Emotional ties

For the thousands of people in the UK who have loved ones in a care home and are coming to terms with the fees, Walford, R (on the application of) v Worcestershire County Council [2014] EWHC 234 would have been of interest.

While the issue of care home fees and eligibility is not new, this recent case is unprecedented. The court provided further guidance on the “eligible assets” rules, in schedule 4 of the National Assistance (Assessment of Resources) Regulations 1992, namely the criteria used when considering what assets can
be disregarded when assessing eligibility for fees.

It is now fairly common for local authorities to place a charge on an individual’s home, under the CRAG (Charging for Residential Accommodation Guide) rules, as a safeguard to ensure that their fees are paid.

However, this case challenged the council’s decision to include Mary Walford’s home in its assessment of her assets. Schedule 4 of the regulations stipulates that, for a property to be disregarded from the assessment, it must be wholly or partly occupied as their home by another family member or relative who is 60 or over. This rule is also supported by s7 of the CRAG rules.

It was the council’s case that Mary’s daughter, Glen Walford, who was now in her 70s but 67 at the time her mother entered the home, had used other properties as her home and therefore surrendered her occupational rights to this family home, using it only as a convenient place to stay or, at most, a holiday home.

Specifically, the court heard evidence that Glen rented a flat in London for work purposes and had previously rented properties both in the UK and abroad, where she travelled as part of her role as a theatre director.

However, while Glen admitted that she had rented other properties previously, she strongly refuted that these rental properties replaced her family home. It was Glen’s case that her mother’s house was her home and that she intended to live there when she retired. In support of this assumption, Glen had been maintaining a bedroom, an office, a caravan and shed at her mother’s house, at personal expense.

In addition, Glen confirmed that, following her father’s death in 1983, she resumed the responsibility of maintaining the house and garden, given that her mother’s only income was the basic state pension.

Mr Justice Supperstone concluded that when reviewing the meaning of “home” in the guidelines, it must be considered as a place to which a person has “a degree of attachment both physical and emotional”. He concluded that the council had erred in its assessment of these regulations as they applied an incorrect interpretation for this to mean actual occupation and/or permanent residence.

On this basis, the fact that Glen travelled with her work as a theatre director and rented various other properties had no bearing on the attachment she had to the family home and therefore the assessment was wrong.

Worcestershire County Council is unable to place a charging order on the home and has been told to reconsider the assessment. Glen has retained the family house as her home thereby excluding it as an eligible asset. Unsurprisingly, a council representative has indicated its intention to appeal.

This decision could have potential ramifications for other families and councils around the UK who have been using the same assessment criteria. Whether the precedent applies to all assessments or
is limited to relatives over 60 is yet to be decided.

Matthew Evans is a partner at Hugh James

He writes the regular vulnerable clients comment in Private Client Adviser