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Court of Appeal
Published: March 9, 2015
Regina (Walford) v Worcestershire County Council
Before Lord Justice Moore-Bick, Lord Justice Underhill and Lord Justice McCombe
Judgment January 27, 2015
When calculating the assets of a person going into residential care so as to assess her ability to contribute to the cost of that care, the value of her home would only be disregarded on the grounds that a qualifying family member was in occupation if that family member had been in occupation at the date when the resident went into care.
The Court of Appeal so stated (Lord Justice McCombe dissenting) when allowing the appeal of Worcestershire County Council against a decision of Mr Justice Supperstone ([2014] PTSR 968) which allowed the claim of Ms Glen Walford for judicial review of the council’s decision of January 11, 2013, to reconsider whether her mother’s house should be disregarded when calculating her mother’s ability to pay care home charges, pursuant to paragraph 2(1)(b) of Schedule 4 to the National Assistance (Assessment of Resources) Regulations 1992 (SI 1992 No 2977) as substituted by regulation 5 of the National Assistance (Sums for Personal Requirements and Assessment of Resources) Amendment (England) Regulations 2010 (SI 2010 No 211).
The claimant had kept a rented flat in London but had always regarded her mother’s house as her home and since 1983 had maintained the house and garden. In 2006 her mother entered long-term residential care at a care home managed by the council. The claimant, then aged 67, asked the council to disregard the house in calculating her mother’s ability to pay for her care on the basis that the claimant occupied it as her home.
The council initially accepted that claim but in March 2012 indicated that it was minded to retrospectively re-assess the matter and was inclined to reverse the decision
on the ground that the claimant had not been a permanent resident at the house at the time her mother had been assessed and admitted into care.
Mr Stephen Knafler, QC (who did not appear below) for the council; Mr Fraser Campbell for the claimant.
LORD JUSTICE UNDERHILL said that when new regulations made under the Care Act 2014, the Care and Support (Charging and Assessment of Resources) Regulations 2014 (2014 No 2672), came into force on April 1, 2015, the 1992 Regulations would cease to have effect. The new regulations dealt more explicitly with the issue which had arisen in the instant appeal but the correct construction of the 1992 Regulations was still likely to be material in a number of other cases.
Paragraph 2(1)(b)(ii) of Schedule 4 to the 1992 Regulations required that property be disregarded where it was “occupied in whole or in part as their home by the resident’s … family member or relative who is aged 60 or over”.
The secretary of state’ s purpose in providing for the disregard in question was that she wished 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.
If that was the purpose of the disregard, it seemed that, of its nature, it could only apply to persons who occupied the property in question at the time that the resident went into care, being the point at which the liability that threatened their occupation arose.
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Accordingly, it would be in keeping with the legislative purpose if paragraph 2(1) of Schedule 4 were to be read so that the scope of the disregard extended only to properties occupied by specified family members at the time that the resident first went into care. The statutory language was consistent with such a reading and did not require any words to be read in.
When the question of whether the disregard under paragraph 2(1)(b) applied in relation to the house was re-determined by the council it should consider the claimant’s claim to be occupying it as her home only as at the date when her mother first went into care.
Lord Justice Moore-Bick delivered a concurring judgment. Lord Justice McCombe delivered a dissenting judgment.
Solicitors: Head of Legal Services, Worcestershire County Council, Worcester; Baker & McKenzie LLP.