Walford, R (On the Application Of) v Worchestershire County Council [2014] EWHC 234 (Admin)

[2014] EWHC 234 (Admin)Case No CO/2747/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 February 2014
Before
THE HONOURABLE MR JUSTICE SUPPERSTONE
Between
THE QUEENClaimanton the application of Miss GLEN WALFORDClaimantWORCESTERSHIRE COUNTY COUNCILDefendantSECRETARY OF STATE FOR HEALTHInterested Party
Fraser Campbell (instructed by Messrs Baker & McKenzie LLP) for ClaimantAdam Fullwood (instructed by Worcs CC Legal Dept) for DefendantEwan West (instructed by Treasury Solicitor) for Interested PartyHearing Hearing dates: 22-23 January 2014
JudgmentMr 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, posters and innumerable other chattels. … Miss Walford’s father died in 1981, since when Miss Walford has been the only person to contribute towards the maintenance and repair of Sunnydene, both before and since her mother was admitted to nursing home care. Ever since then she alone has paid for all repairs and maintenance including the complete refurbishment of the property which cost her in total, £42,500. … The fact that she has had to work away from home, in her profession, is not an unusual situation. Sunnydene is her base and always has been.”
[12]Following receipt of this letter the Defendant revisited its decision. On 17 May 2012 Ms Hitchman, the Defendant’s solicitor, wrote to the Claimant informing her that following an investigation the Defendant considered that the disregard should never have been applied. The letter refers to a visit by Council Officers to the Claimant at Sunnydene on 26 April 2012 and states that the Officers saw no evidence of the Claimant’s personal effects at the property, and that “The house appeared depersonalised with no photographs of family or friends”. The letter states that during the visit the Claimant “informed Officers that the renovation work was completed in January 2011 which is when she started to pay Council Tax. She advised that she had not occupied the property during these works which had been undertaken over some five years, at the very least and had stayed with neighbours and friends in the area. Taken together the Council considers that this is very cogent evidence to refute Miss Walford’s claim that she was actually occupying Sunnydene as her home at the relevant time when Mary Walford went into full time care at Astley Hall.” The letter continued:
“In the circumstances having weighed all the material facts in this case taking into account the representations as set out in your letter of the 27 March 2012, the fact that Miss Walford is aged over 60, together with the fact that she is an only child and has stated that she intends to retire to Sunnydene, the visit to Sunnydene, what Miss Walford told Officers in April 2012 and what she stated to be the case in her letter to Stan Goodin in January 2007 regarding the renovations and the fact that the property was inhabitable, the fact that Miss Walford has rented and occupied a flat in London since 1983, coupled with the independent factual evidence regarding Mrs Mary Walford’s single occupancy discount for Council Tax, and the award to her of Severe Disability Premium as part of her Pension Credit, together with confirmation as to who was registered on the Electoral Roll at Sunnydene leads the Council to conclude that Miss Glen Walford did not and has not occupied Sunnydene as her home during Mrs Mary Walford’s residence at Astley Hall so as to trigger the mandatory disregard in Paragraph 2(1)(b) of the 1992 Regulations. … The Council therefore reverses [its] two previous decisions and takes a fresh decision based [on] new evidence that has come to its attention during the course of this investigation that Mrs Mary Walford is liable for the full cost of her care from the 13th week following her admission until such time has her capital falls below the threshold for financial assistance from the Council. In this regard the Council intends to conduct a fresh financial assessment.”
[13]The Claimant’s solicitors wrote to the Defendant’s Principal Solicitor on 13 July 2012 making an official complaint and appeal against the Council’s decision. On 22 November 2012 the Claimant’s solicitors sent to the Defendant copy documentation which included the following:(1) communications in relation to the Claimant’s income tax affairs addressed to her at Sunnydene;(2) schedules giving details of contributions made by the Claimant for various expenditure carried out at the property over the years including the refurbishment;(3) statements from persons as to her occupation of Sunnydene; and(4) a batch of copy photographs highlighting some of the Claimant’s personal photographs, pictures, memorabilia, computers, books, work records and other items which were at the property when it was visited by the Council’s officers in April 2012.[14]On 21 December 2012 Ms Driscoll, the Defendant’s Head of Adult Social Care, wrote to the Claimant’s solicitors informing them that the complaint made on behalf of the Claimant had not been upheld. The letter enclosed a Report of the Investigating Officer, Miss Stockwell dated 29 November 2012. With regard to the complaint that the property should be disregarded, it is noted at paragraph 3.1 of the Report:
