Residential care – Payment – Assessment of value of assets – Respondent’s mother going into full-time residential care provided by appellant council – Assessment of value of assets for purpose of determining ability to pay – Schedule 4 to National Assistance (Assessment of Resources) Regulations 1992 – Whether value of mother’s house to be disregarded as premises occupied by respondent as her home – Whether application of disregard to be assessed only at date when mother going into care or falling to be reviewed where change in circumstances – Appeal allowed
In November 2006, the respondent’s mother went into permanent residential care provided by the appellant council. Under section 22 of the National Assistance Act 1948 and the National Assistance (Assessment of Resources) Regulations 1992, the appellant was entitled to recover the costs of providing that accommodation to the extent that the respondent’s mother was able to pay, which involved an assessment of the value of her assets.
The respondent argued that, in performing that assessment, the appellants should disregard the value of her mother’s house in Stourport-on-Severn, pursuant to para 2(1) of Schedule 4 to the 1992 Regulations, as premises “occupied in whole or in part as the home of” the resident’s partner, child or another family member or relative who was aged 60 or over or was incapacitated. The respondent, who was 67 years old, argued that she occupied the house as her home even though she was living in a rented flat in London. She asserted that she regarded the house as her home and had always kept a bedroom and an office there, that many of her belongings were 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
The appellants initially accepted that claim and disregarded the value of the house in assessing the mother’s ability to pay. However, they later changed their minds and decided to conduct a fresh assessment taking the value of the house into account.
The respondent brought successful judicial review proceedings to quash that decision. The judge held that, contrary to the approach taken by the appellant, a person could in principle “occupy” a property as his or her home even if they did not live there all the time, or even the majority of the time. He further held that a decision whether or not to grant the disregard could be reviewed whenever there was a change of circumstances and that the appellants had therefore erred in determining the matter solely by reference to the position at the time when the respondent’s mother first went into long-term care, when they should have considered whether the respondent had occupied the house as her home since November 2006. The appellants appealed on the latter point only.
Held (McCombe LJ dissenting): The appeal was allowed.
The purpose of the secretary of state, as the maker of the 1992 Regulations, in providing for the disregard was to protect family members in the specified classes from the risk of losing their homes as a result of the value of the property being brought into account. That followed from the fact that the disregard was only attracted by occupation of the property by the specified classes of persons “as their home” and that those three classes shared the uniting feature of being persons who might reasonably be regarded as having a special interest in living, as family members, in a home belonging to the resident. Bringing the value of such a property into account would put the occupation of those persons at risk since, if the resident had no other income, it would typically lead to the creation of a charge in favour of the local authority. Although the authority might not choose to seek possession forthwith in every case, there would be nothing to prevent them from doing so.
In light of the purpose of the disregard, it could, by its very nature, apply only to persons who occupied the property in question at the time when the resident went into care, that being the point at which the liability that threatened their occupation arose. It was understandable that the secretary of state would wish to protect the positions of family members against losing their current homes, but there was no reason why she would be concerned about family members who might, at some point in the future, have the opportunity to make the property their home. Such a person might perhaps have a disappointed expectation if, when that opportunity arose, the property was subject to a charge securing increasing liabilities which might eventually lead to their being dispossessed, but that was fundamentally different from having their occupation of their existing home jeopardised. It was no part of the secretary of state’s purpose to protect the interests of family members who wished to occupy a resident’s property some time after he or she had gone into care.
In keeping with the legislative purpose, the scope of the disregard under para 2(1) of Schedule 4 should be read as extending only to properties occupied by specified family members at the time when the resident first went into care. The statutory language was consistent with that reading and it was not necessary to read any further words into it to achieve the legislative purpose.
Per curiam: Although the 1992 Regulations would cease to have effect in April 2015 when the Care and Support (Charging and Assessment of Resources) Regulations 2014 came into force, the correct construction of the 1992 Regulations was still likely to be material in a number of other cases.
Stephen Knafler QC (instructed by the legal department of Worcestershire County Council) appeared for the appellant; Fraser Campbell (instructed by Baker & McKenzie LLP) appeared for the respondent.
Sally Dobson, barrister
Read a transcript of R (on the application of Walford) v Worcestershire County Council here
