07 December 2018 - Article
The Court of Appeal in Walford v Worcestershire County Council  EWCA Civ 22 allowed the appeal of Worcestershire Country Council against the decision on 10 February 2014 of Supperstone J that the value of an elderly lady's house should be disregarded for the purposes of assessing her contribution to the costs of care because her daughter, aged 67, maintained a bedroom and an office at her mother's home in addition to the daughter having a permanent home in London. In assessing the ability of a person who is becoming resident in a care home to contribute towards the costs of their care, the Local Authority could at the relevant time in this case take into account all the assets of the resident.
Para 2 Schedule 4 National Assistance (Assessment of Resources) Regulations 1992 provided, however, that the value of premises occupied in whole or part as their home by a resident's child aged 60 or over should be disregarded. The daughter argued that, although she had a rented property in London, she had always regarded her mother's house as her home and had always kept a bedroom and an office there as well as many of her belongings and intended to live there upon her retirement. She had also paid for the maintenance of the house and garden since her father's death in 1983.
The judge found that the Local Authority was wrong in considering that the daughter had to be permanently resident in her mother's home to qualify as being in occupation and hence that the value of the house should be disregarded. Worcestershire appealed on the point as to when the test of occupation should be applied- they argued that the nature of the daughter's occupation had to be assessed at the date her mother went into care and that, at that time, the daughter was not in occupation. The Court of Appeal, by a majority, upheld the appeal, holding that the occupation test had to be applied at the point that the mother had gone into care. At that date, the daughter had not been in occupation.
The case is welcome clarification of the then current rules for Local Authorities. From 1 April 2015 regulations under Care Act 2014 have replaced the provisions of the 1992 regulations. Under the new rules, the occupation test for relatives will be applied at the time that the care home resident enters permanently into care.