care home fees, deferred payments advice needed thanks.

[Lhg]

Hi, I previously posted about this situation a while ago, but things have moved on and I really need advice.

I was a carer for my mother (who has Alzheimer's) for many years. She was placed in a care home. My father (who I also cared for) passed away in 2010 and left me his share in the family home (my parents were tenants in common).

The council have said that they will not disregard the property (as in CRAG - the care home guidelines) and are offering a deferred payment scheme and state that I should agree to charge being placed on the property. I don't wish to do this. As I had to give up my career and not young enough to recoup my savings spent on looking after my mother, it's my own source of security.

Lawyers have told me that I'm both the legal and beneficial owner, but also from the land registry restriction I think my mother and I are tenants in common. If this is the case can the Council place a charge on the property? What does that mean - can they force a sale? I don't intend to sell the property, I hope to remain in it.

I found this on the internet regarding the restriction: This protection comes in the form of a Land Registry standard Form A restriction in the Proprietorship Register. This is a restriction on dispositions by a sole proprietor and reads as follows:‘No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.’This must always be entered in the Proprietorship Register when joint owners are registered as Tenants in Common because a trust of land will have come into existence which limits the power of a registered proprietor – ie. limits their ability to sell / mortgage etc the property on their own.The effect of this standard Form A restriction means that one joint owner, as Tenants in Common, cannot give a valid receipt and sell the property without the other co-owner(s) (or the beneficiaries under the deceased co-owner’s will) being a party to the transaction."I have been also told that I should get an open market valuation and this will likely be "nil value" as I am living here and cannot buy my mother's half. The council have also dismissed a valuation of the property.

I dread going to another lawyer, I haven't had hugely positive experiences, so would really be grateful for any advice. Many thanks for any help.

[stevemLS]

Re: care home fees, deferred payments advice needed thanks.

I am sorry but you may find yourself in a difficult position.

You don't own the property and so regardless of whether you wish to stay there, you need to either find the money to purchase your mother's share (which will then be used to fund the care home fees) or you will need to sell up to pay the debt when your mother dies.

Yes, the council can force the sale of the house - they have some fairly hefty enforcement powers. In my area, the council does go to court to get orders for sale.

You don't say much about your mum's health - has she been assessed for NHS CHC funding?

"The system" does not recognise "protection of an inheritance" as a legitimate aim.

Sorry, this won't be what you want to hear.

[des8]

Re: care home fees, deferred payments advice needed thanks.

I remember your past posts,and offer condolences on the passing of your mother.
I recall that everyone you spoke to (including lawyers) had a different take on your situation.
You were told (having inherited your father's share) that you were legal and beneficial owner, whilst some thought you were beneficial owner and your mother sole legal owner.
If your parents were tenants in common, your father's gift to you is absolute and you become a tenant in common with your mother.
If you are a tenant in common it means effectively the actual sale value of your mother's share (assuming 50%) is minimal.
IMO if you are tenants in common the council will have a problem forcing a sale.

Did you read the link Labman gave you? or speak to Age Concern?

The council are obviously hoping to recover their costs, either by you paying or by a deferred scheme by placing a charge on the property.(but doesn't that charge have to be arranged prior to a person entering care, not after their demise. The mechanics are that the fees paid by the council are a loan secured by a charge. Can they make the charge retroactively?
As you were carer for your mother before she entered care, I believe your council have discretionary powers to disregard the house.

I wish you well, and hope you soon manage to resolve your problems

Sorry, reread your post ad note your mother is still alive. My sincere apologies for any upset.

[des8]

Re: care home fees, deferred payments advice needed thanks.