“The Benefits and Contributions Manager said the issue is whether Miss Walford was a resident at Sunnydene when her mother went into residential care in 2006. Under CRAG section 7, there is an automatic disregard but she does not accept that Miss Walford was permanently resident at the property at the time her mother entered long term care.”
Paragraph 3.4 states:
“The Benefits and Contributions Manager said that she appreciated that Miss Walford might view Sunnydene as her personal home, and want to inherit it, but that did not make it her permanent place of occupation. As to Miss Walford’s security of tenure on the property she rented, this had no bearing on taking Mrs Walford’s property into account. People may choose to rent or buy, but that is not a consideration under CRAG. Miss Walford had been in her rented accommodation since the 1980’s. The BAC team had done a thorough search with DWP and Council Tax, and everything suggested that Miss Walford was not a permanent resident at her mother’s house.”
[15]Miss Stockwell concluded (at para 3.17):
“Having viewed Mrs Walford’s case file, and the information taken into account by the Benefits and Contributions Team when deciding that the property of Sunnydene should be taken into account for the purpose of Mrs Walford’s financial assessment towards her care, I cannot see that their decision was perverse, or poorly reached. There is no evidence prior to Mrs Walford’s move into residential accommodation that Miss Walford was occupying the property as her home, and indeed the financial form that she completed did not indicate that there was any one resident at the property except the home owner, Mrs Walford. Further Mrs Walford’s benefit claims and council tax all pointed to her being a single occupant of the property.”
[16]On 11 January 2013 Mrs Sidhu, the Defendant’s solicitor, wrote to the Claimant’s solicitors:
“We write further to your recent correspondence and the outcome of both the complaint which was investigated by Ms B Stockwell… and the recent visit made by Denis Buckley and his colleague Miss Wendy Merrett of 8 November 2012. Please find attached a copy of that report which re-confirms the initial position of Worcestershire County Council that Sunnydene was not your client’s only or main home during the period when Mrs Walford was assessed and admitted to her present care home…”
The report in relation to the visit, prepared by Mr Buckley and dated 6 December 2012, concludes:
“From my thorough inspection of the above property and my discussion with Wendy Merrett, Benefits and Contributions Officer, we are of the opinion that this property is used as a ‘drop in’ as and when required and that it is not fully occupied.”
[17]Commenting on the Claimant’s solicitors’ letter of 22 November 2012 and the enclosures, Ms Paton stated in her witness statement:
“28. … I was asked to consider this additional evidence by Legal. I duly did but it did not persuade me to alter my opinion regarding not to apply the disregard for the following reason. Within the documents supplied were a number of receipts which may evidence that Miss Walford had expended money renovating the property but I did not consider that these in themselves were evidence to show that Miss Walford was actually occupying the Property. Further, the letters from the Revenue, whilst addressed to Miss Walford at the Sunnydene address did not convince me that Miss Walford was actually occupying the property as her home. I considered that Sunnydene was merely being used as a correspondence address. The other fact that I considered in this was that Miss Walford was representing herself to other agencies such as the Department for Work and Pensions as living in London, which she confirmed herself during the visit of 26 April 2012. 29. Also within the documents supplied by Miss Walford were a number of statements made by friends and neighbours which I duly considered. Although there is no doubt that Sunnydene is considered as Miss Walford’s family home and that she may have spent time there over the years when not working, I did not feel that this information was sufficient to conclude that Sunnydene was Miss Walford’s main residence. A number of the statements stated that Miss Walford visited her mother at Sunnydene regularly. This reinforced my view that Miss Walford was not at the time Mrs Mary Walford went into long term care occupying Sunnydene as her home, she was merely a visitor albeit perhaps a frequent visitor when her mother’s health had started to deteriorate. Other statements are at odds with the community care assessments that clearly indicated that Mrs Walford lived at Sunnydene alone. Whilst the friends and relatives may have had the impression that Miss Walford considered Sunnydene was her home, balanced against all the other independent evidence collected by the Council I concluded that Miss Walford was not occupying Sunnydene as her home at the relevant time.”
Legal framework National Assistance Act 1948

