Council wins appeal over property disregard and care home charging

The Court of Appeal has – by a majority of two to one – upheld a council’s challenge to a ruling that it should disregard a property owned by the respondent’s mother in calculating the latter’s ability to pay care home fees.

The National Assistance (Assessment of Resources) Regulations 1992 state that, when calculating the costs it can recover, a local authority must disregard property owned by residents where it is occupied in whole or in part as their home by a relative of the resident who is aged 60 or over.

In Walford v Worcestershire County Council [2015] EWCA Civ 22 the respondent’s mother, Mrs Walford, went into permanent residential care provided by the council in November 2006.

Mrs Walford had lived in a property, ‘Sunnydene’ in Stourport-on-Severn, of which she was the sole owner.

The respondent, who was at that date aged 67, was not living at Sunnydene but in a rented flat in London. It was her case, however, that she regarded, and regards, Sunnydene as her home: she had always kept a bedroom and an office there, many of her belongings were kept there, she intended to live there when she retired, and she had paid for the maintenance of the house and garden since her father's death in 1983.

On that basis she claimed that she occupied Sunnydene as her home within the meaning of the Regulations.

Worcestershire initially accepted that claim and disregarded the value of Sunnydene in assessing Mrs Walford's ability to pay; but on 12 March 2012 it wrote to the respondent saying that it had changed its mind and was proposing a retrospective re-assessment.

An official complaint and appeal against the decision lodged by the daughter’s solicitors was not upheld by the council. It wrote to her to say that the local authority did not accept that she was “permanently resident at the property at the time her mother entered long term care”.

In the High Court Mr Justice Supperstone upheld the challenge. Amongst a range of findings, he concluded Worcestershire had erred in interpreting the Regulations as requiring it only to review the position that pertained at the time the mother went into long term care on 24 November 2006. 

The High Court judge quashed the defendant’s decision of 11 January 2013 and remitted the matter to the council for re-determination in accordance with the terms of his judgment.

In the Court of Appeal Lord Justice Underhill said the purpose of the legislative disregard was that the relevant Secretary of State wished to protect family members in specified classes from the risk of losing their homes as a result of the value of the property being into account.

“If that is the purpose of the disregard, it seems to me that, of its nature, it can only apply to persons who occupy the property in question at the time that the resident goes into care (being the point at which the liability that threatens their occupation arises),” he continued.

Lord Justice Underhill said that when the council redetermined whether the disregard applied to Sunnydene, it should consider the respondent’s claim to be occupying it as her home only as at the date when Mrs Walford went into care.

Agreeing, Lord Justice Moore-Bick said: “Insofar as the judge held that the date at which the occupation of the premises by a qualifying person falls to be judged could be a date later than that on which the resident went into accommodation, I think he was wrong.”

Lord Justice McCombe, dissenting, decided that the council’s case was inconsistent with the statutory language. The regulations said nothing express about the timeframe of the occupation and this had to be gathered from the statutory scheme as a whole.

He added that he agreed that, as a matter of policy, the Minister making such Regulations might want to specify only those in occupation at the date the resident goes into care (and that is what had been done in the new 2014 Regulations), but he did not see that the language of the Regulations with which the Court of Appeal was concerned compelled the identification of that purpose without the insertion of certain words.

Lord Justice McCombe decided that the council’s argument required an impermissible and unnecessary re-writing of the regulation. He would therefore have dismissed the appeal.

Stephen Knafler QC of Garden Court Chambers was instructed by Baljit Sidhu of Worcestershire County Council legal department.