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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Walford, R (On the Application Of) v Worchestershire County Council [2014] EWHC 234 (Admin) (10 February 2014) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2014/234.html Cite as: [2014] EWHC 234 (Admin), [2014] WLR(D) 65, [2014] PTSR 968 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| THE QUEEN on the application of Miss GLEN WALFORD![]() |
Claimant |
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| - and - |
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WORCESTERSHIRE COUNTY COUNCIL |
Defendant |
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| - and - |
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| SECRETARY OF STATE FOR HEALTH |
Interested Party |
____________________
Adam Fullwood (instructed by Worcs
CC
Legal Dept) for the Defendant
Ewan West (instructed by Treasury Solicitor) for the Interested Party
Hearing dates: 22-23 January 2014
____________________
Crown Copyright ©
Mr Justice Supperstone :
Introduction
Walford
, the Claimant, challenges the decision of
Worcestershire
County Council, the Defendant, dated 11 January 2013 to uphold its reversal of a previous decision to disregard a property, Sunnydene, Astley Burf, Stourport-on-Severn ("Sunnydene"), owned by Mrs Mary
Walford
, the Claimant's elderly mother, in calculating her mother's ability to pay care home charges.
Walford
has been in a care home managed by the Defendant since November 2006. Under section 22 of the National Assistance Act 1948 ("the Act") the cost of providing such accommodation is recoverable from residents, subject to their ability to pay. In assessing ability to pay the Defendant must apply the National Assistance (Assessment of Resources) Regulations 1992 ("the Regulations"). The Regulations provide, inter alia, 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.
Factual background
Walford
entered long term care on 24 November 2006 after a period of hospitalisation following a fall and broken hip. By a letter dated 19 December 2006 the Claimant was informed that her mother had been provisionally assessed under the Regulations and that after the first 12 weeks of permanent residence the value of her property would not be disregarded.
"Although I visited as often as I could there were and are spells where I am away on theatre work. From approximately the year of my father's death, I began to maintain a small rented flat in London and since then have been registered in London for Council Tax although my Inland Revenue office is still in the Midlands…
…
For at least ten years I have known that the structure of the house was in need of serious repair but my mother's physical and mental state could not face any upheaval. When she was initially hospitalised I seized the opportunity to begin the dry-rot and all structural repairs as well as having a downstairs room converted to an en suite bedroom so that she would not have to endure stairs.
This renovation and conversion is now at half-way stage but it is becoming increasingly clear that my mother's lack of confidence and her frailty (she is nearly 92) means that she must stay in the Astley Hall Care Home.
It has always been my intention to retire to Sunnydene which is why I have only ever rented accommodation. At present, however, my finances mean I need to continue to work. While I am in the country I visit my mother often but during the renovations I have to stay with friends.
This is not a situation which can continue and I dearly wish to be able to keep a much-loved house in the family for my own continued use."
"I can confirm to you thatWorcestershire
County Council have decided that your property is to be disregarded in your mother's financial assessment…
I apologise that this decision has taken so long to be made and communicated to you."
Ms Paton states that the decision was based on the information that the Claimant had provided to Mr Goodin some years earlier (see para 8 of her witness statement).
Walford
's client contribution and querying the decision regarding the treatment of Sunnydene. At paragraphs 10-18 of her witness statement Ms Paton sets out the facts that she says she considered when making her decision not to disregard Sunnydene.
"We write with regard to the above property and the previous correspondence which you would have received from Shaun McAlinden, Social Worker, who corresponded with you on 15 November 2011.
Upon a further review of the initial decision which was made by Social Services, to disregard the above property in your mother's financial assessment,Worcestershire
County Council legal team were instructed to review this decision.
Worcestershire
County Council in exercising its powers under the Charging for Residential Accommodation Guidance, Section 7.002 have now made the decision to not disregard Sunnydene in calculating the capital of your mother, Mrs Mary
Walford
, for the purposes of a financial assessment and treatment of the … property as a capital asset.