Legal framework

[18]Section 21(1) provides, so far as is 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;”
[19]Section 22 provides:
“(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 therefore 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: … (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 sub-section…”
[20]Section 45 provides that:
“(1) If, whether fraudulently or otherwise, any person misrepresents or fails to disclose any material fact, and in consequence of the misrepresentation or failure— (a) a local authority incur any expenditure under … Part III of this Act, or (b) any sum recoverable under this Act by … a local authority is not recovered, the authority shall be entitled to recover the amount thereof from the said person.” the authority shall be entitled to recover the amount thereof from the said person.”

The National Assistance (Assessment of Resources) Regulations 1992

[21]The material regulations are the National Assistance (Assessment of Resources) Regulations 1992 (“the Regulations”).[22]Regulation 20 provides:
“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 [£23,250].”
[23]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.”
[24]Paragraph 1 of Schedule 4 requires there to be disregarded “(1) in the case of a temporary resident who is not a prospective resident, the value of one dwelling (and not more than one dwelling) of a temporary resident from which he is absent in circumstances where—(a) he is taking reasonable steps to dispose of the dwelling in order that he may acquire another dwelling which he intends to occupy as his home; or(b) he intends to return to occupy that dwelling as his home and the dwelling to which he intends to return is still available to him.”[25]Paragraph 1A of Schedule 4 requires there to be disregarded “(1) in the case of a resident who becomes a permanent resident on or after 9 April 2001 (‘a qualifying resident’) in respect of the first period of permanent residence the value of any dwelling which he would otherwise normally occupy as his only or main residence (‘his home’) for a period of 12 weeks beginning with the day on which the first period of residence begins.”[26]Paragraph 2 of Schedule 4 requires there to be disregarded: “(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. (3) In this paragraph a reference to a child shall be construed in accordance with section 1 of the Family Law Reform Act 1987.” (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.[27]Paragraph 18 of Schedule 4 further provides for a disregard to be applied in respect 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.”

Charging for Residential Accommodation Guide

[28]The Secretary of State has published guidance under section 7 of the Local Authority Social Services Act 1970: the Charging for Residential Accommodation Guide (CRAG).[29]Section 7 (Treatment of Property) of CRAG provides, so far as is material:
“Property to be disregarded 7.002 The value of a dwelling normally occupied by a resident as his home should be ignored if his stay in a residential care or nursing home is temporary and • he intends to return to that dwelling, and the dwelling is still available to him; or • he is taking reasonable steps to dispose of the property in order to acquire another more suitable property for the resident to return to. Only one dwelling can be disregarded in these circumstances. N.B. If the resident’s stay is initially thought to be permanent but turns out to be only temporary the dwelling he normally occupies as his home should be treated in the same way as if he had been temporary from the outset. Schedule 4 paragraph 1 7.003 Where the resident no longer occupies a dwelling as his home, its value should still be disregarded where it is occupied in whole or in part by • the resident’s partner, former partner or civil partner (except where the resident is estranged or divorced from the partner, former partner or civil partner); • a lone parent who is the claimant’s estranged or divorced partner; • a relative (as defined at 7.004) of the resident or member of the resident’s family (as defined at 7.007) who - is aged 60 or over, or - is a child of the resident aged under 16, or - is incapacitated Schedule 4 paragraph 2.” • he intends to return to that dwelling, and the dwelling is still available to him; or • he is taking reasonable steps to dispose of the property in order to acquire another more suitable property for the resident to return to. • the resident’s partner, former partner or civil partner (except where the resident is estranged or divorced from the partner, former partner or civil partner); • a lone parent who is the claimant’s estranged or divorced partner; • a relative (as defined at 7.004) of the resident or member of the resident’s family (as defined at 7.007) who - is aged 60 or over, or - is a child of the resident aged under 16, or - is incapacitated Schedule 4 paragraph 2.”
[30]Sections 7.011-7.013 relate to Schedule 4 paragraph 18 where there is a discretion to disregard property. Section 7.011 states:
“Where the LA [local authority] considers it reasonable to do so, they can disregard the value of premises not covered in paragraph 7.002-7.008 in which a third party lives. LAs will have to balance the use of this discretion with the need to ensure that residents with assets are not maintained at public expense. It may be reasonable for example, to disregard a dwelling’s value where it is the sole residence of someone who has given up their own home in order to care for the resident, or someone who is an elderly companion of the resident, particularly if they have given up their own home. These are only examples and not exhaustive.”
Schedule 4 paragraph 18 Section 7.013 states:
“Where the LA [Local Authority] has decided to disregard the value of a property, it is left to the LA to decide if and when to review that decision”
.

The grounds of challenge

[31]There are two grounds of challenge: i) The decision was based on an incorrect interpretation and application of the legal test required by the relevant statutory provisions. The Defendant erred in law by equating the statutory test of whether the relevant property is “occupied in whole or in part [by the Claimant] as [her] home” with the question of whether it is her sole or main residence. ii) Further or alternatively the Defendant 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.

