A woman who persuaded the court that a legal charge should not be taken over her mother’s Worcestershire home by the local council in order to pay her care home fees has lost in the Court of Appeal.

The woman’s elderly mother became a permanent resident in a care home in 2006. When she did so, her house was retained and her daughter, who works as a theatre director, kept a room and office in the house and also made use of the garden shed. Over the years, she has rented temporary accommodation in many places when working in the UK and abroad but intends to retire to the family home in due course and has spent considerable sums maintaining the house and garden over the years.

The Administrative Court had ruled that the property could not be sold, because the daughter was over 60 years old and shared it as a home with her mother.

Local authorities have the right to create a charge over land owned by a care home resident, and they will often do so. There is an exemption, however, where the ‘resident no longer occupies a dwelling as his home…[and] where it is occupied in whole or in part by…a relative…of the resident or member of the resident’s family… who is aged 60 or over’.

The case therefore ultimately turned on whether the daughter could be said to ‘occupy’ the property. The council claimed that the question of whether she occupied the property or not had to be determined at the date on which the mother went into care. The Court accepted this, Lord Justice Underhill commenting that the exemption ‘can only apply to persons who occupy the property in question at the time that the resident goes into care (being the point at which the liability that threatens their occupation arises)’.

The conclusion of the Court was that the daughter’s occupation of the property as her home had not commenced as at the date on which her mother went into care.

The decision of the Court was not unanimous, the dissenting judge considering that the council’s case would require ‘an impermissible and unnecessary’ re-writing of the law.

Lord Justice Moore-Bick, however, stated that the need to assess a resident’s capital over time ‘does not point in favour of the conclusion that at some time after the resident has gone into accommodation and the value of the premises have been included in an assessment of his capital, a qualifying person who has not previously occupied the premises as his or her home, may, with the resident’s consent, take up occupation for the first time and thereby cause them to be taken out of account. There is no reason why the legislature should have intended to create a windfall benefit of that kind.’

The Court therefore concluded that the property must be taken into account in the assessment of the mother’s capital and could thus be the subject of a charge.


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