behalf of the appellant, the scheme administrator and, if different, the Executive, in respect of the appeal,

(d) make a decision in writing determining the appeal as soon as is practicable in all the circumstances of the case, and

(e) send a copy of the decision to the appellant and the scheme administrator and, if different, the Executive together with the person’s reasons for the decision.

(6) A person affected by a decision under subsection (5)(d) may appeal to the High Court—

(a) on a point of law from the decision, and

(b) not later than 28 days after the appellant received a copy of the decision and the reasons for the decision pursuant to subsection (5)(e).

(7) A decision of the High Court following an appeal under subsection (6) shall, where appropriate, specify the period within which effect shall be given to the decision.

(8) The decision of the High Court on an appeal under subsection (6) shall be final and conclusive.

(9) The scheme administrator shall—

(a) if applicable, give effect to a decision under subsection (5)(d) as soon as is practicable after the period referred to in subsection (6) has elapsed without any appeal under subsection (6) having been made in respect of the decision,

(b) if applicable, give effect to a decision of the High Court on an appeal under subsection (6)

(i) within the period, if any, specified in the decision,

(ii) if subparagraph (i) is not applicable, as soon as is practicable.

(10) A person appointed pursuant to subsection (3)

(a) shall be paid such remuneration and allowances as the Minister, with the consent of the Minister for Finance, determines,

(b) may be provided with such staff, paid at such remuneration, as the Minister, with the consent of the Minister for Finance, determines as reasonably necessary to enable the person to perform the functions under this Act as a person so appointed, and

(c) may resign from the appointment by notice in writing given to the Minister.

(11) The Minister may revoke the appointment of a person appointed pursuant to subsection (3) for stated reasons.

(12) The Executive shall not pay a prescribed repayment required to be paid under this Act—

(a) until the period specified in subsection (1)(b) has expired without an appeal under that subsection having been made against the decision (“relevant decision”)under section 6 (1)(a) or (b) which gave rise to the repayment,

(b) if an appeal under subsection (1) against the relevant decision is made, until the scheme administrator is required to give effect to that decision referred to in subsection (9)(a) or (b) which relates to the appeal.

(13) A prescribed repayment shall be deemed to have been accepted for the purposes of this Act when it has been paid in accordance with subsection (12).

(14) Each person appointed under subsection (3) shall, at such intervals as are specified in writing by the Minister, submit a report in writing to the Minister in relation to the performance of the person’s functions under this Act as a person so appointed during the period to which the report relates.

(15) The Minister shall cause copies of a report submitted under subsection (14) to be laid before each House of the Oireachtas.

(16) In subsection (1), “ aggrieved person ”—

(a) in the case of any decision referred to in that subsection, means the applicant to whom the decision relates,

(b) in the case of a decision referred to in paragraph (b) of that subsection, includes the Executive if the Executive is not the scheme administrator.

Recovery of payment of prescribed repayment procured through fraud or misrepresentation, etc.

17 .— (1) Where it comes to the knowledge of the scheme administrator that—

(a) all or part of the payment of a prescribed repayment to a person has been procured through fraud or misrepresentation, or

(b) there has been an overpayment of a prescribed repayment to, or in respect of, a person,

then the scheme administrator shall make a report thereon to the Executive.

(2) Where it comes to the knowledge of the Executive (whether or not pursuant to a report under subsection (1)) that—

(a) all or part of the payment of a prescribed repayment to a person has been procured through fraud or misrepresentation, or

(b) there has been an overpayment of a prescribed repayment to, or in respect of, a person,

then the amount of that prescribed repayment so procured, or of that overpayment, as the case may be, shall be repayable to the Executive on demand and, if not so repaid, the Executive may recover the amount, as a simple contract debt in any court of competent jurisdiction, from the person to whom the prescribed repayment or overpayment, as the case may be, was made or the estate of thatperson.

Audit by Comptroller and Auditor General.

18 .— (1) The Comptroller and Auditor General shall be entitled to audit, for the purposes of this Act, the accounts of—

(a) the Executive,

(b) the scheme administrator,

(c) patients’ private property accounts,

(d) the Fund, if any,

(e) the special account within the meaning of section 13 , or

(f) any fund accrued, or operated or controlled by or for, or held in trust by or for, a Minister of the Government,

whether in each financial year, or such shorter period, as the Comptroller and Auditor General thinks fit in all the circumstances of the case.

(2) Accounts referred to in subsection (1) shall—

(a) be kept in such form as may be specified by the Minister after consultation with the Comptroller and Auditor General, and

(b) be submitted to the Comptroller and Auditor General for audit as soon as is practicable after the end of the financial year to which they relate but, in any case, not later than 6 months after the end of that year.

(3) A copy of the accounts referred to in subsection (1), as audited by the Comptroller and Auditor General under this section, shall be presented to the Minister as soon as is practicable after being so audited and the Minister shall cause copies of the accounts as so audited to be laid before each House of the Oireachtas.

(4) The Executive and the scheme administrator shall each provide the Comptroller and Auditor General with such assistance as the Comptroller and Auditor General may reasonably require to perform the Comptroller and Auditor General’s functions under this section.