The submissions of the parties and discussion

(b) of Schedule 4 to the Regulations

[32]Paragraph 2(1)(b)(ii) of Schedule 4 to the Regulations requires that property be disregarded where it is “occupied in whole or in part as their home by the resident’s … family member or relative who is aged 60 or over”. Neither the Act nor the Regulations contains a definition of “home” for these purposes. It is common ground that a person may have more than one home. Mr Fraser Campbell, for the Claimant, agrees with Mr Ewan West, for the Secretary of State, that “home” should be given its normal meaning.[33]Mr Campbell submits that the normal meaning is apparent from an examination of the case law on the meaning of “home” in various different contexts. In Herbert v Byrne [1964] 1 WLR 519, a case concerned with whether a person was in personal occupation of a particular property to engage statutory protection under the Landlord and Tenant Act 1954, Lord Denning MR (at 526-527, citations omitted) stated:
“In order to be in personal occupation of a house it is not necessary that the tenant should be there himself with his family all the time. A sea captain may be away from his house for months at a time, but it is nonetheless his home; … Nor does it mean that to gain protection the tenant must have it as his only home. A man who has a home in the country may also have a home in London, spending a couple of nights there a week, and yet be protected in respect of it; … Nor does it mean that a man has no home if he is in the course of moving from one home to another. A man on the move may have a home in each place until the move is completed; … In this case it is clear that in December 1962 Byrne had a home at No. 42 New Cavendish Street. But he was in the course of moving to No. 37 Ifield Road, and it seems to me that he had also a home there. True, it was not so comfortable a home. He was pigging it there, as the judge said, but only pigging it until he could move in completely with his wife and family; and that is, I think, enough to make it his home so as to qualify him for the protection of the Rent Acts.”
Salmon LJ added (at 528):
“‘Home’ is a somewhat nebulous concept, incapable of precise definition. Nor would it be possible to obtain any measure of agreement between reasonable men as to the essential constituents of a real home. For example, uxorious persons might consider that a real home cannot exist without a wife and children; hardened bachelors might take an entirely opposite view. Some people might hold that there can be no real home without television; others that there can be none with it. It would be easy to multiply instances. In my view, if the evidence establishes, as it does here, a substantial degree of regular personal occupation by the tenant of an essentially residential nature, it will be difficult, if not impossible, for a court to hold that he was not in occupation of the premises as a home …”
[34]In the earlier case of Beck v Scholz [1953] 1 QB 570, also concerned with the Rent Acts legislation, Lord Evershed MR (at pages 575-576) described the question which the judge had to answer as “a jury question to be determined by applying ordinary common sense. The word ‘home’ itself is not easy of exact definition. But the question posed, and to be answered by ordinary common sense standards, is whether the particular premises are in the personal occupation of the tenant as the tenant’s ‘home’ or, if the tenant has more than one home, as one of his homes. Occupation merely as a convenience for such occasional visits… would not, I think, according to the common sense of the matter, be occupation as a ‘home’. ...”[35]Mr West criticised the Claimant’s reliance on those authorities on the basis they were concerned with the protections available under the Rent Restrictions Act where the question the court was required to determine was whether the Claimant was in personal occupation or possession, not whether relevant property was “his home”. However Mr West agreed with the observations of Lord Evershed MR in Beck v Scholz (see para 30 above) that the natural meaning of “home” is “a jury question to be determined by applying ordinary common sense”.[36]Paragraph 2(1)(b) of Schedule 4 involves consideration of two concepts, “occupation” and “home”, which, as Mr West observes, get elided. It was common ground between Mr West and Mr Campbell (from which Mr Adam Fullwood, on behalf of the Defendant, did not dissent) that “home” is a place to which a person has a degree of attachment both physical and emotional. It is also agreed that physical presence is neither necessary nor sufficient. What is important is the degree of occupation and the nature of the occupation. Ultimately whether a person occupies premises as their home is determined by a test which is both qualitative and quantitative.[37]Mr Campbell submits that paragraph 2(1)(b) of Schedule 4 is to be interpreted by reference to the natural meaning of the words used alone. However Mr West submits that given the particular context in which the word “home” is used and having regard to the underlying purpose of the legislation, Parliament cannot have intended that merely meeting the definition of a “home” is sufficient to trigger the disregard in paragraph 2(1)(b) of Schedule 4. He submits that the word “home” is to be read as “only or main home”. Mr Fullwood adopts the Secretary of State’s approach.[38]Mr West advances three reasons in support of the Secretary of State’s position: first, it is in line with the overall statutory purpose of the Act and the Regulations. Second, it is an interpretation which is consistent with the scheme of disregards. Third, the approach for which the Claimant contends would have consequences contrary to the statutory purpose.

