Care home briefing 135 – When a house is not a ‘home’

Apparently for the first time, the National Assistance (Assessment of Resources) Regulations 1992 (‘the Regulations’) have been subject to judicial review in the High Court of Justice. In a widely reported decision made on 10 February 2014, Mr Justice Supperstone has held that Worcestershire County Council must think again and revisit its decision to take into account a house occupied by Mrs Mary Walford in connection with the fees payable by Mrs Walford who went into a care home after a fall in 2006.

The house, Sunnydene, was occupied by Mrs Walford and, when her assets were first assessed by the council, the house was not included as an ‘eligible asset’, so was not earmarked by the council to be used to pay Mrs Walford’s care home fees. However, the council subsequently revisited that decision and changed it following investigation into the circumstances of ownership and occupation of the property.

The evidence before the court was that since 1983 Mrs Walford’s daughter had maintained the house and, subsequent to her mother’s admission to the care home in late 2006, the daughter has spent about £42,500 to refurbish completely the property. Miss Walford had, throughout her life, regarded Sunnydene as ‘her home’.

It is well known that Regulation 20 of the Regulations provides that no resident is to be assessed as unable to pay for his or her accommodation at the standard rate if his or her capital (calculated in accordance with Regulation 21) exceeds £23,250. In assessing whether Sunnydene should be disregarded for the purpose of assessing Mrs Walford’s liability to pay her care home fees, the council had regard to the guidance published by the Secretary of State under section 7 of the Local Authority Social Services Act 1970. This guidance is called the Charging for Residential Accommodation Guide (‘CRAG’).

Section 7.003 of CRAG provides that ‘where the [care home] resident no longer occupies a dwelling as his home, its value should still be disregarded where it is occupied in whole or in part by … a relative … of the resident or member of the resident’s family … who is aged 60 or over …’. Further sub-sections of section 7 of CRAG give the local authority a discretion to disregard property.

The claim by Miss Walford put forward two grounds of challenge. The first was that the council had incorrectly interpreted and applied incorrectly the legal test required by the relevant statutory provisions. Miss Walford said that the council had muddled up the question of whether the property was ‘occupied in whole or in part by her as her home’ with the question of whether or not it was her sole or main residence.

The second ground of challenge was that the council had made its decision without taking into account relevant considerations and/or had taken into account irrelevant considerations.

The judgment discussed previous judicial definitions of the word ‘home’. The judge held that the word ‘home’ was to be construed as meaning ‘only or main home’. He said that, ‘Home is place to which a person has a degree of attachment both physical and emotional.’ He concluded that the council had not applied the right test in deciding whether or not Sunnydene was Miss Walford’s home, having regard to paragraph 2(1)(b) of Schedule 4 to the Regulations.

With regard to the second ground of challenge, the judge agreed with the claimant that the council had not properly considered her submissions made to the council in a letter of 22 November 2012. However, he accepted that the council was entitled to take into account certain other matters which they had considered when coming to their decision.

He did not consider that statements (even if inaccurate) as to whether the claimant’s mother was living alone prior to her entering long term care were relevant to determining whether the daughter had been occupying Sunnydene as her home at any time during the period after Mrs Walford went into long term care.

In the light of his findings, the judge quashed the decision of the council and ordered the matter to be remitted to the council for redetermination.

As is sometimes the way in judicial review cases, both sides took a degree of comfort from the judgment given. It appears that the judge accepted that the council had applied the correct test in defining ‘home’ as meaning ‘only or main home’. However, he did not accept that the council had exercised its power to review its first determination in an appropriate way. He held that a review of a determination could take place whenever there was a change in circumstances and was not limited to having regard to circumstances prevailing at the time of the original assessment.

Further, it presumably must have been significant that the daughter had always maintained her own room in Sunnydene so that she could say that she was a relative aged 60 or over occupying the property ‘in part’ as ‘her home’ pursuant to the Regulations.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.