Care home means testing – High Court challenge changes the game

The means testing of care home residents is governed by regulations that are unclear and hugely controversial. They were also legally untested until the recent High Court ruling in favour of the claimant in Walford v Worcestershire County Council.

According to the National Assistance (Assessment of Resources) Regulations 1992, in order for a care home resident’s own property to be disregarded during the means-testing process, it must be “…occupied in whole or in part as their home by the resident’s partner, other family member or relative who is aged 60 or over, is incapacitated or is a child”.

The claimant was 67 years old when her 91 year-old mother entered a care home in November 2006. The claimant argued that her mother’s property should be exempt from means-testing because she herself had always viewed the property as her own home. This was despite the fact that over the years she had lived in many different temporary homes around the UK because of her career. She specified that these other homes were always rented, not owned, and that she had always intended to live in her mother’s house when she retired.

Worcestershire County Council informed the claimant in 2011 that it had decided to disregard her mother’s property when assessing her ability to pay her care home fees, but reversed the decision following a review of the mother’s contribution towards the cost of her care. The claimant appealed but it was rejected on the grounds that there was no material evidence that that claimant was “permanently resident at the property at the time her mother entered long term care”. However, the Council had not analysed the situation with any of the other properties she periodically occupied during her career.

The final High-Court ruling in favour of the claimant mainly hinged on three points:

  • The definition of the word ‘home’ – which was to be read as “only or main home”, and “a place to which a person has a degree of attachment both physical and emotional”. The council, in making its decision, had erroneously applied a test of ‘actual occupation and/or permanent residence’.
  • The council’s failure to revisit the issue of the claimant’s occupancy and attachment to the property during its review of her mother’s contribution towards the cost of her care, which it was obliged to do. In other words, the council had not considered whether she had occupied the house since the initial assessment in November 2006.
  • The local authority failed to take into consideration certain relevant factors that the claimant had presented to it, including the fact that she had been the only person to contribute towards the maintenance and repair of the property for the previous 25 years – an outlay of around £42,500.

The ruling is significant where an individual going into care has children, aged over 60, who also claim their parent’s property as their own home.

1st May 2014

 

 

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