We appreciate that you will clearly be surprised and indeed unprepared by this new position, but we are of the view that the initial decision which had been authorised and communicated to you via Shaun McAlinden was indeed incorrect. …
In your correspondence of 26 January 2007 to Mr Stan Goodin, you made it quite clear that when your father died in 1983, you had begun to maintain a small rented flat in London and since then have been registered in London for council tax. Although we accept that you have taken up the responsibility of maintaining Sunnydene, you have not by your behaviour, used Sunnydene as your permanent home but more as a holiday home which you stay at when visiting your mother at Astley Hall.

Worcestershire
County Council, upon reviewing Section 7 of the above guidelines, believes that this present arrangement does not allow Sunnydene to be disregarded from any financial assessment, as you are not deemed to be a resident of Sunnydene and should never have been regarded as such. Moreover whilst you may be over 60, the above property was never inhabited by you as your main home.
…
It is the view ofWorcestershire
County Council that your wish to retain ownership of Sunnydene does not equate to you currently occupying the house and regarding it as your sole residence. Therefore you cannot be deemed to be someone who is within the provisions of Section 7.003 of the CRAG guidelines.
Whilst we appreciate that you may be disappointed with our decision and may wish to consider taking independent legal advice, we will be moving forward in two weeks' time to place a statutory charge on the above property under the powers bestowed upon the Local Authority pursuant to section 22 of …(Health and Social Services and Social Security Adjudications Act 1983)…"
"Sunnydene is our client's home. She is a single lady with no partner or children. She uses all parts of the house and the vast majority of her personal belongings and chattels are situated there, including the bulk of her clothing, ornaments, furniture, books, videos, files, scripts, theatre work, two computers, her archives, posters and innumerable other chattels.
…
MissWalford
's father died in 1981, since when Miss
Walford
has been the only person to contribute towards the maintenance and repair of Sunnydene, both before and since her mother was admitted to nursing home care. Ever since then she alone has paid for all repairs and maintenance including the complete refurbishment of the property which cost her in total, £42,500.
…
The fact that she has had to work away from home, in her profession, is not an unusual situation. Sunnydene is her base and always has been."
"informed Officers that the renovation work was completed in January 2011 which is when she started to pay Council Tax. She advised that she had not occupied the property during these works which had been undertaken over some five years, at the very least and had stayed with neighbours and friends in the area. Taken together the Council considers that this is very cogent evidence to refute MissWalford
's claim that she was actually occupying Sunnydene as her home at the relevant time when Mary
Walford
went into full time care at Astley Hall."
The letter continued:
"In the circumstances having weighed all the material facts in this case taking into account the representations as set out in your letter of the 27 March 2012, the fact that MissWalford
is aged over 60, together with the fact that she is an only child and has stated that she intends to retire to Sunnydene, the visit to Sunnydene, what Miss
Walford
told Officers in April 2012 and what she stated to be the case in her letter to Stan Goodin in January 2007 regarding the renovations and the fact that the property was inhabitable, the fact that Miss
Walford
has rented and occupied a flat in London since 1983, coupled with the independent factual evidence regarding Mrs Mary
Walford
's single occupancy discount for Council Tax, and the award to her of Severe Disability Premium as part of her Pension Credit, together with confirmation as to who was registered on the Electoral Roll at Sunnydene leads the Council to conclude that Miss Glen
Walford
did not and has not occupied Sunnydene as her home during Mrs Mary
Walford
's residence at Astley Hall so as to trigger the mandatory disregard in Paragraph 2(1)(b) of the 1992 Regulations.
…
The Council therefore reverses [its] two previous decisions and takes a fresh decision based [on] new evidence that has come to its attention during the course of this investigation that Mrs MaryWalford
is liable for the full cost of her care from the 13th week following her admission until such time has her capital falls below the threshold for financial assistance from the Council. In this regard the Council intends to conduct a fresh financial assessment."
