Case law: Residential care fees capital disregard

Carmel Ferguson, solicitor with Housing Rights, looks at a UK Court of Appeal cases which considered whether the value of a care facility resident's home could be disregarded if the resident's child intended to return to live in it at a later date.

Disregarding assets in paying for residential care means test

When a local authority provides residential care services to someone it can, subject to certain provisions, recover the cost of these services from that person.  The authority or Trust will normally carry out an assessment to determine the value of the person’s assets. 

The regulations governing this assessment require that the authority disregard "the value of any premises … occupied in whole or in part as their home" by the resident's partner or child or "other family member or relative who is aged 60 or over or is incapacitated".

A recent UK Court of Appeal case, Walford v Worcestershire County Council [2015] EWCA Civ 22., looked at the issue of whether the value of a property can be disregarded if the resident’s child did not live in the property at the time she moved into a care facility but intended to live there in later years.

Can disregard be activated after resident enters care?

The case was brought by the daughter of a woman who owned her own home in Stourport-on-Severn.  Due to an illness the woman had to move into a residential care facility.  The daughter worked in London where she rented a flat, but claimed that she has always regarded her mother’s home as her home.  She kept an office and bedroom there, kept many belongings there, paid for maintenance on the property and intended to live there when she retired. The daughter claimed that she occupied the property as her home within the meaning of the regulations.

The council decided that the value of the family home should be taken in to account and the daughter brought a Judicial Review.  The Judicial Review upheld her case and referred the matter back to the council to consider whether the value of the home should be disregarded. The council appealed.

The Court of Appeal decided by a majority that the council should only consider the circumstances at the time that the resident is admitted into care.  Therefore, the disregard does not apply if the family member has another home at the time when the resident goes in to accommodation