We'd like to remind Forumites to please avoid political debate on the Forum... Read More »
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
Capital disregard & means testing
Options

saintalan
Posts: 562 Forumite

This applies to someone in a care home but it follows the Income Support Capital Disregard rules.
I am the relative of someone in care and I am over 60 and living in their property, according to the regs this should mean that the property is disregarded.
I do own a property which was my previous home but not any more and I had intended to rent it. It is little complicated as the property I am now in is jointly owned by wife and her mother (who is in care).
The LA are disputing the Capital Disregard but I can find nothing in the regs that means I shoild be means tested (property or otherwise). If any one has any info or can point me in the right direction I would appreciate it.
I can be more explicit if anyone can help.
Regards
Alan
I am the relative of someone in care and I am over 60 and living in their property, according to the regs this should mean that the property is disregarded.
I do own a property which was my previous home but not any more and I had intended to rent it. It is little complicated as the property I am now in is jointly owned by wife and her mother (who is in care).
The LA are disputing the Capital Disregard but I can find nothing in the regs that means I shoild be means tested (property or otherwise). If any one has any info or can point me in the right direction I would appreciate it.
I can be more explicit if anyone can help.
Regards
Alan
0
Comments
-
I think that the problem may lie in the fact that your wife is joint owner of the property that you live in.
If it was M-in-L's house outright there wouldn't be a problem.
Do go to your C.A.B. in your own area since they can help you with this.0 -
CRAG is quite clear on this - the disregard is for a family member over 60 living in the property. The argument is stronger if you were living with the person in care prior to the admission to care and were providing care to them. I've known a disregard where the son lived in mother's property and she lived in his. Her house was disregarded as an family member over 60 lived in it and her 'home' reverted to him when she vacated it!
Two other points - if you have a copy of CRAG* look at section 7 (paragraph 7.014) as there is also a discretionary disregard for a co-owned property. If your wife is a half owner, cannot/does not want to buy out your MIL and does not wish to sell, the property may be valued at nil. I know that this can be argued successfully. However, if they disregard on this basis the value of the property would be included in the assessment if the property was sold while your MIL is still in care. This is because it will no longer attract the disregard once it is cash.
Second point - why is your MIL in care? If she was discharged from hospital to care did they undertake a continuing care funding (CCF) assessment to decide if she qualify for NHS funding. This decision should ALWAYS precede any financial assessment for local authority funding. Social services often tell people that a person will pay for care as she has a house. This is wrong - without a CCF assessment the PCT/NHS has not fulfilled the obligations on hospital discharge.
CCF is payable to those whose primary need is for nursing care - the nursing need is more than ancillary or incidental to their social care needs.
*CRAG is here (pdf)http://www.dh.gov.uk/PublicationsAndStatistics/Publications/PublicationsPolicyAndGuidance/PublicationsPolicyAndGuidanceArticle/fs/en?CONTENT_ID=4133320&chk=dlGItU0 -
sammyhammy wrote:CRAG is quite clear on this - the disregard is for a family member over 60 living in the property. The argument is stronger if you were living with the person in care prior to the admission to care and were providing care to them. I've known a disregard where the son lived in mother's property and she lived in his. Her house was disregarded as an family member over 60 lived in it and her 'home' reverted to him when she vacated it! ..
Thanks SammyHammy and shameless-about-money for your rplies.
I have today heard from the council that this is being denied because we were not here when mum went in to care.
QUOTE
With regard to your assertion that the NAAORR 1992 and CRAG require that the Council disregard the value of Mums joint beneficial interest in the property, by virtue of you and your wife now occupying the house, the Council has sought further clarification from its own legal advisors with regard to this interpretation. The advice we have received is that the circumstances in which the Council must disregard the value of a dwelling, as set out in Para 7.003 of CRAG, occur only at the point the resident enters permanent residential or nursing home accommodation, leaving someone to whom Para 7.003 applies in occupation. Our advice is that the aforementioned regulations providing for the mandatory disregard of property in certain circumstances, were not intended to extend to arrangements which subsequently came about after the resident had left the accommodation which in your case, was some five years later.
In support of this interpretation, one needs only to look at the Guidance which CRAG gives Councils, over when it is appropriate to exercise its discretion and disregard the value of property (Para 7.007). The guidance makes clear that the discretion can be exercised to disregard the value of premises, in which the a third party continues to live. The discretion exists clearly to safeguard the position of a person (or persons) who may be 'left behind' when the resident moves into permanent residential/nursing care. It is submitted that this requirement must also be the basis for when a mandatory disregard applies, and a council is required to disregard the value of the resident's former property. The situation in your case is clearly very different and the Council's advice is that no such requirement exists.
UNQUOTE
If you have any advice or can quote precedents I would really appreciate it.
Regards
Alan0 -
My understanding is that the 7.07 discretionary disregard is an alternative to the other mandatory disregards (eg family member over 60). The example it includes would cover a child under 60 who has given up their own housing to care for the parent.
To infer the intention for the discretionary disregard into the mandatory disregard is not possible when CRAG just says 'occupies' - not 'occupies at the time of admission to care'. They are arguing that this was what was meant. If this was the case CRAG should specifically state this. There have been enough cases for the government to know that the wording could be problematic, but despite numerous amendments this remains unchanged.