"The Benefits and Contributions Manager said the issue is whether MissWalford
was a resident at Sunnydene when her mother went into residential care in 2006. Under CRAG section 7, there is an automatic disregard but she does not accept that Miss
Walford
was permanently resident at the property at the time her mother entered long term care."
Paragraph 3.4 states:
"The Benefits and Contributions Manager said that she appreciated that MissWalford
might view Sunnydene as her personal home, and want to inherit it, but that did not make it her permanent place of occupation. As to Miss
Walford
's security of tenure on the property she rented, this had no bearing on taking Mrs
Walford
's property into account. People may choose to rent or buy, but that is not a consideration under CRAG. Miss
Walford
had been in her rented accommodation since the 1980's. The BAC team had done a thorough search with DWP and Council Tax, and everything suggested that Miss
Walford
was not a permanent resident at her mother's house."
"Having viewed MrsWalford
's case file, and the information taken into account by the Benefits and Contributions Team when deciding that the property of Sunnydene should be taken into account for the purpose of Mrs
Walford
's financial assessment towards her care, I cannot see that their decision was perverse, or poorly reached. There is no evidence prior to Mrs
Walford
's move into residential accommodation that Miss
Walford
was occupying the property as her home, and indeed the financial form that she completed did not indicate that there was any one resident at the property except the home owner, Mrs
Walford
. Further Mrs
Walford
's benefit claims and council tax all pointed to her being a single occupant of the property."
"We write further to your recent correspondence and the outcome of both the complaint which was investigated by Ms B Stockwell… and the recent visit made by Denis Buckley and his colleague Miss Wendy Merrett of 8 November 2012.
Please find attached a copy of that report which re-confirms the initial position ofWorcestershire
County Council that Sunnydene was not your client's only or main home during the period when Mrs
Walford
was assessed and admitted to her present care home…"
The report in relation to the visit, prepared by Mr Buckley and dated 6 December 2012, concludes:
"From my thorough inspection of the above property and my discussion with Wendy Merrett, Benefits and Contributions Officer, we are of the opinion that this property is used as a 'drop in' as and when required and that it is not fully occupied."
"28. … I was asked to consider this additional evidence by Legal. I duly did but it did not persuade me to alter my opinion regarding not to apply the disregard for the following reason. Within the documents supplied were a number of receipts which may evidence that MissWalford
had expended money renovating the property but I did not consider that these in themselves were evidence to show that Miss
Walford
was actually occupying the Property. Further, the letters from the Revenue, whilst addressed to Miss
Walford
at the Sunnydene address did not convince me that Miss
Walford
was actually occupying the property as her home. I considered that Sunnydene was merely being used as a correspondence address. The other fact that I considered in this was that Miss
Walford
was representing herself to other agencies such as the Department for Work and Pensions as living in London, which she confirmed herself during the visit of 26 April 2012.
29. Also within the documents supplied by MissWalford
were a number of statements made by friends and neighbours which I duly considered. Although there is no doubt that Sunnydene is considered as Miss
Walford
's family home and that she may have spent time there over the years when not working, I did not feel that this information was sufficient to conclude that Sunnydene was Miss
Walford
's main residence. A number of the statements stated that Miss
Walford
visited her mother at Sunnydene regularly. This reinforced my view that Miss
Walford
was not at the time Mrs Mary
Walford
went into long term care occupying Sunnydene as her home, she was merely a visitor albeit perhaps a frequent visitor when her mother's health had started to deteriorate. Other statements are at odds with the community care assessments that clearly indicated that Mrs
Walford
lived at Sunnydene alone. Whilst the friends and relatives may have had the impression that Miss
Walford
considered Sunnydene was her home, balanced against all the other independent evidence collected by the Council I concluded that Miss
Walford
was not occupying Sunnydene as her home at the relevant time."
Legal framework
National Assistance Act 1948
"(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing—
(a) residential accommodation for persons who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them;"
"(1) Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of this section.