This might prove useful:
Chief Adjudication Officer vPalfrey
, Mr Palfrey, a joint property owner, had gone into residentialcare and the question arose as to how his share in the family home shouldbe valued for the purpose of assessing his entitlement to Income Support.The house had been acquired by him and his daughter as beneficial jointtenants. Hobhouse LJ concluded that, even though Mr Palfrey was no longerpresent:Where the capital asset is a jointly owned dwelling house held for thepurpose of accommodating the joint owners and that purpose is stillsubsisting, there is nothing obscure or abstruse in the conclusion thatthe amount of capital which the applicant’s joint possession of thatdwelling house represents may fall, for the time being, to be quantifiedin a nominal amount.Based on this reasoning, the ‘subsisting’ purpose would disappear if thejoint tenant vacated the property at some future point.If you are told that the resident’s share has a value due to the followingreasons you should seek advice: the local authority has taken the value of the property and just divided it bythe number of joint owners; the local authority will ‘offer’ to be the willing buyer; or any willing buyer would be able to force a sale.

[Lhg]

Re: care home fees, deferred payments advice needed thanks.

Des8, Thanks so much yet again. You have an amazing memory. My mother is still alive thankfully (my father passed away). To be honest I would bring her home tomorrow if I could. After speaking to independent age, I hired a lawyer who specialises in community care law, but they've ignored the letter she sent and dismissed every claim (whether as a carer or even having a valuation conducted). Thanks you for Palfrey case. One thing I'm unsure about is my status - because I know the Palfrey and his daughter had bought the property - as joint tenants. However, as I inherited my half - as you state - I'm tenant in common with my mother (and legal as well as beneficial owner), so uncertain whether the Palfrey case would relate to my situation. I can't seem to find any other cases and that would help immensely. I did look at the local government ombudsman website and from what i see they've upheld the council's decision, but in the main where the property isn't lived in or intend to be lived in by the owners. However, the LGO tended to dismiss CRAG too.

[des8]

Re: care home fees, deferred payments advice needed thanks.

If you are at an impasse with the council you/your mother can either appeal to the LGO or seek a judicial review. You can't do both and the judicial review could be expensive(unless you/your mother qualifies for legal aid) as you will almost certainly need professional support.

Following the CARE ACT 2014, the CARE AND SUPPORT STATUTORY GUIDANCE is the guideline to be followed by Councils:
Annex B Treatment of capital
Para 15. A capital asset may have a current market value, for example stocks or shares, or asurrender value, for example premium bonds. The current market value will be the price a willing buyer would pay to a willing seller.

This surely also applies to property. Its current market value is what a willing buyer would pay to a willing seller.
Your mother is in a position where she can sell only the percentage of the house she owns. As was stated in the Palfrey example this will only be quantifiable as a nominal amount.

Further the council are in effect saying that they are including the house in your mother's capital assets (or at least her share of it)
This would appear to be contrary to "The Care and Support (Charging and Assessment of Resources) Regulations 2014 ...(note the italicised exception - the house does include the land?)
Capital jointly held
24.—(1) Where the adult and one or more other persons are beneficially entitled in possession to any capital asset except an interest in land—

(a)

unless paragraph (2) applies, each person is to be treated as if each of them were entitled in possession to an equal share of the whole beneficial interest; and

(b)

that asset is to be treated as if it were actual capital.

[Lhg]

Re: care home fees, deferred payments advice needed thanks.

Thanks again Des8. Sorry it took me a while to reply. I don't really want to use lawyers, partly because the council ignored the last one and also any money used, would put my mother more in debt if the worst was to happen (and therefore I would have to pay it off). The information you sent is very helpful to know. Thanks for taking the time to reply to me.

[des8]

Re: care home fees, deferred payments advice needed thanks.

Going on a slightly different tack, was your mother assessed for NHS continuing healthcare?
If so, was the assessment carried out by a registered nurse? and have you seen the care plan?

I suspect you have, but thought I'd mention it just in case.

[Lhg]

Re: care home fees, deferred payments advice needed thanks.

Dear Des8, Many thanks for considering the situation further. Unfortunately I lost the appeal last a couple of weeks ago for the NHS continuing healthcare, even though hired a private nursing assessment and psychiatrist who confirmed my mother has primary health care needs.... I want to thank you for drawing my attention to the Care Act too. I didn't know about this. From what I understand this has replaced CRAG and it seems any reference to being a carer (other than giving up your own home) as a discretionary issue has been removed. All very grim.

[des8]

Re: care home fees, deferred payments advice needed thanks.

Good luck, but I can't think of anything else at the moment that might help