When councils are assessing means to pay for residential care, they must disregard property which is “occupied in whole or in part as their home” by a partner or child. This issue was examined recently in Walford v Worcestershire County Council [2015].
Walford v Worcestershire County Council
Case details
In 2006, Ms Walford’s mother, Mary, went into long-term residential care at a council-maintained home. The county council assessed her assets and her property was earmarked to help pay for her care. Ms Walford’s daughter disputed this decision, claiming that the property was her home as well as her mother Mary’s – despite Ms Walford keeping a rented flat in London.
Ms Walford, who was over 60, is an acclaimed theatre director who works all over the world. Ms Walford had lived elsewhere for periods of time but because of her work commitments she had never owned any property, always renting and regarding the places in which she resided as temporary accommodation.
Ms Walford had a bedroom, downstairs office, caravan and storage shed at her mother’s house and kept most of her belongings there. She had also paid for the maintenance of the house and garden since her father’s death in 1983. Under the rules governing the assessment of means for residential care, councils cannot consider property which is occupied by the resident’s partner or child.
Worcestershire County Council, which carried out the financial assessment, initially considered Ms Walford’s case and in November 2011 decided to disregard the property. However, the council then reversed the decision on review in March 2012, stating that in their view her mother’s house was more like a holiday home for Ms Walford and was not her home within the meaning of the legislation. Ms Walford appealed.
On appeal, the Court decided:
- Whether a property is a home depends on the degree and nature of occupation. As it is possible to have more than one home, for these purposes ‘home’ should mean someone’s only home or main home if they have more than one home.
- The council was entitled to take into account where a person was registered to vote and where they paid council tax.
- The council had been wrong to use a test of actual occupation and/or permanent residence and to concentrate on the position as it stood when Mrs Walford entered residential care. Whether the property should be disregarded should be reconsidered whenever there was a change in circumstances.
The Judge quashed the council’s decision, ordering them to reconsider the case and decide the issue using the correct criteria.
Worcestershire County Council then appealed and were successful, and Ms Walford therefore lost her right to retain the property.
Lord Justice Moore-Bick said:
“Although circumstances may subsequently arise in which a family member or child would like to make the resident’s house his or her home, there is an essential difference in the fact that the departure of the resident and the potential realisation of the premises to pay the cost of accommodation would not be an immediate cause of the loss of an existing home.
“Of course, it is possible to postulate circumstances in which a family member or relative aged over 60 might be in need of a house and might therefore wish to move into the house vacated by the resident, but the intrinsic distinction between the two cases provides a justification for treating them differently.”
The Judge added that the rules were not intended to create a “windfall benefit” for family members who moved into a house when someone went into care.
Comment
Clients need to be aware that when resources are being assessed to determine financial eligibility for care funding, they cannot guarantee that their home will be disregarded just because a family member considers it their home.
How can Nelsons help?
If you are in any doubt about this issue or are facing a challenge by the Local Authority about whether your home should be disregarded when calculating your means for care funding, please contact a member of our expert Wills, Trusts and Probate team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.