Walford v Worcestershire County Council

The capital disregard for premises occupied as a home by a specified family member applies where that occupation existed when the resident first entered residential care. A person who first occupies the premises later cannot activate the disregard.

The resident’s means remain subject to continuing review. An existing disregard may cease when the qualifying occupier dies or moves out, but the continuing assessment does not permit a new qualifying occupier to bring the premises within the disregard. The construction protects an existing family home from the financial consequences of the resident’s care, rather than a future opportunity to occupy the property.

Mrs Walford entered permanent residential care in November 2006. She owned Sunnydene, but her daughter, aged 67, lived in rented accommodation in London. The daughter nevertheless retained a bedroom and office at Sunnydene, kept belongings there, intended to live there on retirement, and paid for its maintenance.

The local authority initially disregarded Sunnydene’s value when assessing Mrs Walford’s ability to pay. It later decided to reassess the position and include the property’s value. Supperstone J quashed that decision and remitted the matter for reconsideration. The Council accepted that the daughter’s occupation could not be rejected merely because she was not permanently or actually resident there. The central issue was whether occupation had to be assessed when Mrs Walford entered care or could arise later.

By a majority, the appeal was allowed. Underhill LJ delivered the leading judgment and Moore-Bick LJ agreed. McCombe LJ dissented.

1. Statutory framework. Under section 22 of the National Assistance Act 1948, read with regulations 20 and 21 of the National Assistance (Assessment of Resources) Regulations 1992, a resident’s capital is assessed subject to the disregards in Schedule 4.
2. Purpose and date of assessment. The majority held that paragraph 2(1)(b) of Schedule 4 protects the existing home of a specified family member from the financial consequences of the resident’s entry into care. It does not protect someone who may later acquire an opportunity to make the premises their home. Accordingly, the qualifying occupation must exist when the resident first enters residential care.
3. Continuing review. The resident’s ability to pay is assessed from time to time, and an existing disregard may cease if the qualifying occupier dies or moves out. That continuing review does not allow a person who first occupies the premises later to activate the disregard. The use of the word occupied does not itself identify the relevant date, but the statutory language is consistent with the majority’s purposive construction and requires no added words.
4. Scope and discretion. The specified family member need not have shared the premises with the resident. In principle, the disregard may apply to premises where the resident permitted the family member to live. Separately, paragraph 18 of Schedule 4 gives the authority discretion to disregard premises occupied by a third party outside the mandatory classes, including a case where an age threshold was narrowly missed.
5. Dissent. McCombe LJ considered that the ordinary language required the status of the occupier to be assessed at each assessment date. He regarded the majority’s construction as impermissibly rewriting the regulation and would have dismissed the appeal.

The matter was to be redetermined by the Council on the basis that the daughter’s occupation was relevant only as at the date Mrs Walford first entered care.

• Court of Appeal (Civil Division): In [2015] EWCA Civ 22, the majority allowed the Council’s appeal.
• Queen’s Bench Division, Administrative Court: Supperstone J, in a judgment handed down on 10 February 2014, quashed the Council’s decision and remitted the issue for reconsideration.