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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 10655
Experience:  30 years as a practising solicitor.
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My wife's mother and father lived in the same house as my mothers

Resolved Question:

My wife's mother and father lived in the same house as my mothers maiden aunt, and the property was owned jointly between the three occupants. My wife's father died in 1982, and ownership then passed to the surviving sisters. My wife's mother died in 2000 and left her half share in the house to my wife and her sister. The aunt had to go into a care home in 2007, and she was means tested as owning a half share in the house. The local authority offered a loan to pay for her care until the house was sold, which eventually happened in 2009. The loan was repaid on sale, and her fees have been paid from dwindling resources until her remaining capital reaches £14000. We now believe that although the aunts share in the value of the house should have been disregarded, and we should not have been forced to sell the house. The aunt's resources would then have been about £20000. My wife died in 2013, but her sister survives, and has Power of Attorney in financial matters for the aunt. Does she, and I as my wife's spouse, have a claim against the local authority for the loss of an asset which could have produced an income for us over the intervening period, and we would still have had a saleable asset. Additionally, the aunt has paid out fees since 2007 amounting to about £40000, which she may not have been liable to pay.
Submitted: 1 year ago.
Category: Law
Expert:  JGM replied 1 year ago.
Thank you for your question.
Why do you think that the aunt's share in the house should have been disregarded?
Customer: replied 1 year ago.

Because she was a part owner of the house, and her nieces were not informed that their non-residence in the house did not affect their right to remain in possession of their asset. In effect, it was though the aunt had a partner who would remain in the house after she went into care, in which circumstances her share should have been disregarded.

Expert:  JGM replied 1 year ago.
When the aunt was means tested, were the joint owners living in the property?
Customer: replied 1 year ago.

No, but I have been told that has no bearing on the decision

Expert:  JGM replied 1 year ago.
I think that you are right but not for the reasons you state.
There was no one else living in the house at the date of the assessment.
A disregard of property generally applies where the home is occupied by one of the
following:
1. The care home resident's partner (who
is not estranged or divorced from
them).
2. A relative of the resident who is aged
over 60, or is incapacitated.
3. A child under the age of 16 years who
the resident is liable to maintain.
4. A lone parent who is the resident's
estranged or divorced partner.
The local authority also has the discretion to ignore property in special
circumstances; for example if it is the sole residence of the care home resident’s
previous carer who gave up their own home and/or employment in order to
look after them.
Where a property is jointly owned with another person whose joint ownership
does not enable the property to qualify for any of the above disregards, ***** ***** the case here, the local
authority will take the care home resident’s share into account. However, in doing so it is the value of that interest
which is taken into account bearing in mind:
• the person’s ability to re-assign the
beneficial interest to somebody else.
• there being a market i.e. the interest
being such as to attract a willing buyer
for the interest.
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.
The local authority should be taking that into account, assessing the value at NIL because of the joint ownership and restricted market and disregarding the property for that reason.
So I think you would be justified in taking this further.
JGM, Solicitor
Category: Law
Satisfied Customers: 10655
Experience: 30 years as a practising solicitor.
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