Local Authorities have power to clear possessions of sick and elderly

Councils have power to clear possessions

My client is shocked that her elderly neighbour’s property has been cleared by the local authority whilst he is in hospital. She wonders if they have the legal right to do that and if the same thing could happen to her.

I explained to Mrs. Brown (not her real name) that her neighbour’s particular circumstances may have prompted this action by the local authority. He’s a widower living by himself without any close family. He’s been struggling to look after himself and became ill as a result which led to a stay in hospital.

Duty to protect possessions

Mrs. Brown was understandably concerned that her local council may have acted unlawfully. I told her about section 48 of the National Assistance Act 1948 which places a duty on local authorities to act to provide temporary protection to a person’s moveable property where there is a reasonable risk of loss or damage.

The local authority’s duty arises where:

• a person is admitted to hospital; or
• a person is admitted to accommodation provided under the Act.

The Care Act 2014 amended the National Assistance Act 1948 but councils continue to be able to enter premises where a person has been living to deal with any movable property. The power to clear possessions means councils can remove the owner’s furniture, jewellery, personal papers etc. This can be done in any way that is reasonable to prevent or reduce the risk of loss or damage.

What’s the problem?

The exercise of these powers by local councils can in some cases seem draconian. Mrs. Brown was worried her neighbour would return from hospital to an empty house. Councils should only use this power when no other suitable arrangements have been made or are being made to protect the person’s property.

Problems can arise if there isn’t adequate communication between the council and the individual. Sometimes possessions are disposed of instead of being put into storage. There may be an assumption that the person won’t be returning to live in their home after discharge from hospital. If the person does go home the result can be quite upsetting for the individual whose home has been entered by their council; not surprisingly use of the power can give rise to complaints.

Councils also have the power to recover reasonable expenses from the person whose possessions have been dealt with in this way. Some people feel insulted to receive a bill from their council where the power to clear possessions has been used to take their personal items.

Solution?

Your local authority would not need to exercise the power to clear possessions from your property if you make Lasting Powers of Attorney for Property and Financial Affairs. You can appoint an attorney to have authority to support you when decisions have to be made about your personal possessions and your property. Your attorney’s legal powers under a Lasting Power of Attorney for property and financial affairs override the s48 powers under the National Assistance Act 1948. In a Lasting Power of Attorney you can give guidance to your attorney and instructions about your possessions.

For advice on safeguarding vulnerable persons and other social care issues click here or call 0115 7722129

About the author:
Rosamund Evans is a solicitor and Trust and Estate Practitioner and Principal of niche law practice, Barker Evans Private Client Law. She is a full Professional member of Solicitors For The Elderly and is a member of the Society of Trust and Estate Practitioners.

Photo credit: Baijg / Foter.com / CC BY-ND