(2) Subject to the following provisions of this section, the payment which a person is liable to make for any such accommodation shall be in accordance with a standard rate fixed for that accommodation by the authority managing the premises in which it is provided and that standard rate shall represent the full cost to the authority of providing that accommodation.
(3) Where a person for whom accommodation in premises managed by any local authority is provided, or proposed to be provided, under this Part of this Act satisfies the local authority that he is unable to pay therefore at the standard rate, the authority shall assess his ability to pay, and accordingly determine at what lower rate he shall be liable to pay for the accommodation:
…
(5) In assessing as aforesaid a person's ability to pay, a local authority shall give effect to regulations made by the Secretary of State for the purposes of this sub-section…"
"(1) If, whether fraudulently or otherwise, any person misrepresents or fails to disclose any material fact, and in consequence of the misrepresentation or failure—
(a) a local authority incur any expenditure under … Part III of this Act, or
(b) any sum recoverable under this Act by … a local authority is not recovered,
the authority shall be entitled to recover the amount thereof from the said person."
The National Assistance (Assessment of Resources) Regulations 1992
"No resident shall be assessed as unable to pay for his accommodation at the standard rate if his capital calculated in accordance with Regulation 21 exceeds [£23,250]."
"(1) The capital of a resident to be taken into account shall, subject to paragraph (2), be the whole of his capital calculated in accordance with this Part and any income treated as capital under Regulation 22.
(2) There shall be disregarded in the calculation of a resident's capital under paragraph (1) any capital, where applicable, specified in Schedule 4."
"(1) in the case of a temporary resident who is not a prospective resident, the value of one dwelling (and not more than one dwelling) of a temporary resident from which he is absent in circumstances where—
(a) he is taking reasonable steps to dispose of the dwelling in order that he may acquire another dwelling which he intends to occupy as his home; or
(b) he intends to return to occupy that dwelling as his home and the dwelling to which he intends to return is still available to him."
"(1) in the case of a resident who becomes a permanent resident on or after 9 April 2001 ('a qualifying resident') in respect of the first period of permanent residence the value of any dwelling which he would otherwise normally occupy as his only or main residence ('his home') for a period of 12 weeks beginning with the day on which the first period of residence begins."
"(1) The value of any premises—
(a) which would be disregarded under paragraph 2 or 4(b) of Schedule 10 to the Income Support Regulations (premises acquired for occupation, and premises occupied by a former partner); or
(b) occupied in whole or in part as their home by the resident's—
(i) partner,
(ii) other family member or relative who is aged 60 or over or is incapacitated, or
(iii) child.
(3) In this paragraph a reference to a child shall be construed in accordance with section 1 of the Family Law Reform Act 1987."
"The value of any premises occupied in whole or in part by a third party where the local authority consider it would be reasonable to disregard the value of those premises."
Charging for Residential Accommodation Guide
"Property to be disregarded
7.002 The value of a dwelling normally occupied by a resident as his home should be ignored if his stay in a residential care or nursing home is temporary and
- he intends to return to that dwelling, and the dwelling is still available to him; or
- he is taking reasonable steps to dispose of the property in order to acquire another more suitable property for the resident to return to.
Only one dwelling can be disregarded in these circumstances.
N.B. If the resident's stay is initially thought to be permanent but turns out to be only temporary the dwelling he normally occupies as his home should be treated in the same way as if he had been temporary from the outset. Schedule 4 paragraph 1
7.003 Where the resident no longer occupies a dwelling as his home, its value should still be disregarded where it is occupied in whole or in part by
- the resident's partner, former partner or civil partner (except where the resident is estranged or divorced from the partner, former partner or civil partner);
- a lone parent who is the claimant's estranged or divorced partner;
- a relative (as defined at 7.004) of the resident or member of the resident's family (as defined at 7.007) who
- is aged 60 or over, or
- is a child of the resident aged under 16, or
- is incapacitated Schedule 4 paragraph 2."
