- You can ask for your property to be disregarded if certain people still live in it.
- A jointly owned property may be inadmissible for means testing.
- The reason for and the manner in which a home is jointly owned may be material.
Some argue the forced sale of assets to pay for late life care, a pragmatic approach to supporting an ageing population. Others, feel betrayed by an establishment, which deployed short termism in winning votes from those it now disregards.
The most valuable asset most people own in the UK, is the home that they live in. This personal space elicits emotions associated with familiarity, safety and even territoriality. The thought of being forced to hand this over to a faceless authority, in exchange for placement in featureless accommodation, is especially galling.
For permanent care, the value of your home might be considered, in a means testing process, at its present market value (less any secured debt and 10% to reflect sales expense).
Critically, however, a ‘property disregard’ order (from local authorities) may be attained, excluding your property from means testing.
Such orders are required to the extent that your property is currently occupied by one of:
- Your partner or former partner (unless estranged);
- An estranged or divorced partner if they are also a lone parent;
- A relative aged 60 or older or who is incapacitated.
Local authorities are able to grant discretionary property disregard, in circumstances where, for instance, a vulnerable, adult/child is resident in the home. Such orders must be sought and resistance may be met, depending on the attitude of the local authority. Though formal guidance exists as to when such discretion should be exercised by a council.
In determining whether sale of a jointly owned (i.e. where all relevant parties are treated as owning 100% of the house) property may be enforced, to fund residential care costs, a judge may look at the reason that it is jointly owned in the first place, and whether that reason persists. In the case of Chief Adjudication Officer (CAO) v Palfrey (1995), the judge found that joint ownership was in place for the purpose of providing a family home (for Mr Palfrey and his daughter), and that this purpose persisted (even when Mr Palfrey was absent). The forced sale was blocked.
In the case of Wilkinson v CAO, however, in which a pair of siblings had inherited a property in equal part, no such purpose was shown to exist and enforced sale was upheld. Crucially, however, as in the case of tenants in common (whereby each owner holds a discrete share in the home), those forcing the sale must create a market for what amounts to ‘half a house’. Some assert that it is consequently preferable to hold a property as a tenant in common than a joint owner.
Seek advice urgently, if an authority tries to value a property by dividing its entire value by the number of co-owners or presents itself as a willing buyer. Ask yourself, what would I pay for ‘half a house’? Perhaps not very much.
The above does not constitute legal or financial advice and you should consult a professional. If you would like assistance with any of the issues raised please do feel free to contact Confidence Wills now at firstname.lastname@example.org .