The statutory purpose of the legislation

[39]In Bloomsbury International Ltd v Department for Environment, Food and Rural Affairs [2011] 1 WLR 1546 Lord Mance stated (at para 10):
“In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance. They represent the context in which individual words are to be understood. In this area as in the area of contractual construction, ‘the notion of words have a natural meaning’ is not always very helpful (Charter Reinsurance Co Ltd v Fagan [1997] AC 313, 391C, per Lord Hoffmann), and certainly not as a starting point, before identifying the legislative purpose and scheme.”
[40]Mr West submits that in the present case the starting point for analysis of the legislative purpose of the statutory provisions is section 22 of the Act. This section requires a local authority to recover from a person provided with accommodation under this Part of the Act the full cost to the authority of providing that accommodation, unless he satisfies the authority he is unable to pay at the standard rate when the authority shall assess his ability to pay and determine at what lower rate he shall be liable to pay for the accommodation.[41]The key principle, Mr West submits, at the heart of the 1992 Regulations is that the whole of a person’s capital should be taken into account in paying care home fees. That is the default position provided for by Regulation 21. The disregards in Schedule 4 are an exception to that basic position, and as such are to be strictly applied. If they were not then the fundamental purpose of Regulation 21 would be undermined. That approach, Mr West submits, is supported by the narrow classes of persons who can benefit from the disregard in paragraph 2(1)(b). The disregards in Schedule 4 are targeted at specific instances where taking capital into account would have an undesirable social consequence. Paragraph 2(1)(b) precludes taking premises into account where they are occupied in whole or in part as the home of certain defined classes.[42]As to the classes of person to be considered for the purposes of the disregard, it is submitted on behalf of the Secretary of State that the clear intention is to avoid making homeless certain family members who would be vulnerable if they had nowhere else to live. The classes of person in paragraph 2(1)(b) are not relatives widely defined, but rather the most immediate member (partner), relatives over a certain age or incapacitated, and children.[43]That approach, Mr West submits, is supported by the guidance in CRAG in relation to paragraph 18 of Schedule 4 which permits a property to be disregarded where it is still occupied by a third party who has given up his or her own home to care for the resident before they went into residential care.[44]Mr West submits that given the underlying statutory purpose of the Regulations, being to secure a resident’s capital for the purposes of defraying care home fees, it follows that the disregard cannot apply to any property that merely meets the normal definition of a home in relation to a member of the defined class of individuals, but must be construed as “only or main home”.[45]The Secretary of State accepts that interpretation of legislative provisions is a matter for the court. However as this is the first occasion that this particular issue has come before the courts Mr West invites the court to note the Secretary of State’s understanding of the Regulations. Mr Alan Probett, a Policy Adviser in the Department of Health working in the Social Care Policy Division states in his witness statement:
“11. Parliamentary questions asked of the Secretary of State in July 2005 and October 2008 make it abundantly clear that in the Secretary of State’s view, the disregard is to be read so as to apply to the property shared by that other person with the resident before the resident entered residential care. In that regard, I exhibit at AP1 the reply to a Parliamentary Question answered on 20 July 2005 and at AP2 the reply to Parliamentary Question answered on 14 October 2008. The latter refers specifically to the value of a resident’s property being disregarded ‘… where it continues to be occupied by the resident’s spouse, partner or other relative who is over 60… (emphasis added). 12. … The importance of this continued occupation is clearly spelt out in the reply to the first Parliamentary Question mentioned above. … 13. The Secretary of State’s approach is that the underlying presumption behind Schedule 4 of the Regulations is that any move away from the position where capital will be used to pay fees is something that is very much an exception and intended to be strictly applied. The restricted categories suggest it is only where there is a countervailing social need that a property will be disregarded. 14. A disregard is applied where a property is occupied in whole or in part as their home by the resident’s partner, other family member or a relative of the resident who is aged 60 or over or incapacitated, or a child of the resident who is under 16 years of age. In effect the disregard exists to avoid a vulnerable person becoming homeless where that person is the resident’s partner, an elderly or disabled relative of the resident, or a child of the resident. The disregard does not apply to relatives who are healthy and of working age who are, presumably, able to arrange new accommodation for themselves. Nor does it apply to divorced or estranged partners unless that person has a child to care for.”
[46]Mr Campbell submits that the gloss that the Secretary of State seeks to put on the relevant statutory phrase, “their home”, so that it should instead be read as “their only or main home” is unwarranted by the statutory wording and purpose of the Regulations. Mr Campbell makes four points in support of this submission. First, there is nothing to suggest that the various disregard provisions are to be construed in a particularly narrow way. Second, the provisions of paragraph 2(1)(b) of Schedule 4 are worded broadly. There is no basis for the asserted statutory purpose of avoiding homelessness. Paragraph 2(1)(b) will cover many situations in which no risk of homelessness exists. Third, the generosity of the exceptions is consistent with the fact that the entire premises must be disregarded and the breadth of the discretion under paragraph 18 of Schedule 4. Fourth, no assistance can be gained from the Secretary of State’s Ordinary Residence Guidance. That guidance relates to section 24 of the Act, a different statutory provision which employs a different statutory expression for a different statutory purpose.[47]I do not accept the first two points (see paras 48 and 49 below). The question as to how statutory exceptions should be construed requires examination of the underlying statutory purpose. The wording of paragraph 2(1)(b) of Schedule 4 is to be construed against the statutory purpose and context. Mr West accepts in relation to the issue of homelessness, there will always be an example such as the 65-year-old commercial QC living with his mother who would not be homeless if his mother moved into long term care. Mr West’s response to the third point is that these provisions simply reflect where Parliament has drawn the line in considering particular premises. Its focus is on the use of the premises. Again, he submits, the fourth point is misconceived. The Ordinary Residence Guidance is relevant to the determination of which local authority is responsible for resident’s care costs. It is because it is possible for a resident to have multiple homes that the need for determination of ordinary residence arises.

