Charging Orders under the Nursing Homes Support Scheme Act 2009
1.1 Scope of Practice Direction Section 17(2) of the Nursing Homes Support Scheme Act 2009 provides for the registration of charging orders as burdens in favour of the Health Service Executive (HSE) where ancillary state support has been made available to persons in respect of long term residential care. “Ancillary State Support” means monies advanced by the HSE by way of a loan. This Practice Direction encompasses the procedures to be followed where an application is made in paper or electronic form for the registration or cancellation of such orders.
1.2. Sections of the Act and Rules applicable
- The Nursing Homes Support Scheme Act 2009 [the 2009 Act]
- Nursing Homes Support Scheme (Making and Discharge of Orders) Regulations 2009 [the 2009 regulations]
- Land Registration Rules 2012: Rule 3 S.I. 483/2012
- Land Registration (Fees) Order 2012 S.I. 380/2012
2. Registration of Charging Orders
2.1. General Nursing Homes Support Scheme Charging orders [NHSS orders] are made in Form 1 of the 2009 regulations. They may be made in electronic or paper form and must quote the relevant county and folio number and the name of the person(s) whose interest in the property is being charged. No query is to be raised if the name of the person(s) whose interest in the property is being charged is not the name of the registered owner(s) of the folio. A consent or declaration under the Family Home Protection Act 1976 is not to be called for. The fee payable for registering a NHSS charging order is €40 (Land Registration (Fees Order) 2012 S.I. no 380 of 2012). No check is to be made for payment of fees as this is dealt with by the Finance Unit. No query is to be raised in relation to stamp duty. An assent to the registration of the charging order is not required (see Rule 96(1)(d)(i) of the Land Registration Rules 2012). Where a charge in favour of a financial institution is lodged at the same time as the charging order, the financial institution charge may be registered first provided the consent of the HSE to such course has been lodged. Such consent may be indicated by way of covering letter. The date of registration is to be the date of lodgement of the order. The registration to be effected in respect of the charging order is as follows:
“Charge for such amount as may become payable under the terms of Instrument Number ….. The Health Service Executive is owner of this charge.”
2.2. Charging orders on part NHSS charging orders on part of a folio are made in Form 2, Schedule 1 of the 2009 Regulations. Where a portion of a folio is affected the usual Land Registry mapping requirements apply. In case of doubt the matter is to be passed to the Divisional Manager for direction. NHSS orders affecting a part of a folio must be made in paper form.
2.3. Processing applications for registration A dedicated unit will be nominated to process applications to register NHSS charging orders. Each application is to be checked to ensure that the HSE is the applicant requesting the registration. The application record is to be checked to ensure that it is complete and to ascertain if there are other dealings pending on the folio. Any such applications must be settled prior to the charging order. If the application is in order, the folio is to be settled. If the application is not in order, it is to be marked rejected and the rejection notice, stating the reason(s) for rejection is to issue to the Health Service Executive.
2.4. Electronic registration of charging orders Where a charging order is made in electronic form, the order may be transmitted by electronic means by the HSE to the Authority for registration. The Authority will effect registration of the electronic order if lodged in an approved manner and if it fully complies with the requirements specified by the Authority. Only applications in Form 1 of the Nursing Homes Support Scheme (Making and Discharge of Orders) Regulations 2009 may be made in electronic form, applications affecting a part of a folio must be made in paper form.
If the application is in order the relevant entry is to be entered on the register. If an application is not in order, it is to be marked rejected and the rejection notice, stating the reason(s) for rejection, is to issue by electronic means to the applicant. A completion notice will issue by electronic means. On re-lodgement of a rejected electronic application, it is deemed to be a new application and is to be processed accordingly.
3. Cancellation of Charging Orders
3.1. General A receipt issued under section 28(1) of the 2009 Act or an application under section 28(3) of the said Act for the cancellation of a NHSS order is made in Form 4, Schedule 2 of the 2009 regulations. The fee payable for registering a paper discharge of such order is €40. Partial discharges of NHSS orders or those discharges not containing a receipt must be lodged in paper form only.
3.2. Electronic cancellation of charging orders The procedures set out in the Practice Direction – eDischarges (Applications in electronic form for cancellation of charges) are to apply to the electronic cancellation of NHSS orders. The fee payable for registering the electronic cancellation of a NHSS order is nil (S.I. No. 380 of 2012). Only full discharges of NHSS orders containing a receipt issued under section 28(1) of the 2009 Act may be cancelled electronically.
Property Registration Authority.
5th July 2010
Updated 01 February 2013