R (Walford) v Worcestershire County Council and another [QBD]

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Supperstone
Judgment Date10 February 2014
Neutral Citation[2014] EWHC 234 (Admin)
Date10 February 2014
Docket NumberCase No: CO/2747/2013

[2014] EWHC 234 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr Justice Supperstone

Case No: CO/2747/2013

Between:
The Queen on the application of Miss Glen Walford
Claimant
and
Worcestershire County Council
Defendant

and

Secretary of State for Health
Interested Party

Fraser Campbell (instructed by Messrs Baker & McKenzie LLP) for the Claimant

Adam Fullwood (instructed by Worcs CC Legal Dept) for the Defendant

Ewan West (instructed by Treasury Solicitor) for the Interested Party

Mr Justice Supperstone

Introduction

1

Miss Glen 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.

2

Mrs 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.

3

The Claimant was 67 years of age when her mother entered the care home. She contends that the house should be disregarded because she occupies it as her home.

4

I am informed by counsel that this is the first occasion on which the courts have considered these particular legislative provisions.

Factual background

5

Mrs 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.

6

The Claimant responded, requesting that the property be disregarded. To that end she enclosed with her letter dated 25 January 2007 to Mr Stan Goodin, the Defendant's then Property, Income and Benefits Reviewing Officer a note setting out the history of Sunnydene and the Claimant's connection with the house.

7

The Claimant said in her note that her grandmother had taken possession of the house in the 1930's and it was rented to her mother and father from 1953. Under her grandmother's will the house passes to the Claimant on the death of her mother. The Claimant lived in the house with her parents as a child until she went to university and returned to the house during university vacations. After she graduated in 1962 she began a career in theatre. She still works internationally as a Theatre Director. Over the years she has made temporary homes in many places in the UK and abroad. However she has always regarded Sunnydene as her home. She says that "At Sunnydene, I have always maintained my bedroom; a downstairs office; a caravan and shed for storage and many of my belongings are housed there". When her father died in 1983 she took over complete maintenance of the house and garden as her mother at that time was only on the basic state pension. She continues:

"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."

8

There is no record of any response to the Claimant's letter from Mr Goodin. However Ms Paton, the Defendant's current Benefits and Contributions Manager, in her witness statement dated 25 July 2013 states (at para 8) that in September 2011 a review of the funding arrangements took place and the allocated social worker made contact with the Claimant. By e-mail dated 15 September 2011 Mr McAlinden informed the Claimant that there is a finance form in the Defendant's system, recorded in October 2010, which states the property is to be disregarded. On 15 November 2011 Mr McAlinden, who had communicated about the matter with his line manager, wrote to the Claimant:

"I can confirm to you that Worcestershire 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).

9

On 8 December 2011 Ms Paton became involved in the matter following a referral made to the Benefits and Contributions Team requesting a review of Mrs 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.

10

On 12 March 2012 Mr Elliott, a solicitor in the Defendant's legal department, wrote to the Claimant:

"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 of Worcestershire 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)…"

11

On 27 March 2012 solicitors for the Claimant replied to Mr Elliott stating that the Claimant was not simply "surprised" by the contents of his letter, but that she was "stunned and extremely upset by this reversal of the County Council's position". The letter continued:

"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,...

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