Nursing Homes Support Scheme (Amendment) Act 2021
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Charge against interest in chargeable land | ||
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4. The Principal Act is amended by the insertion of the following section after section 14A (inserted by section 3 ): | ||
“14B. (1) Where— | ||
(a) paragraphs (a) and (b) of section 14C(1) apply in relation to a person (in this section referred to as the ‘relevant person’), | ||
(b) the Executive is satisfied that the conditions in paragraphs (a) to (f) of section 14C(4) have been met in respect of the relevant person in relation to a particular family asset, and | ||
(c) the relevant person or the partner of the relevant person or, in the case of a transferred asset, the family successor has an interest in the particular family asset, | ||
the Executive shall make an order in accordance with this section charging the interest in the chargeable land in respect of the particular family asset with the secured amount. | ||
(2) The Board of the Executive may appoint a person or persons who is or are employees of the Executive to make orders under subsection (1) and each such order shall be deemed to have been executed by the Executive under the seal of the Executive in compliance with paragraph 1 of Schedule 2 to the Health Act 2004 . | ||
(3) An order made under subsection (1) shall be deemed to be a legal mortgage under Part 10 of the Land and Conveyancing Law Reform Act 2009 in favour of the Executive for a charge of the secured amount and to have been executed at the time of the making of the order. | ||
(4) The Executive shall from the date of the making of the order under subsection (1)— | ||
(a) be deemed to be a mortgagee of the property for the purposes of Part 10 of the Land and Conveyancing Law Reform Act 2009 , and | ||
(b) have, in relation to the charge referred to in subsection (1), all the powers conferred by that Act on mortgagees under mortgages made by deed. | ||
(5) Where the Executive makes an order under subsection (1), it shall, as soon as practicable thereafter, cause the order to be registered in the Registry of Deeds or the Land Registry, as appropriate. | ||
(6) An order made under subsection (1) affecting an interest in land which is registered land within the meaning of the Registration of Title Act 1964 shall be registrable as a burden affecting such land whether the person named in such order as the owner of the land is or is not registered under that Act as the owner of such land, and the Property Registration Authority shall, on application being made to it, register such order affecting the land concerned. | ||
(7) Any amount paid by way of increase in State support by virtue of a determination under section 14C(2)(a) in respect of a relevant person and calculated in accordance with section 14D(3), whether or not it is the subject of a mortgage arising by reason of this section, may, without prejudice to any other power in that behalf, be recovered by the Executive as a simple contract debt in any court of competent jurisdiction. | ||
(8) For the avoidance of doubt, neither an order made under subsection (1) nor a mortgage that arises under it shall be regarded as a conveyance for the purposes of section 3 of the Family Home Protection Act 1976 or section 28 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 . | ||
(9) Subject to subsection (10), notwithstanding any rule of law or statutory provision, where a mortgage is created by reason of an order under subsection (1) and registered in the Registry of Deeds or the Land Registry as appropriate and a subsequent mortgage is created in favour of a party other than the Executive, the Executive is entitled to priority over any subsequent mortgage in respect of amounts paid by the Executive by way of increase in State support by virtue of a determination under section 14C(2) (a) in respect of a relevant person after the date of the subsequent mortgage whether the Executive did or did not have notice of such subsequent mortgage. | ||
(10) Subsection (9) does not apply as respects a subsequent mortgage where the Executive has consented in writing to such subsequent mortgage subject to any conditions specified in that consent. | ||
(11) The relevant person, his or her partner, the family successor and any other person who has an interest in the chargeable land shall have an obligation to give all reasonable assistance to the Executive as the Executive may request to facilitate the registration of an order under subsection (1) in the Land Registry or Registry of Deeds. | ||
(12) Where a relevant asset of the relevant person or of the relevant person’s partner ceases to be chargeable land for a reason not related to paragraph (b) of the definition of ‘chargeable land’ in subsection (18)— | ||
(a) (i) in the case of a relevant asset which is not a transferred asset, the relevant person (or the relevant person’s care representative, if any) or, if applicable, the relevant person’s partner (or the partner’s care representative, if any), or | ||
(ii) in the case of a relevant asset which is a transferred asset, the family successor, | ||
shall, as soon as is practicable after the occurrence of such cesser but, in any case, not later than 10 working days after the occurrence of such cesser, give notice in writing to the Executive of the cesser and the date on which it occurred, and | ||
(b) the Executive shall cease to make payments of such amount of increase in State support payable by virtue of a determination under section 14C(2)(a) in respect of the relevant person which relates to the former chargeable land as calculated in accordance with section 14D(3). | ||
(13) Where the relevant person or, as the case may be, the relevant person’s partner or the family successor transfers any part of an interest in the chargeable land that person shall give notice of such transfer to the Executive within 10 working days of the date of the transfer. | ||
(14) Amounts paid by way of increase in State support by virtue of a determination under section 14C(2)(a) in respect of a relevant person shall be deemed to have been paid to and for the benefit of the relevant person or, in the case of a person who is a member of a couple, to and for the benefit of both members of the couple or, in the case of a transferred asset, to and for the benefit of the family successor and any other person who has an interest in the transferred asset. | ||
(15) Where amounts are paid by way of increase in State support by virtue of a determination under section 14C(2)(a) which by reason of subsection (14) are deemed to have been advanced to both members of a couple, the liability of the members of the couple in relation to such advances shall be joint and several. | ||
(16) (a) An order made under subsection (1) shall be in the form prescribed by regulations made under section 36, and may be made— | ||
(i) by an appointed person, and | ||
(ii) in electronic form. | ||
(b) Where an order under subsection (1) is made in electronic form, an appointed person may transmit the order by electronic means to the Property Registration Authority for registration in the Land Registry, and the Property Registration Authority may effect registration of the order if— | ||
(i) it is lodged by electronic means in a manner approved by, and | ||
(ii) it complies with the requirements specified by, | ||
the Property Registration Authority. | ||
(17) Where an order under subsection (1) made in electronic form purports to have been made by an appointed person it shall be presumed by the Property Registration Authority that such electronic document was made and transmitted by the person by whom it purports to have been made and transmitted. | ||
(18) In this section— | ||
‘appointed person’ means a person appointed by the Board of the Executive for the purposes of— | ||
(a) making orders under subsection (1), | ||
(b) transmitting orders by electronic means to the Property Registration Authority in accordance with subsection (16), and | ||
(c) making an application to the Property Registration Authority for the cancellation of an entry of a charge on the register of the property charged where such charge relates to an order created under this section; | ||
‘chargeable land’ means an asset which is a relevant asset of the relevant person or of the partner of the relevant person, or of both of them, and which— | ||
(a) comprises or forms part of a particular family asset, | ||
(b) is an asset which is included in the computation of the assessed weekly means of a person, and | ||
(c) comprises an interest in land, which land is situated within the State; | ||
‘interest in the chargeable land’ means— | ||
(a) the interest of the relevant person, | ||
(b) in the case of a relevant person who is a member of a couple, the interest of each member of the couple, or | ||
(c) in the case of a transferred asset, the interest that the relevant person had or, in the case of a relevant person who is a member of a couple, the interest that each member of the couple had, | ||
in the chargeable land; | ||
‘secured amount’, in relation to chargeable land, means the aggregate of all amounts payable by way of increase in State support by virtue of a determination under section 14C(2)(a) in respect of a relevant person by the Executive (whether before or after the making of an order under subsection (1)) and calculated in accordance with section 14D(3) together with interest thereon calculated in accordance with section 14J(5) and which amounts relate to the interest in the chargeable land.”. |