Walford v Worcestershire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice McCombe,Lord Justice Moore-Bick |
| Judgment Date | 27 January 2015 |
| Neutral Citation | [2015] EWCA Civ 22 |
| Docket Number | Case No: C1/2014/0730 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 2015 |
[2015] EWCA Civ 22
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Queen's Bench Division, Administrative Court
Mr Justice Supperstone
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
(Vice President of the Court of Appeal, Civil Division)
Lord Justice McCombe
and
Lord Justice Underhill
Case No: C1/2014/0730
Stephen Knafler QC (instructed by Worcestershire County Council) for the Appellant
Fraser Campbell (instructed by Baker & McKenzie LLP) for the Respondent
Hearing date: 9 December 2014
INTRODUCTION
When a local authority provides residential accommodation in a care home for someone who is unable look after themselves ("the resident") it is entitled to recover the costs from them to the extent that they are able to pay. That involves an assessment of the value of the resident's assets; but the relevant Regulations provide that in performing that assessment the authority must 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" (I give the full terms of the provision below). The question raised by this appeal is whether that disregard applies only where the premises in question are so occupied at the date that the resident goes into care or whether it can be activated at some later date.
In the present case Mrs Walford, the Respondent's mother, went into permanent residential care provided by Worcestershire County Council, the Appellant, in November 2006. Up to that point she had lived in a house in Stourport-on-Severn called Sunnydene, of which she was the sole owner. The Respondent, who was at that date aged 67, was not living at Sunnydene but in a rented flat in London. But it is her case that she regarded, and regards, Sunnydene as her home: she has always kept a bedroom and an office there, many of her belongings are kept there, she intends to live there when she retires, and she has paid for the maintenance of the house and garden since her father's death in 1983. On that basis she claimed that she occupied Sunnydene as her home within the meaning of the Regulations. The Council initially accepted that claim and disregarded the value of Sunnydene in assessing Mrs Walford's ability to pay; but on 12 March 2012 it wrote to the Respondent saying that it had changed its mind and was proposing a retrospective re-assessment. The Respondent objected, and there was correspondence between the Council and her solicitors; but by letter dated 11 January 2013 the Council confirmed that it would be conducting a fresh assessment of Mrs Walford's ability to pay on the basis that the value of Sunnydene should be brought into account.
The Claimant brought proceedings for judicial review of the Council's decision. By judgment handed down on 10 February 2014 Supperstone J quashed the decision and remitted to the Council the question of whether the value of Sunnydene should be disregarded. I will return to his reasoning in due course.
This is the Council's appeal against that decision. It has been represented by Mr Stephen Knafler QC. The Respondent is represented by Mr Fraser Campbell. Mr Campbell appeared before Supperstone J but Mr Knafler did not. The Secretary of State for Health intervened as an interested party below but he has taken no part in this appeal.
THE STATUTORY PROVISIONS AND THE GUIDANCE
THE ACT
Section 21 (1) of the National Assistance Act 1948 provides, so far as material:
"(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;
(aa)-(b) …".
The Secretary of State has made directions making the provision of such accommodation mandatory in certain classes of case: see Circular LAC 93 (10).
The duty to recover the cost of accommodation provided under section 21, subject to the resident's ability to pay, is imposed by section 22, which reads:
"(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 therefor 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:
…
(4)-(4A) …
(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 subsection …
(5A)-(8A) …"
Section 26 permits local authorities to discharge their duties under section 21 by making arrangements for accommodation to be provided by third-party providers. In such a case an authority is under the same obligation to recover the cost from the resident as under section 22, subject to certain immaterial modifications: see sub-sections (2)-(4AA).
THE REGULATIONS
The regulations made under section 22 (5) of the 1948 Act are the National Assistance (Assessment of Resources) Regulations 1992 ("the Regulations"). Part III, which consists of regulations 20–28, is headed "Treatment of Capital". Regulation 20 read (as at the material date):
"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 £21,000."
Regulation 21 provides that:
"(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."
Schedule 4 duly specifies various kinds of capital which are to be disregarded. We are principally concerned with paragraph 2. 1 The material parts read as follows:
"(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.
(2) …
(3) In this paragraph a reference to a child shall be construed in accordance with section 1 of the Family Law Reform Act 1987."
"Partner" is defined in regulation 2 (1) by reference to its meaning in the Income Support (General) Regulations 1987: in summary, it means a spouse or civil partner or one of a couple living together as husband and wife or civil partners. The definition of "child" in the 1987 Act which is referred to at sub-paragraph (3) is concerned with such issues as legitimacy and adoption and not with age; but it was (eventually) common ground before us that the definition of "child" in section 64 of the 1948 Act, namely "a person under the age of sixteen", applies here. I will refer to a person falling within any of heads (i)-(iii) as a "specified family member".
Paragraph 18 provides for the disregard of "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". Though the disregard is mandatory in form, its effect is to give the local authority a discretion to disregard the value of property occupied by a third party who is not a specified family member.
Finally, I should note regulation 25, which is headed "Notional Capital". This provides that a resident "may be treated as possessing actual capital of which he has deprived himself for the purpose of decreasing the amount that he may be liable to pay for his accommodation".
THE POWER TO CREATE A CHARGE
A local authority has power under section 22 of the Health and Social Services and Social Security Adjudications Act 1983 to create a charge on land belonging to a resident in respect of unpaid liabilities under section 22 of the 1948 Act. We were told that in a case where a resident owns property which is not the subject of a disregard but has no significant income it is standard practice for authorities to take such a charge, though they may choose not to seek to enforce it forthwith.
THE GUIDANCE
Section 7 of the Local Authority Social Services Act 1970 provides that in the exercise of their social services functions, local authorities shall "act under the general guidance of the Secretary of State"....
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