The scheme of disregards

[48]Mr West submits that the disregards in Schedule 4 are an exception to the basic position that the whole of a person’s capital should be taken into account in paying care home fees. That being so they should be strictly applied. They are targeted at specific instances where taking capital into account would have undesirable consequences.[49]In my view the terms of paragraph 2(1)(b) support that submission. They preclude taking premises into account when they are occupied in whole or in part as the home of certain defined classes. I do consider it significant that the classes of person in paragraph 2(1)(b) are not relatives as widely defined but rather the most immediate member (“partner”), relatives over a certain age or incapacitated and children. They are family members who would be most likely to be vulnerable if they have nowhere else to live. The Guidance in CRAG (at paras 7.011-7.013), in relation to paragraph 18 of Schedule 4 permits a property to be disregarded where it is still occupied by a third party who has given up his or her own home to care for the resident before they went into residential care supports this approach (see para 30 above).

Anomalies

[50]Mr West has, I think, highlighted an anomaly in the approach for which the Claimant contends. It would lead to a more generous test for relatives than residents. Regulation 21 provides that the whole of a resident’s capital is to be taken into account unless one of a specified category of disregards applies. Consequently where a resident owns two homes but neither is occupied as a home by any relevant family member both will be taken into account. However, on the Claimant’s case, if a resident owns only one home but that is also one of two or more homes occupied by a person of a class falling within paragraph 2(1)(b)(ii) the property is disregarded. That would be so even if the family member has a lesser connection with that property and would not be made homeless as a result.

Conclusion as to the proper test

[51]In my judgment “home” should be construed as “only or main home”. This interpretation, in my view, accords with the statutory purpose of the legislation. Home is a place to which a person has a degree of attachment both physical and emotional. The test as to whether a person occupies premises as their home is both qualitative and quantitative (see para 36 above).

Power to review a decision whether to disregard property

[52]Ms Paton concluded her witness statement (at para 34) as follows:
“I saw no evidence during my visit or subsequently as a result of the further visit to the property to alter my decision that only Mrs M Walford resided alone at Sunnydene prior to entering long term care.”
[53]Mr Fullwood confirmed that the Defendant had made no determination as to whether the Claimant occupied Sunnydene as her home at any time after her mother went into care on 24 November 2006. The reason, he said, for that was because the Defendant understood that the Regulations, and in particular the advice given in section 7.003 of CRAG, only permitted it to conduct a review of the original decision of whether or not to disregard property at the time of that the resident went into residential care. In this case the Defendant did so on the basis of what it described as “new evidence” (see para 12 above). It did not refer to section 45 of the Act (see para 20 above).[54]In my view there is no basis for limiting the power of review to the circumstances prevailing at the time of the original assessment. I accept the submissions made on behalf of the Secretary of State and the Claimant that a decision whether or not to disregard property can be reviewed whenever there is a change in circumstances. The opening words of section 7.003 of CRAG require the focus of the inquiry to be on the present, not the past, position.

