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Consulted a solicitor today re matters regarding mum - Carers UK Forum

Consulted a solicitor today re matters regarding mum

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I'm posting this here in case it helps anyone else in a similar position. I today consulted a solicitor who specialises in matters regarding care home fees/property/wills etc, to ask some questions about mum's financial position as she is self funding her care home and her money will be running below the £23,500 threshold this summer. Also, myself, my husband and my mother are joint owners of our house and have been for thirty three years, and I was under the impression that because I am over sixty and a close relative living in it, it would be automatically disregarded by the LA in mums FA. So, basically, I found the following out:

A property is automatically disregarded if the close relative over sixty, lives there, but not if they part own it with the relative in the care home. The basis of this is that, if you just live there, at sixty you would find yourself homeless and possibly without funds if your relative lived long enough to use up the entire value of the house in fees. If however, you are part owners, the LA presumes you will be financially secure with your portion of the proceeds from the sale. The solicitor said that, despite this, she felt that there is every likelihood that they would still disregard it, because of the length of time we have lived there, the fact it's our daughters only home too, and that no one would want to buy a third of a house. I hope she is right because if we only get a deferred charge, the LA could take their paymentsi back when we ever decide to sell. She said that if the LA challenged the property being part of her assets, she would write to them setting out our case.
Secondly, I was aware that between mum's money falling to £23,250 and £14,500, a tariff of £1 per £250 would be due per week. But I thought it meant, per £250 of care fees paid by the LA. It actually means per £250 of savings that your parent retains. That's a considerably larger amount to pay out!!
Anyway, sorry for the long post, but it might be of use to someone on here. I'm hoping we can get through this and come out with at least the full value of our home, so that we can sell and downsize, and recoup some money for our old age!! This is so blooming stressful and annoying isn't it? xx
Jillian_1801 wrote:
Thu Feb 15, 2018 5:53 pm
A property is automatically disregarded if the close relative over sixty, lives there, but not if they part own it with the relative in the care home.
I'm trying to make sense of this, in the light of information in the various factsheets, such as this one:
https://www.ageuk.org.uk/globalassets/a ... re_fcs.pdf
4 Property that is disregarded
4.1 Mandatory disregards
If you enter a care home permanently, any interest you have in your
existing ‘main or only’ home is usually taken into account as capital.
However, there are circumstances where it must be disregarded from
your means test. This applies if you no longer occupy the property but it
is occupied, in part or whole, as their main or only home by:
 your spouse, partner, former partner or civil partner, except where you
are estranged
 a lone parent who is your estranged or divorced partner
 a relative of yours or member of your family who is:
 aged 60 or over, or
 a child of yours aged under 18, or
 incapacitated.
The bit in bold is by me. My legal training was always to highlight the obligatory stuff, and that reads like something that obligatory, to me. so I checked the statutory guidance (i.e. "this is what LAs must do") to the Care Act 2014. This is what the official guidance (taken from the government's website) says:
Property disregards
34. In the following circumstances the value
of the person’s main or only home must be

(b) Where the person no longer occupies
the property but it is occupied in part or
whole as their main or only home by any
of the people listed below, the mandatory
disregard only applies where the property
has been continuously occupied since
before the person went into a care home
(for discretionary disregards see below):
(i) The persons partner, former partner
or civil partner, except where they are

(ii) A lone parent who is the person’s
estranged or divorced partner;
(iii) A relative as defined in paragraph
33 of the person or member of the
person’s family who is:
(1) Aged 60 or over
, or
(2) Is a child of the resident aged
under 18, or
(3) Is incapacitated.
35. For the purposes of the disregard a
relative is defined as including any of the
(a) Parent (including an adoptive parent)
(b) Parent-in-law
(c) Son (including an adoptive son)
(d) Son-in-law
(e) Daughter (including an adoptive daughter)
(f) Daughter-in-law
(g) Step-parent
(h) Step-son
(i) Step-daughter
(j) Brother
(k) Sister
(l) Grandparent
(m) Grandchild
(n) Uncle
(o) Aunt
(p) Nephew
(q) Niece
(r) The spouse, civil partner or unmarried
partner of a to k inclusive
that's from here: https://www.gov.uk/government/uploads/s ... idance.pdf
Annex B

The example from the government's guidance is:
Example of occupying a property when not physically present
Matt is 60 years old and has been living overseas for the past 10 years due to his job in the diplomatic service. When he is in England, he lives at the family home he grew up in. His father Ken has been assessed as having eligible care and support needs that are best met by moving into a care home. In Ken’s financial assessment, the value of his property is disregarded as his son Matt is a qualifying relative that occupies the property as his main or only home. Although Matt is not physically present at the property at the point Ken moves into the care home, his alternative accommodation is only as a result of his employment and the family home is his main home.
from https://www.gov.uk/government/publicati ... y-guidance

so is there a problem regarding ownership?
Annex B (12) of the governmental guidance states:
12) Where a person has joint beneficial ownership of capital, except where there is evidence that the person own an unequal share, the total value should be divided equally between the joint owners and the person should be treated as owning an equal share.
That implies that the number of joint owners is irrelevant, if it came to the point that the property was included in the financial assessment. But I cannot find anything that suggests that joint ownership prevents mandatory disregard. Quite the opposite - there is no mention of it in any of the factsheets or guidance on the subject.

