Colette Browne: 'Fair Deal should mean exactly that for elderly people being forced to pay care fees they can't afford'
New guidelines to make nursing home contracts more transparent, and prevent charges being hidden from elderly people, are welcome - but do little to address the fairness of those top-up charges.
In 2017, an investigation by the 'Sunday Independent' revealed more than 300 nursing homes raised in excess of €16m per year in extra fees for social activities, games and therapies.
Age Action Ireland outlined the case of one man who said his mother was being charged a minimum of €4,474 in excess fees per year. These comprised: €50 per month for incontinence pads, €222 per month for social activities, €10 surcharge on three "free" chiropody visits per year and €100 per month for doctor services.
Under the Fair Deal scheme, this woman was paying 80pc of her income towards her care. Monthly charges of nearly €400 were an additional cost - and there was no way to opt out of paying them.
She is not alone. Age Action heard from people whose relatives were required to pay monthly contributions towards a doctor's service despite having a medical card. Those too frail and unwell to take part in activities like bingo or physiotherapy were still charged for those services.
Nursing homes, in response to public anger, blamed the Government for imposing these charges.
The Fair Deal scheme provides financial support towards nursing and personal care - bed and board, laundry service, basic aids and appliances - to assist people with daily living.
However, nursing homes are permitted to charge additional fees for certain services, some of which they may be required by law to provide by the Health Information and Quality Authority (Hiqa). The onerous nature of these charges can form a barrier to elderly people on low incomes entering a nursing home - undermining the entire purpose of Fair Deal, under which equity, affordability, need and choice are supposed to be paramount.
For instance, the average weekly income for applicants to the scheme in 2014 was €281. Out of that, they must pay €224.80, or 80pc of their income, for nursing home care, leaving a grand total of €56.20 in disposable income.
Now consider excess monthly charges of anywhere between €70 to €400 being applied - leaving elderly people, whom the State is supposed to be helping care for, in serious debt.
The Government, despite acknowledging the system needs reform, has been slow to act. A review of the scheme promised in 2017 has yet to materialise.
Last year, this newspaper revealed a lack of engagement by nursing homes with that review. Emails released under the Freedom of Information Act revealed that, over the course of nearly a year, the department's "additional charges project team" had written to 15 private nursing homes asking if it could visit.
In the event, just four such visits had been undertaken by August 2018, with one operator writing back to state information in relation to excess charges was "price sensitive".
It remains to be seen how the department can tackle the issue of these charges when basic information has been denied to it by nursing homes that have stonewalled the review process.
This lack of enthusiasm to co-operate was also evident in an investigation undertaken by the Competition and Consumer Protection Commission (CCPC) into unfair terms in nursing home contracts.
It requested information and copies of contracts from a representative sample of 10pc of nursing homes. Ultimately, just 36pc of this small sample responded to this voluntary request - a paltry figure indicating an unwillingness by operators to engage with the process.
Yesterday, the CCPC published guidelines nursing homes should adhere to when drafting their contracts for care to ensure they are in compliance with consumer protection law - specifically, that the contracts do not include unfair terms.
The purpose of the guidelines is to ensure there is greater transparency when contracts are entered into, typically at a time of great personal upheaval for residents who may be physically or mentally impaired, and that information in relation to fees, visitation and termination of contracts, among other things, is clear and intelligible.
In relation to fees, the CCPC states: "all fees should ideally be included in the upfront fee for the services to be provided.
"Where this is not possible, all fees, whether mandatory or optional, should be provided to any prospective resident. Where the additional fee is genuinely optional then this has to be communicated clearly to the resident and the resident should be afforded the opportunity to either agree or otherwise to availing of the service concerned."
While this level of clarity is helpful, it does nothing to tackle the issue of the level and extent of these fees, as that is outside the remit of the CCPC.
Once a nursing home has clearly indicated the level of fees in its contract of care, there is nothing in these guidelines to assist residents who feel they are excessive.
This means residents who cannot afford additional fees that are charged by private nursing homes may not be in a position to enter those homes, even if they are eligible for the Fair Deal scheme.
Further, while the guidelines have legal status, this status is essentially advisory in nature. They can be used by the courts when considering if a particular term is unfair or not, but there is no "blacklisted" term which can be pointed to as being unfair on its face.
Instead, the CCPC has published a "grey list" of some terms that may in certain circumstances be unfair.
It is also worth noting consumers do not have the ability to apply to courts for a declaration that a contractual term is unfair. That is the preserve of the CCPC, the Central Bank, ComReg and other consumer organisations.
Instead, since August 2015, complaints from or on behalf of nursing home residents have been dealt with by the Office of the Ombudsman.
In a report published in 2017, Ombudsman Peter Tyndall stated there should be "clarity, transparency and fairness around additional charges".
However, he pointedly noted "there are no benchmarks or guidelines in place generally against which additional charges can be set, for example the range and level of additional services to be provided and what could be considered to be a reasonable charge for such services".
Until benchmarks or guidelines of this nature exist, or until the Fair Deal scheme is expanded to include these charges, then these additional fees will have the capacity to continue to beggar elderly people who require long-term residential care.