Council challenges property disregard rule

If you occupy a property owned by a relative who is being means-tested for care fees a recent Court of Appeal decision could have implications for both you and the property owner.

In Walford v Worcestershire County Council the daughter of a 91 year old who moved into a care home, argued that the property disregard rule should apply to her mother’s property when calculating her mother’s ability to pay the care home charges. The daughter claimed the property was also her home.

Regulations apply to situations where a person living in a care home owns a property that is occupied by their partner, or a child or other  relative or family member who is aged 60 or over or is incapacitated. Provided, that individual occupies the property as their permanent home, the property should be disregarded for means-testing purposes.

In the Walford case the daughter had a rented flat in London and was on the electoral roll there, but she also lived in her mother’s property and had taken responsibility for maintaining the house and garden for many years before her mother moved to a care home.

When assessing the mother’s ability to pay her care fees, the council was not willing to accept that the house was the daughter’s permanent home. The daughter took the matter through the council’s appeal process unsuccessfully. The case ultimately came before the Court of Appeal which gave its judgement in January 2015.

The Court of Appeal upheld the decision of the council that this was not a situation where the property disregard rule should apply and the mother’s property should be included in the means-testing calculations.

The basis for the decision

The Court of Appeal was asked to consider the question of whether the disregard rules applied only in situations where the relative of the person being assessed was actually occupying the property at the date when the care home resident was being assessed.

The court found that the regulations are intended to protect only relatives living at the property when the assessment is being undertaken. Unfortunately, for the daughter she wasn’t able to convince the council that she was permanently resident at the property when her mother was financially assessed, despite her claim that it was her work that had forced her to have temporary rented accommodation elsewhere and that she had always intended to live permanently at her mother’s house when she retired.

The court decided the council was correct to apply the disregard rule strictly to the situation as it was on the date of the means-testing assessment.

Why is the Walford case important?

The decision of the Court of Appeal will have implications for any situation where an individual in residential care is means tested and their property is also occupied by a relative or someone they regard as part of their family.

Unless that person can clearly demonstrate, not only that they come within the rigid criteria of the regulations, but that they are also permanently occupying the property at the date of the means-testing assessment, local authorities will be able to refuse to apply the disregard.

From 1 April 2015, the Care Act 2014 will come into force and the eligibility criteria that will apply will be that provided for by the Act. However, the Walford case is likely to continue to be relevant, particularly for people who are means-tested prior to the new regime being introduced.

Walford v Worcestershire County Council [2015] EWCA Civ 22

For help with appealing means-testing decisions call us on 0115 7722129