R (on the application of Glen Walford) v Worcestershire County Council and Secretary of State for Health [2014] EWHC 234 (Admin)

The claimant (“G”) challenged the decision of Worcestershire County Council to uphold its reversal of a previous decision to disregard a property owned by the claimant’s elderly mother, Mary Walford, in calculating her ability to pay care home charges.

The claimant argued that the property should be disregarded because she occupied it as her home.  The National Assistance (Assessment of Resources) Regulations 1992 provide that property owned by residents should be disregarded where it is occupied in whole or in part as their home by a relative of the resident who is aged 60 or over.  The Claimant was 67 years of age when her mother entered the care home.

In 2011 Worcestershire County Council wrote to the claimant informing her that the property would be disregarded in calculating her mother’s capital.  The defendant then revisited its decision and concluded that the disregard should never have been applied. They based their conclusion on the fact that the claimant had stated that the property was uninhabitable during its renovation; the fact that the claimant had rented and occupied a flat in London since 1983; the independent factual evidence regarding Mary Walford’s single occupancy discount for Council Tax; the award to Mary Walford of a Severe Disability Premium as part of her Pension Credit; and confirmation as to who was registered on the Electoral Roll at the property.  The Council therefore reversed the two previous decisions.  Worcestershire County Council did not accept that the claimant was permanently resident at the property at the time her mother entered long term care.

The decision was challenged by the claimant on the ground that it was based on an incorrect interpretation and application of the legal test required by the relevant statutory provisions. The Defendant had 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 was her sole or main residence.  Further or alternatively the Defendant had reached its factual decision on the nature and extent of the Claimant’s occupation of the property at material times without regard to relevant considerations and/or by having regard to irrelevant considerations.

The court held that “home” should be construed as “only or main home”. This interpretation, in the court’s view, accorded with the statutory purpose of the legislation.  “Home” is a place to which a person has a degree of attachment, both physical and emotional. The test as to whether a person occupies premises as their home is both qualitative and quantitative.  “Home” is a place to which a person has a degree of attachment both physical and emotional. Physical presence was neither necessary nor sufficient.  What was important was the degree and nature of the occupation.  The court held that Worcestershire County Council had not applied the correct test.  Its decision had been based on an incorrect interpretation and application of the legal test.  It had applied the test of actual occupation and/or permanent residence.

It was held that the local authority had erred in interpreting the National Assistance (Assessment of Resources) Regulations 1992 as requiring it to only review the position that pertained when Mary Walford went into long term care.  There was no basis for limiting the power of review to the circumstances prevailing at the time of the original assessment.  A decision as to whether or not to grant a disregard could be reviewed whenever there was a change of circumstances.  The defendant failed to consider whether the claimant had occupied the house as her home since November 2006.

The court held that the defendant failed to take into account relevant matters by failing to consider the evidence presented to it in the claimant’s solicitor’s letter and the enclosed documents.  The defendant did not take into account irrelevant matters when reaching the decision as to the position prior to Mary Walford going into long term care.

The local authority’s decision was quashed and the issue of whether the property should be disregarded in calculating M’s ability to pay care home charges was remitted.

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