All of the above assumes you live in England or Wales. If you do, I'm baffled.
Yes, I was under the definite impression that there must be a mandatory disregard if a close relative occupied the property, and this was the first point I raised with the solicitor. But the devil appears to be in the detail: if you just 'live with' the older person who is in care, for example as a son or daughter who has never married, then it appears there is some concern afforded to the difficulty you would be in by being possibly made homeless at an age when it would be nigh on impossible to start up on your own. But if you have part ownership in the property, and therefore you would receive money eventually from its sale, there seems to be a presumption that you can go out and buy or rent a place on your own with that money? In all the explanations of this rule that I have read ( including the extracts you have posted) the wording is 'living in' or 'is there only home', not 'who part owns' or 'jointly owns'? I wish it wasn't so because I would like to have my mind put to rest that this house, that me and my husband have put thirty three years of TLC and hard work into, will one day be completely ours. Even if we sell it, that we would realise all the value of it, without the LA recouping any fees that they had paid. In light of your post, Hamsterwheel, I may phone the solicitor tomorrow and quote these passages to her to see what she says. Thank you for your reply xx
I'd be really interested in her reply. I'm wondering if there have been court cases since the Care Act that have made binding decisions, and the solicitor is aware of these - as s/he would be. Hmm... I might go looking...
I found this from a charity named the Elderly Accommodation Council
Jointly Owned Property
If you jointly own your property with someone who does not fall into any of the above property
disregard categories then the local authority will take your share into account.
However, in doing so
it is the value of that interest which is taken into account bearing in mind: your ability to re-assign
the beneficial interest to another person; there being a market i.e. the interest being such as to
attract a willing buyer for your interest.
[/color]It may well be construed that because a joint owner has a
right to occupy the property it is unlikely that there would be a willing buyer prepared to share in that
right to occupy it. If therefore the only person who may possibly be interested in purchasing the
share is the joint owner effectively, the ‘market value’ could be nil. Legal advice should be sought in
these circumstances.
Now, I though it interesting because it echoes some of the things your solicitor said to you, especially the bit in red (I put the colour there). The bit that interests me is the bit I've coloured blue. This is the first thing I've found that sounds (at least to me) what your solicitor was saying. The important thing about the bit in blue is that it doesn't indicate whether it means that
(a) if anyone you jointly own the property with doesn't fall within a category of mandatory disregard, then it doesn't matter if others do, or
(b) unless you jointly own the property with someone who falls within a category of mandatory disregard, the LA will take your share into account

I'll do a simple example. Say a home is owned by A, B and C. A is in care, B falls within a category of mandatory disregard and C doesn't. Under my (a) above, the only thing that matters is that C doesn't. In that case, B's entitlement is ignored.
Under my (b) above, the only thing that matters is B's entitlement. That C isn't is ignored.

You can see the two meanings have very different consequences. More digging required...

(by the way, on a more general note to anyone reading this thread, that looks like an interesting website)
This is Reading's latest financial assessment framework. It states:
If you own your home, or have a beneficial interest in your home, from which you
have left to move to a care home, you will need to check whether your property
capital will be disregarded.
The Care and Support (Charging and Assessment of Resources) Regulations 2014
and The Care and Support Statutory Guidance set out the circumstances in which
property capital is always disregarded.
For example:
• if your spouse or partner still lives in the property – your property capital
would be disregarded (ignored) in the financial assessment for as long as
your spouse/partner continues to live there.
If you have a relative aged over 60, or a disabled relative who still lives in
the property, the property would also be disregarded for as long as that
relative, or relatives, were living there
(page 40 of this: http://www.reading.gov.uk/media/1846/Ch ... 017-18.pdf)

No mention of who owns what.

It's notoriously difficult to prove a negative - if something never existed, it's impossible to produce evidence of something that never happened. If there is a property owning condition attached to mandatory disregard, I would have expect some of the advice I've linked to - especially the governmental website stuff - to have mentioned it. You know, like the small print in a contract. So far - nothing. Not a whisper.

This is a legal training module on problems arising from joint ownership of property and the legal trasiner addresses your situation here:
19.1 Where there is no occupant in the property which has the effect of
triggering the automatic disregard, such as a spouse, the local authority will have
to place a value on the service user’s beneficial share in an interest in land held
https://events.lawsociety.org.uk/upload ... f08118.pdf

She goes on to discuss valuation of a jointly owned property that is not disregarded. Put that together with what I've quoted and it seems clear that the steps are:
(a) is there a property?
(b) does someone over 60/disabled/a spouse live there? If so, disregard
(c) if not, assess

I'm beginning to wonder if your solicitor had a bad day, to be honest.
If you have a relative aged over 60, or a disabled relative who still lives in
the property, the property would also be disregarded for as long as that
relative, or relatives, were living there.

I wonder if relative over 60 will be changed to 66 with the new pension ages?
[/qThe solicitor said that, despite this, she felt that there is every likelihood that they would still disregard it, because of the length of time we have lived thereuote]

Not if you have a council are as heartless as Borough of Poole

I lived in same house as Dad and was under 60 but had been born there 50 years ago. They would have been quite happy to see me homeless at the end of 10 years of caring.
This morning I decided to phone the adult social care dept at our civic centre. Without giving any names, I asked them about this matter. The person I spoke to said that they thought that the property would indeed be disregarded as I also live there aged over sixty ( I pointed out it was jointly owned by the three of us), but she went to get the opinion of a colleague. She came back and said, yes, it would be disregarded. I'll phone my solicitor on Monday to tell her. All very confusing!
You are ok if someone living there is over 60 but any younger beware of being made homeless after all your efforts. I only had a close shave because my father passed away, if he had lived another year or 2 I could have found myself homeless. Carers beware .If I can give back anything to this wonderful community it will be by saving someone else from experiencing this " surreal hell"