Analysis
The claimant challenged the decision of Worcestershire County Council to uphold its reversal of a previous decision to disregard a property, (Sunnydene) owned by her mother (Mary) in calculating her mother’s ability to pay care home charges.
Mary had lived at and owned Sunnydene for many years. Mary entered long term care on 24 November 2006. Shortly thereafter the claimant was informed that the property would not be disregarded after the 12 week statutory period. The claimant responded and requested a disregard. The claimant is over 60. She explained that although, since 1983, she had maintained a small rented a flat in London, she had always maintained a bedroom, office, caravan, and shed for storage at Sunnydene and that she visited the property as often as she could; that she was absent from it for work reasons; that following her mother’s move into care she had taken the opportunity to have structural work done to the house which meant that she could not presently inhabit it and that it had always been her intention to retire to Sunnydene.
On 15 November 2006 the claimant was informed that the property would be disregarded. However, in correspondence on 8 March and 17 May 2012 the defendant’s solicitors explained that the decision had been reversed. An official complaint against this decision was not upheld.
The court heard two grounds of challenge to this decision:
- 1. The decision was based on an incorrect interpretation and application of applicable legal test. The defendant erred in law by equating the statutory test of whether the relevant property is occupied in whole or in part by the claimant as her home with the question of whether it is her sole or main residence; and
- 2. Further or alternatively the defendant reached its factual decision on the nature and extent of the claimant’s occupation of Sunnydene at material times without regard to relevant considerations and/or by having regard to irrelevant considerations.
The relevant legal framework comprises the power of the Secretary of State under the National Assistance Act 1948 to permit local authorities to provide residential care services; the power under s22 of the Act to recover from the person cared for the costs of doing so, which is to be done in accordance with the regulations made for the purpose by the Secretary of State under that section.
The material regulations are the National Assistance (Assessment of Resources) Regulations 1992. They contain regulations providing for a threshold of capital to be taken into account as well as for capital to be disregarded in certain circumstances. Under para 2 sch 4 (1)(b) and (1)(b)(ii) of the Regulations one of these circumstances is where premises are ‘occupied in whole or in part as their home by the resident’s family member or relative who is aged 60 or over and is incapacitated’.
The claimant submitted that previous case law on the meaning of ‘home’ in connection with the Rent Acts was of assistance to the court. The interested party submitted that those authorities concerned personal occupation, rather than the concept of ‘home’.
It was agreed between the claimant and the interested party that ‘home’ involves a degree of physical and emotional connection and that physical presence is neither necessary nor sufficient. However, what was important was the degree and nature of the ‘occupation’. The claimant submitted that the words be given their ordinary meaning. The interested party submitted that they should be construed with reference to the underlying purpose of the legislation and that therefore ‘home’ should be read as ‘only or main home’.
The claimant and the interested party submitted that the defendant had a power to review its decision by reference to the circumstances pertaining at the time of review, not only at those prevailing at the time when Mary went into residential care.
In relation to the second ground of appeal, the claimant submitted that in making its decision, defendant had not taken into account various evidence submitted to it and that secondly it failed to conduct any comparative analysis of the character of the claimant’s attachment to Sunnydene as opposed to the flat where she lives in London. Further, the claimant submitted that the defendant had considered three irrelevant matters in making its decision. The interested party submitted that it was entitled to take into account all material that bore on the relevant test.
Held:
- 1) The word ‘home’ in para 2(1)(b) of sch 4 to the Regulations is to be read as ‘only or main home’. ‘Home’ is a place to which a person has a degree of attachment both physical and emotional. Any determination of ‘home’ requires a quantitative and a quantitative assessment. This interpretation is in line with the purpose of the statute.
- 2) The decision on the defendant was based on an incorrect interpretation and application of the legal test. The defendant appeared to have applied a test of actual occupation and/or permanent residence.
- 3) The defendant erred in its interpretation of the Regulations as requiring it only to review the position that pertained at the time that Mary went into care. A decision as to whether or not to grant a disregard can be reviewed whenever there is a change of circumstances. The defendant failed to consider whether the claimant had occupied the house as her home since her mother went into residential care.
- 4) The defendant failed to take into account relevant matters by failing properly to consider the evidence presented to it by the claimant. However the defendant was not obliged to conduct any comparative analysis of the character of the claimant’s attachment to Sunnydene as opposed to that to her London flat.
- 5) The defendant did not take into account irrelevant matters when reaching the decision it did as to the position prior to the claimant’s mother going into long term care.
- 6) The original decision of the defendant was quashed. The issue of whether Sunnydene should be disregarded in calculating Mary’s ability to play care home charges was remitted to the defendant for the determination.