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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

19 MAR 2014

Walford v Worcestershire County Council [2014] EWHC 234 (Admin)

The correct test as to whether or not a place was a person's home was both a qualitative and quantitative test. Home should be interpreted as 'main home'.

10 February 2014

Administrative Court

Supperstone J

(1)        The Claimant, Miss Walford, challenged the Defendant's decision dated 11 January 2013 by which it upheld its reversal of an earlier decision to disregard a property owned by her mother (Mrs Walford) in calculating her mother's ability to pay care home charges. Pursuant to section 22 of the National Assistance Act 1948, the cost of Mrs Walford's accommodation and care was recoverable from her. The National Assistance (Assessment of Resources) Regulations 1992 (‘the Regulations') provide that property owned by residents should be disregarded where it is occupied by a relative of the resident who is aged 60 or over.

(2)        The Claimant contends that the property should be disregarded as she occupies it and she is 67 years of age. The Claimant pursued two grounds of challenge:

(a)        The decision not to disregard the property was the result of an incorrect application of the statutory legal test required. The Defendant erred in equating the test of whether the property was occupied by the Claimant with the question of whether it was her sole or main residence.

(b)        The Defendant failed to have regard to relevant considerations submitted by the Claimant in November 2012, and considered irrelevant factors in reaching its conclusion about the extent of the Claimant's occupation of the property.

(3)        Paragraph 2(1)(b) of Schedule 4 of the Regulations specified that the property might be disregarded where it was ‘occupied in whole or in part'. It was common ground between the parties that a person could have more than one home.

(4)        HELD: The power to disregard a property exists to avoid a vulnerable person being left homeless where that person is the relative of the resident homeowner. The Court held that paragraph 2(1)(b) of the Regulations supported the submission that disregards are the exception to the rule that a person's capital should be taken into account when paying care home fees, and as such, the disregards ought to be strictly applied.

(5)        There would be an overly generous test for relatives compared to residents if a relative was permitted to have the house disregarded despite having more than one home, but the resident would be required to have all homes taken owned taken into account.

(6)        The Court found that the term home should only be interpreted as ‘only or main home', and this accorded with the purpose of the legislation. Nonetheless, the Defendant had not applied the correct test. The correct test to be applied as to whether or not somewhere was a person's home was both qualitative and quantitative. The investigating officers had only considered whether the property was fully occupied or not, not whether the Claimant considered it her home.

(7)        There had been no proper consideration of the documentation sent by the Claimant in November 2012, nor whether or not the Claimant had been living in the property since her mother went into the care home. Further, there had not been any comparison between the property and the London residence.

(8)        The Court did not accept that irrelevant considerations had been taken into account.

(9)        The Court concluded that the Defendant erred in applying a test of actual occupation as opposed to whether the Claimant considered the property to be her main residence or home. The Defendant's decision was thus quashed. The case was remitted for a re-determination.

Claim succeeded.

Key paragraphs

[49] - Exception to the rule.

[50] - Overly generous.

[51] - Meaning of home.

[54] - Review.

[55] - Incorrect test.

[58] - Fully occupied.

[64] - No comparison required.

[68] - No Irrelevant considerations.

[70] - Conclusion.

[71-73] - Remedy.

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