The test applied by the Defendant

[55]In my view it is clear that the Defendant did not adopt what I consider to be the correct test (see para 51 above).[56]The reason for the decision not to disregard Sunnydene given by Mr Elliott in his letter of 12 March 2012 was that the Claimant was not “currently occupying the house and regarding it as [her] sole residence” (see para 10 above). Ms Paton states that that letter of 12 March 2012 reversing the decision not to disregard the property was sent on behalf of Mr Mallinson, Head of Legal and Democratic Services to the Claimant (see para 19 of her witness statement). The decision that it contained was made by Ms Paton, having conducted her review (see paras 9-17 of her witness statement).[57]It was also Ms Paton who considered the Claimant’s solicitor’s letter dated 22 November 2012 and the enclosed documents. She states (at para 28 of her witness statement) that they did not persuade her to alter her opinion because they did not show that the Claimant was “actually occupying the property as her home”. Miss Stockwell, the Investigating Officer, in her report dated 29 November 2012 records Ms Paton as saying that “the issue is whether Miss Walford was a resident at Sunnydene when her mother went into residential care in 2006”, and that “she does not accept that [the Claimant] was permanently resident at the property” at that time (para 3.1). Miss Stockwell (at para 3.4) further records Ms Paton as stating that the Claimant “might view Sunnydene as her personal home, and want to inherit it, but that did not make it her permanent place of occupation”. She said, “everything suggested that [the Claimant] was not a permanent resident at her mother’s house” (para 3.4).[58]The letter of 11 January 2013 states that the enclosed reports made following the visit of 8 November 2012 “re-confirms the initial position of Worcestershire County Council that Sunnydene was not [the Claimant’s] only or main home during the period when Mrs Walford was assessed and admitted to her present care home”. That letter uses the words “only or main home” (see para 16 above), however it is clear from the report that what the investigating officers were considering was whether the property was “fully occupied” or not. Ms Paton, the decision maker on behalf of the Defendant, concluded her witness statement (at para 34) by reference to the residence test. In her view the Claimant’s mother “resided alone” at Sunnydene prior to entering long term care.

Ground 2: failure to have regard to relevant considerations/having regard to irrelevant considerations

