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20.Feb.2014

Wide disparities exist in the rate of instructions to independent mental capacity advocates that cannot be explained by the different populations of local authority areas.

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17.Feb.2014

A claimant has successfully challenged a council’s decision to uphold its reversal of a previous decision to disregard a property owned by her mother in calculating the mother’s ability to pay care home fees.

The case of Walford, R (On the Application Of) v Worcestershire County Council [2014] EWHC 234 was the first time that the High Court had considered certain provisions in the National Assistance (Assessment of Resources) Regulations 1992.

These state 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.

The claimant, Miss Glen Walford, was 67 when her mother entered a care home in 2006. She argued that her mother’s property, ‘Sunnydene’ in Stourport-on-Severn, should be disregarded because she always regarded it as her home, even if she had made temporary homes in many places in the UK and abroad during her career as a theatre director.

Worcestershire wrote to the claimant in 2011 to say that the council had decided to disregard the property in her mother’s financial assessment.

However, this position changed in March 2012 following a review of Mrs Walford’s client contribution and a query over the treatment of ‘Sunnydene’.

An official complaint and appeal against the decision lodged by the claimant’s solicitors was not upheld by the council. It wrote to the claimant to say that the local authority did not accept that Miss Walford was “permanently resident at the property at the time her mother entered long term care”.

There were two grounds of challenge:

1. The decision was based on an incorrect interpretation and application of the legal test required by the relevant statutory provisions. Worcestershire had erred in law by equating the statutory test of whether the relevant property was "occupied in whole or in part [by the claimant] as [her] home" with the question of whether it was her sole or main residence.
2. Further or alternatively the defendant council reached its factual decision on the nature and extent of the claimant's occupation of Sunnydene at material times without regard to relevant considerations and/or by having regard to irrelevant considerations.

Mr Justice Supperstone upheld the challenge. The High Court judge found that:

1. The word 'home' in paragraph 2(1)(b) of Schedule 4 to the Regulations was to be read as 'only or main home'.'Home' was “a place to which a person has a degree of attachment both physical and emotional. Any determination of 'home' requires a qualitative and a quantitative assessment."
2. The decision of the council was based on an incorrect interpretation and application of the legal test. Worcestershire appeared to have applied a test of actual occupation and/or permanent residence.
3. The council erred in interpreting the Regulations as requiring it only to review the position that pertained at the time the claimant's mother went into long term care on 24 November 2006. A decision as to whether or not to grant a disregard can be reviewed whenever there is a change of circumstances. The council had failed to consider whether the claimant had occupied the house as her home since November 2006.
4. The council had failed to take into account relevant matters by failing properly to consider the evidence presented to it in a claimant's solicitor's letter of 22 November 2012 and the enclosed documents. However the council was not obliged to conduct any comparative analysis of the character of the claimant's attachment to Sunnydene as opposed to her London flat.
5. Worcestershire did not take into account irrelevant matters when reaching the decision it did as to the position prior to the claimant's mother going into long term care.

Mr Justice Supperstone quashed the defendant’s decision of 11 January 2013 and remitted the matter to the council for re-determination in accordance with the terms of his judgment.

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13.Feb.2014

The Court of Protection team at 39 Essex Street look at the Care Quality Commission’s report on the Deprivation of Liberty Safeguards for the year 2012/13.

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06.Feb.2014

The Court of Protection team at 39 Essex Street analyse an important decision on the approach to be adopted to the withholding of documentary material from a party to CoP proceedings.

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04.Feb.2014

The Government has put forward an amendment to the Care Bill that would give it the power to create a new system of appeals over councils’ decisions on social care.

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29.Jan.2014

The Local Government Ombudsman has sought to remind local authorities that “while they can contract out care for the elderly to private homes, they cannot contract out the responsibility”.