Nursing Homes Support Scheme Act 2009

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Ancillary State support to be charge against land.

17.— (1) In this section—

“authorised person” means a person authorised by the Board of the Executive for the purposes of—

(a) making orders under subsection (2),

(b) transmitting orders by electronic means to the Property Registration Authority in accordance with subsection (13),

(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, and

(d) performing functions which under this Act may be performed by authorised persons;

“interest in the relevant chargeable asset” means—

(a) the interest of the person in respect of whom ancillary State support is paid, and

(b) in the case of such a person who is a member of a couple, the interest of each member of the couple,

in the chargeable asset concerned;

“secured amount”, in relation to a chargeable asset, means the aggregate of all amounts advanced by the Executive (whether before or after the making of an order under subsection (2)) in respect of a person by way of ancillary State support adjusted in accordance with Schedule 2 together with interest thereon calculated in accordance with section 16 (15) and which amounts relate to the interest of that person or of that person’s partner, or of both of them, in that chargeable asset.

(2) (a) Where the Executive has received a request for payment of ancillary State support and the Executive is satisfied that it is appropriate that payment of such support be made, the Executive shall make an order in accordance with this section.

(b) The Executive shall not make a payment in respect of ancillary State support prior to the making of an order by the Executive charging the interest in the relevant chargeable asset with the secured amount.

(3) The Board of the Executive may appoint a person or persons who are employees of the Executive to make orders under subsection (2) 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 of the Health Act 2004 .

(4) An order made under subsection (2) shall be deemed to be a mortgage made by deed within the meaning of the Conveyancing Acts 1881 to 1911 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.

(5) The Executive shall from the date of the making of the order under subsection (2)—

(a) be deemed to be a mortgagee of the property for the purposes of the Conveyancing Acts 1881 to 1911, and

(b) have, in relation to the charge referred to in subsection (2), all the powers conferred by those Acts on mortgages made by deed.

(6) Where the Executive makes an order under subsection (2), it shall, as soon as practicable thereafter, cause the order to be registered in the Registry of Deeds or the Land Registry, as appropriate.

(7) An order made under subsection (2) 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.

(8) Any amount paid by way of ancillary State support, 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.

(9) For the avoidance of doubt, neither an order made under subsection (2) 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 .

(10) Subject to subsection (11), notwithstanding any rule of law or statutory provision, where a mortgage is created by reason of an order under subsection (2) 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 advances made by the Executive after the date of the subsequent mortgage whether the Executive did or did not have notice of such subsequent mortgage.

(11) Subsection (10) 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.

(12) A person who makes a request for payment of ancillary State support 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 (2) in the Land Registry or Registry of Deeds, and the Executive shall not be required to make a payment of ancillary State support where such assistance has not been given.

(13) (a) An order made under subsection (2) shall be in the form prescribed by regulations made under section 36 , and may be made—

(i) by an authorised person, and

(ii) in electronic form.

(b) Where an order is made in electronic form under this section, an authorised 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.

(14) Where an order under this section made in electronic form purports to have been made by an authorised 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.