[59]Mr Campbell submits that the Defendant failed to take into account two relevant matters: first, that it did not properly consider the material presented to it enclosed with the Claimant’s solicitor’s letter of 22 November 2012. Second, it failed to conduct any comparative analysis of the character of the Claimant’s attachment to Sunnydene as opposed to the flat where she lives in London.[60]Ms Paton states that she did consider the letter of 22 November 2012 and the documents enclosed (see her witness statement at para 28). The decision letter of 11 January 2012 also refers to the Defendant having considered “the numerous statements presented on behalf of [the Claimant]”, which I take to include the signed statements enclosed with the letter of 22 November 2012. Mrs Sidhu, the Defendant’s solicitor, confirmed this in a letter dated 5 February 2013, but she added, “However we dispute the relevance of the evidence when it comes to considering the CRAG rules, which is what the local authority has observed throughout this process…”.[61]It appears the Defendant considered the material to be irrelevant for two reasons. First, because of the test applied by the Defendant, namely whether the Claimant was in physical occupation of the house and in permanent residence (see para 56-58 above). Second, as Mr Fullwood submitted, because of the Defendant’s understanding that the only relevance of the material was the light, if any, that it threw on the position that existed at the time the Claimant’s mother entered long term care in November 2006.[62]It follows that, in my view, there has been no proper consideration of the letter of 22 November 2012 and the enclosed documentation in relation to the review of the original decision, which focussed on the pre-24 November 2006 position, because the wrong test for determining whether the Claimant occupied Sunnydene as her home was applied. Further, there has, on the Defendant’s admission, been no consideration of the material for the purposes of determining whether the Claimant has occupied the house as her home at any time since her mother went into long term care.[63]As for the complaint that there was no comparative analysis of Sunnydene and the London flat, I accept Mr West’s submission that the correct test (“sole or main home”) does not require an investigation of all the homes occupied by persons falling within paragraph 2(1)(b) of Schedule 4. In many cases it will be clear on the evidence whether the property is the sole or main residence of that person. In some cases it may be appropriate to look at other properties.[64]In the present case the Defendant did not dispute the Claimant’s description of her accommodation in London as being a studio flat which she rented and in respect of which she had no security of tenure. There was no obligation on the Defendant to visit the flat or to carry out any further investigation into the Claimant’s occupation of it. A comparative analysis of Sunnydene and the London flat was not required.[65]Mr Campbell further submits that the Defendant took into account three irrelevant matters. First, statements which were made by the Claimant’s mother (or by the Claimant on her mother’s behalf) that she lived alone at Sunnydene. Second, the fact that for certain periods the Claimant was registered to vote in London. Third, the fact that, during their two site inspections, officers of the Defendant formed an impression that Sunnydene did not have a particularly personalised or “lived-in” appearance.[66]I accept Mr West’s submission that in determining the disregard the local authority is entitled to take into account all material which bears on the issue of whether a person who falls within paragraph 2(1)(b) of Schedule 4 occupies in whole or in part the resident’s premises as their sole or main home. This would in my view include, for example, where that person votes and pays council tax. Accordingly the Defendant did not take into account an irrelevant matter when considering that for certain periods the Claimant was registered to vote in London. The weight to be given to that factor was a matter for the Defendant, subject to any Wednesbury irrationality challenge, and there is no such challenge in the present case; nor is there a challenge to the Defendant’s refusal to exercise its discretion under paragraph 18 of Schedule 4 in favour of the Claimant.[67]Similarly the Defendant was entitled to take into account, on the same basis, the impression of its officers on the two inspections as to whether Sunnydene had a “lived in” appearance. It is not clear however, as Mr Campbell observes, as to how this evidence could assist the Defendant in determining what it was purporting to do, namely whether the Claimant occupied the house as her home in November 2006 prior to her mother going into long term care.[68]Further in my view the Defendant was plainly entitled to take into account the statements which her mother made (and which the Claimant made on her mother’s behalf) that her mother was living alone in the house. Mr Campbell suggested that it was understandable that when completing documents and providing information in relation to community care the Claimant’s mother (and the Claimant on her behalf) should have stated that she lived on her own. There is however no witness statement from the Claimant in these proceedings (other than one as to her limited financial means in support of a Protected Costs Order, which was granted), and there is no evidence from her to that effect. Again it was a matter for the Defendant to decide what weight to give to this evidence, subject to the operation of the Wednesbury principles.[69]However I accept Mr Campbell’s submission that statements, even if inaccurate, as to whether the Claimant’s mother was living alone prior to her entering long term care in November 2006 do not appear to be relevant to determining whether the Claimant has been occupying Sunnydene as her home at any time during the period after that date. That is a determination that is still to be made (see para 53-54 above). Summary[70]In my judgment i) the word “home” in paragraph 2(1)(b) of Schedule 4 to the Regulations is to be read as “only or main home”. “Home” is 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 (see para 51 above). ii) The decision of the Defendant was based on an incorrect interpretation and application of the legal test. The Defendant appears to have applied a test of actual occupation and/or permanent residence. (See paras 55-58 above). iii) The Defendant 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 Defendant has failed to consider whether the Claimant has occupied the house as her home since November 2006. (See paras 52-54 above). iv) The Defendant has failed to take into account relevant matters by failing properly to consider the evidence presented to it in the Claimant’s solicitor’s letter of 22 November 2012 and the enclosed documents (see para 62 above). However the Defendant was not obliged to conduct any comparative analysis of the character of the Claimant’s attachment to Sunnydene as opposed to her London flat (see para 63-64 above). v) The Defendant 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 (see paras 66-68 above).

Remedy

[71]The decision of the Defendant contained in the letter of 11 January 2013 is to be quashed.[72]The Claimant seeks a declaration that Sunnydene should be disregarded under paragraph 2(1)(b)(ii) of Schedule 4 to the Regulations. Mr Campbell urges the court to make a declaration (as opposed to remitting the matter to the Defendant for re-determination) on the basis that these proceedings raise a hard-edged question of objective fact (see R(A) v Croydon Borough Council [2009] 1 WLR 2557 at paras 26-29, per Baroness Hale, and paras 50-53, per Lord Hope). He submits that there is a right or wrong answer to the question whether the Claimant occupied or occupies Sunnydene as her home, as with the question whether a person is a “child”.[73]In my view the appropriate course in the light of the conclusions I have reached is for this matter to be remitted to the Defendant for re-determination in accordance with the terms of this judgment. In the ordinary way the review of a decision to disregard the value of a property is for the local authority. It is for the Defendant now to conduct that review, exercising its judgment as to the weight to be given to the relevant factors to be taken into account, having regard to the correct test to be applied. In reaching my decision on this issue I have also borne in mind that by reason of the incorrect view taken by the Defendant that the only review permitted is of the original decision to disregard made on an assessment of the position at the time the Claimant’s mother went into long term care, the Defendant has not as yet considered whether that decision should be reviewed on the basis of any changed circumstances since that time.

Conclusion

[74]In my judgment, for the reasons I have given, this claim succeeds. The decision of the Defendant will be quashed and the issue of whether Sunnydene should be disregarded in calculating the Claimant’s mother’s ability to pay care home charges remitted to the Defendant for re-determination.