I think that they have a clever argument, but one that you should rebut. Tell them that CRAG does not state that there is a requirement that you occupy at the time of the addmission to care; if this was intended it would be stated. They can infer this intention from the wording of a different section that deals with non-mandatory discretions.
When responding, tell them that you do not concede the above point, but in the alternative, even if they were correct the value of the half share is nil (see the earlier post).
I'll think on this overnight and see if I can dig out any cases on the point.0 -
sammyhammy wrote:...even if they were correct the value of the half share is nil (see the earlier post)....
Sammy, if you've not gone to bed yet something else for you to think on;)
My LA has taken legal advice and they say they can force my wife's mum's joint ownership into a tenancy-in-common and then force the sale of her share to an interested buyer, (who in today's market of increasing property prices are out there blahblahblah) who could then force us from the property! I have a copy of the advice from Lincolns Inn! They have had the property valued and assess mum's share as 40%. They really are something else!!
Needless to say I am in the final throes of the LA complaint procedure before I go to the next step, so it could be a while before they try it on. They seem really intent on getting us - probably bully tacticts because I have so far shown their department up to be incompetent!
Thanks
Alan0 -
saintalan wrote:Sammy, if you've not gone to bed yet something else for you to think on;)
My LA has taken legal advice and they say they can force my wife's mum's joint ownership into a tenancy-in-common and then force the sale of her share to an interested buyer, (who in today's market of increasing property prices are out there blahblahblah) who could then force us from the property! I have a copy of the advice from Lincolns Inn! They have had the property valued and assess mum's share as 40%. They really are something else!!
Needless to say I am in the final throes of the LA complaint procedure before I go to the next step, so it could be a while before they try it on. They seem really intent on getting us - probably bully tacticts because I have so far shown their department up to be incompetent!
Sorry - asleep by the time you posted this!
As far as I can see, they are saying that they would take court proceedings to recover the debt due to them. The court does have the power to order a severance of a joint tenancy (creating a tenancy in common). This is usually used in bankruptcy proceedings. The Local Authority would effectively be pursuing a debt and trying to get the court to make an order for sale of the property. If someone bought the 40% share and became a co-owner then they could then get a similar order for sale.
However, this creates a large number of hurdles for them to cross, and they are not going to have an uncontested run. I expect any Court to be sympathetic to your situation. Your defence to any action will be that they have wrongly included the value of the property and therefore they have no power to take the proposed action.
Who in their right mind would buy 40% of a property? This is the reason for the power to treat the remaining share as nil. The guidelines specifically state this to be the case. Do you know a local agent/surveyor who could confirm their opinion of the marketability of the share?
They are trying to bully you and you should:
1. Decline to accept their arguments about 7.03 not applying
2. Raise your alternative claim under 7.012-7.014
Remember the barrister has presented a case for the LA - anyone acting for you would be raising the arguments discussed above.
I'll see what precedents I can find and post again later.0 -
sammyhammy wrote:...
I'll see what precedents I can find and post again later.
Thanks Sammy, anything you can find much appreciated.
Cheers
Alan0 -
I've found some reference to reported cases, but I need to look them up. I'll try to do this on Monday. Hope this is OK.
FYI Case stating that value of share of co-owned property could be nil is actually an income support case, but equally applies - Chief Adjudication Officer v Palfrey (1995) - I can only find it in the Times (17th Feb) and Independent (10th April) Law reports. If your local reference library keep the Times you might get this.
There does not seem to be many cases on the interpretation of the manadatory disregards - probably because it should be clear cut.
There is a case relating to the discretionary disregard - ex p Harcombe that was in the Times law reports on 7th May 1997. I think this case was unsuccessful, but sets out the circumstances where the discretionary disregard would be allowed.
You are already using the council's appeals process. If this is unsuccessful you will need to consider a judicial review of their decision.
I'll post on Monday if I find more info for you.0 -
sammyhammy wrote:I've found some reference to reported cases, but I need to look them up. I'll try to do this on Monday. Hope this is OK....
I'll post on Monday if I find more info for you.
That would be great I appreciate your help I have posted on a number of boards but it does not seem to be a topic that has any expertise!
Incidentally how do you research precedents, I have tried the obvious Google etc but never seem to get close to anything helpful, well with regard to this topic!
Have a great weekend
Alan0 -
saintalan wrote:That would be great I appreciate your help I have posted on a number of boards but it does not seem to be a topic that has any expertise!
Incidentally how do you research precedents, I have tried the obvious Google etc but never seem to get close to anything helpful, well with regard to this topic!
Have a great weekend
Alan
It's a very specialist area. As I regularly deal with this type of issue I have some specialist books. Many cases can be found at
http://www.osscsc.gov.uk/ -
On the search page look at the category of 'capital' that is then sub-divided. It is a matter of sorting through for relevance.
Palfrey is at
http://www.osscsc.gov.uk/aspx/view.aspx?id=670
Look at paragraphs 52 - 54 for the reasons why the value of the property may be nil and why an order for sale may not always be obtained.
Hope you've got a quiet weekend!;)0
This discussion has been closed.
Confirm your email address to Create Threads and Reply

Categories
- All Categories
- 351.1K Banking & Borrowing
- 253.1K Reduce Debt & Boost Income
- 453.6K Spending & Discounts
- 244.1K Work, Benefits & Business
- 599K Mortgages, Homes & Bills
- 177K Life & Family
- 257.4K Travel & Transport
- 1.5M Hobbies & Leisure
- 16.1K Discuss & Feedback
- 37.6K Read-Only Boards