"Where the LA [local authority] considers it reasonable to do so, they can disregard the value of premises not covered in paragraph 7.002-7.008 in which a third party lives. LAs will have to balance the use of this discretion with the need to ensure that residents with assets are not maintained at public expense. It may be reasonable for example, to disregard a dwelling's value where it is the sole residence of someone who has given up their own home in order to care for the resident, or someone who is an elderly companion of the resident, particularly if they have given up their own home. These are only examples and not exhaustive." Schedule 4 paragraph 18
Section 7.013 states:
"Where the LA [Local Authority] has decided to disregard the value of a property, it is left to the LA to decide if and when to review that decision".
The grounds of challenge
i) The decision was based on an incorrect interpretation and application of the legal test required by the relevant statutory provisions. 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.
ii) 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 submissions of the parties and discussion
Ground 1: the proper construction of paragraph 2(1)(b) of Schedule 4 to the Regulations
v
Byrne [1964] 1 WLR 519, a case concerned with whether a person was in personal occupation of a particular property to engage statutory protection under the Landlord and Tenant Act 1954, Lord Denning MR (at 526-527, citations omitted) stated:
"In order to be in personal occupation of a house it is not necessary that the tenant should be there himself with his family all the time. A sea captain may be away from his house for months at a time, but it is nonetheless his home; … Nor does it mean that to gain protection the tenant must have it as his only home. A man who has a home in the country may also have a home in London, spending a couple of nights there a week, and yet be protected in respect of it; … Nor does it mean that a man has no home if he is in the course of moving from one home to another. A man on the move may have a home in each place until the move is completed; … In this case it is clear that in December 1962 Byrne had a home at No. 42 New Cavendish Street. But he was in the course of moving to No. 37 Ifield Road, and it seems to me that he had also a home there. True, it was not so comfortable a home. He was pigging it there, as the judge said, but only pigging it until he could move in completely with his wife and family; and that is, I think, enough to make it his home so as to qualify him for the protection of the Rent Acts."
Salmon LJ added (at 528):
"'Home' is a somewhat nebulous concept, incapable of precise definition. Nor would it be possible to obtain any measure of agreement between reasonable men as to the essential constituents of a real home. For example, uxorious persons might consider that a real home cannot exist without a wife and children; hardened bachelors might take an entirely opposite view. Some people might hold that there can be no real home without television; others that there can be none with it. It would be easy to multiply instances. In my view, if the evidence establishes, as it does here, a substantial degree of regular personal occupation by the tenant of an essentially residential nature, it will be difficult, if not impossible, for a court to hold that he was not in occupation of the premises as a home …"
v
Scholz [1953] 1 QB 570, also concerned with the Rent Acts legislation, Lord Evershed MR (at pages 575-576) described the question which the judge had to answer as
"a jury question to be determined by applying ordinary common sense. The word 'home' itself is not easy of exact definition. But the question posed, and to be answered by ordinary common sense standards, is whether the particular premises are in the personal occupation of the tenant as the tenant's 'home' or, if the tenant has more than one home, as one of his homes. Occupation merely as a convenience for such occasional visits… would not, I think, according to the common sense of the matter, be occupation as a 'home'. ..."
v
Scholz (see para 30 above) that the natural meaning of "home" is "a jury question to be determined by applying ordinary common sense".
The statutory purpose of the legislation
v
Department for Environment, Food and Rural Affairs [2011] 1 WLR 1546 Lord Mance stated (at para 10):
"In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance. They represent the context in which individual words are to be understood. In this area as in the area of contractual construction, 'the notion of words have a natural meaning' is not always very helpful (Charter Reinsurance Co Ltdv
Fagan [1997] AC 313, 391C, per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme."
