The Dept. of Health has issued new Relative’s Property Disregard guidelines.
This is in response to a recent court case about means test guidelines for property: A daughter successfully stopped the value of her mother’s house being included in care fees means testing.
It means other people may now be able to stop their own family home having to be sold to pay for care.
Let’s assume for the moment that your mother or your father needs full time care in a care home and also owns a property.
Let’s also assume for the moment that your parent is not eligible for NHS Continuing Healthcare funding and that they have to pay for their own care.
Ordinarily, there are certain circumstances in which your parent’s property could be disregarded from means testing.
(By ‘disregarded’ we mean protected from being taken to pay care fees and disregarded under Para 2(b)(ii) of Schedule 4 to the National Assistance (Assessment of Resources) Regulations 1992. )
These circumstances include a situation where:
- your parent’s spouse or partner still lives at the property
- another relative over 60 lives there
- a younger relative still lives there who is incapacitated
- your parent’s former partner (divorced or estranged) still lives there and is a lone parent with a child under 18
- another of your parent’s children lives there and is under 18
- a relative over 60 lives there (or in some circumstances a friend who has been caring for your parent for some time and for whom the property has become their home)
- another person owns a share of the property and does not want to sell
However, there is now a new circumstance in which the property can be disregarded from means testing…
New means test guidelines for property – Relative’s Property Disregard guidelines
In February 2014, Glen Walford brought a case against Worcestershire County Council. She successfully argued that her family home should not be included in any means testing for her mother’s care costs.
The key issue was whether the property was Miss Walford’s main or only home. The High Court judgement concluded that a ‘home’ is a place to which a person has a degree of attachment both physical and emotional.
However, emotional attachment may not be enough on its own; the degree of occupation of the property by a relative is crucial, and yet this occupation does not have to be all the time.
For example, someone who travels a lot, or who is posted overseas as part of their job, but considers the property still their main home, and returns regularly where possible, could now claim the property is their main home, even if they rent other properties in the meantime.
Similarly, someone with a nomadic lifestyle who does not have their own home elsewhere and who considers the property somewhere they will eventually come back to, could also potentially argue that the property should be disregarded in means testing.
Essentially this means that ‘occupation’ is not the same as physical presence, i.e. you don’t have to actually physically live at the property all the time to ‘occupy’ the property.
These new Relative’s Property Disregard guidelines – new means test guidelines for property – also highlight that local authorities should take account of a family member’s changing circumstances in this respect.
Also, there is no need for a relative to have been occupying the property before the person needed care; the purpose of the move will be considered, and also to ensure that a family member does not become homeless if the property is included in means testing.
However, in all this there is of course one vital point to remember:
Issues of mean testing and property disregard are secondary to assessments for NHS Continuing Healthcare; where a person needs full time care on account of health needs, a Continuing Healthcare assessment should be carried out first, before the health and social care authorities ask any questions about a person’s money or property assets.
Since this article was originally published, Worcestershire County Council appealed the decision and, unfortunately for the family, the Council won. It means that the property can now be taken into account in means testing. The Court of Appeal decided that a relative must actually be resident at a property at the time a person goes into care in order for the property to be disregarded in the means test. This will come as a blow to many families in a similar position.