"11. Parliamentary questions asked of the Secretary of State in July 2005 and October 2008 make it abundantly clear that in the Secretary of State's view, the disregard is to be read so as to apply to the property shared by that other person with the resident before the resident entered residential care. In that regard, I exhibit at AP1 the reply to a Parliamentary Question answered on 20 July 2005 and at AP2 the reply to Parliamentary Question answered on 14 October 2008. The latter refers specifically to the value of a resident's property being disregarded '… where it continues to be occupied by the resident's spouse, partner or other relative who is over 60… (emphasis added).
12. … The importance of this continued occupation is clearly spelt out in the reply to the first Parliamentary Question mentioned above. …
13. The Secretary of State's approach is that the underlying presumption behind Schedule 4 of the Regulations is that any move away from the position where capital will be used to pay fees is something that is very much an exception and intended to be strictly applied. The restricted categories suggest it is only where there is a countervailing social need that a property will be disregarded.
14. A disregard is applied where a property is occupied in whole or in part as their home by the resident's partner, other family member or a relative of the resident who is aged 60 or over or incapacitated, or a child of the resident who is under 16 years of age. In effect the disregard exists to avoid a vulnerable person becoming homeless where that person is the resident's partner, an elderly or disabled relative of the resident, or a child of the resident. The disregard does not apply to relatives who are healthy and of working age who are, presumably, able to arrange new accommodation for themselves. Nor does it apply to divorced or estranged partners unless that person has a child to care for."
The scheme of disregards
Anomalies
Conclusion as to the proper test
Power to review a decision whether to disregard property
"I saw no evidence during my visit or subsequently as a result of the further visit to the property to alter my decision that only Mrs MWalford
resided alone at Sunnydene prior to entering long term care."
The test applied by the Defendant
Walford
was a resident at Sunnydene when her mother went into residential care in 2006", and that "she does not accept that [the Claimant] was permanently resident at the property" at that time (para 3.1). Miss Stockwell (at para 3.4) further records Ms Paton as stating that the Claimant "might view Sunnydene as her personal home, and want to inherit it, but that did not make it her permanent place of occupation". She said, "everything suggested that [the Claimant] was not a permanent resident at her mother's house" (para 3.4).
Worcestershire
County Council that Sunnydene was not [the Claimant's] only or main home during the period when Mrs
Walford
was assessed and admitted to her present care home". That letter uses the words "only or main home" (see para 16 above), however it is clear from the report that what the investigating officers were considering was whether the property was "fully occupied" or not. Ms Paton, the decision maker on behalf of the Defendant, concluded her witness statement (at para 34) by reference to the residence test. In her view the Claimant's mother "resided alone" at Sunnydene prior to entering long term care.
Ground 2: failure to have regard to relevant considerations/having regard to irrelevant considerations
Summary
i) the word "home" in paragraph 2(1)(b) of Schedule 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 qualitative and a quantitative assessment (see para 51 above).
ii) The decision of the Defendant was based on an incorrect interpretation and application of the legal test. The Defendant appears to have applied a test of actual occupation and/or permanent residence. (See paras 55-58 above).
iii) The Defendant erred in interpreting the Regulations as requiring it only to review the position that pertained at the time the Claimant's mother went into long term care on 24 November 2006. A decision as to whether or not to grant a disregard can be reviewed whenever there is a change of circumstances. The Defendant has failed to consider whether the Claimant has occupied the house as her home since November 2006. (See paras 52-54 above).
iv) The Defendant has failed to take into account relevant matters by failing properly to consider the evidence presented to it in the Claimant's solicitor's letter of 22 November 2012 and the enclosed documents (see para 62 above). However the Defendant was not obliged to conduct any comparative analysis of the character of the Claimant's attachment to Sunnydene as opposed to her London flat (see para 63-64 above).
v
) 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 (see paras 66-68 above).
Remedy
v Croydon Borough Council [2009] 1 WLR 2557 at paras 26-29, per Baroness Hale, and paras 50-53, per Lord Hope). He submits that there is a right or wrong answer to the question whether the Claimant occupied or occupies Sunnydene as her home, as with the question whether a person is a "child".
Conclusion