Care home fees: Request for nhs continuing care denied & charge put on property

[smiffysmithsmith]

My dear Dad who served in WWII and worked all his life developed vascular dementia after suffering a stroke and eventually ended up in a care home.

We applied for NHS Continuing Care and was passed from pillar to post as is the case for many.

The only asset he had was the ex-council house which I helped him to buy [he had lived there for over 40 years at the time] with my mother.

We bought the house as joint tenants in 1985.

 

On my mother's death in 1991 we failed to inform the Land Registry of her death [not clued up at all about these things] so the house was then jointly owned by myself and my Dad.

My Dad went into a care home in 2006.

The local authority [LA] rejected the claim for NHS Continuing Care and took all my Dad's pension leaving him with a few pounds each week.

 

As I was the joint owner of the property with my Father the LA kept sending me bills for the shortfall in his weekly care home fees.

 

Upon my Dad's death in 2007 the LA continued to chase me for the shortfall in the care home fees amounting to thousands of pounds despite my stating I was pursuing a claim for NHS Continuing care.

 

Earlier and unbeknown to me the LA had put a charging order on the house

[sending 3 letters - one to my deceased mother, one to my father who was in the care home and one to me [living 200 miles away]

we didn't pick up the letters until after the deadline for objecting had passed as we were obviously up and down the motorway visiting my father in the care home.

 

Since then I have completed various questionnaires and sent loads of emails to no avail and no resolution of this issue.

The demands for payment from the Finance Dept. stopped in 2014. I've not heard anything since.

 

My questions are:

1. Does the charging order made by the LA against the property have an expiry date?

I have seen something about 12 years?

 

2. If the Finance Dept. has stopped chasing me for payment

- where do I stand now?

Is the debt written off after x number of years?

 

I maintain my father was fully entitled to NHS Continuing Care and I will continue to fight this

- he died in 2007

- I haven't heard anything further from my last appeal I think in 2014

- it is very wearing.

 

Meanwhile I can't sell the house

[the charge on the house means the LA will get their hands on the money to which I vehemently object]

and am letting the property out to tenants which is a whole new world of pain.

 

I also foolishly paid someone to act as my advocate and of course he took the money and did

- feel very let down that he could take advantage of people when they are at such a low ebb.

I know I'm not the only person to fall prey to this person.

 

Any advice gratefully received.

 

Thank you.

Edited January 2, 2019 by dx100uk
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[AndyOrch]

Hi and Welcome to CAG

 

With regards to your questions re the charge...there is no expiry date and will remain until settled...unless in the meantime you successfully challenge it.

 

But because the property is jointly owned the debt can only be registered to the debtor (Your Father) share in the equity...so 50% of his equity share..this is known as a restriction ( likely a Restriction K ) and is different to an outright Charging Order.

 

With a ‘full’ charging order the holder can block any sale (& thus usually gets an undertaking from a conveyancing solicitor that they will be paid in full as a condition of allowing a sale).

 

With a Restriction K some conveyancers believe the same, but the terms of the Restriction only require the conveyancer to certify that they will inform the holder of the Restriction of the sale.

 

Regards

 

Andy

[smiffysmithsmith]

Thanks Andy for clarifying that there is no expiry date.

 

I am confused now as I thought it was a full charging order and the LA would claim its fees when the house was sold.

I'm not selling as I firmly believe my father was entitled to NHS Continuing Care and will continue to fight for this.

 

Below is an extract from the Land Registry

- so it looks as though it is,

as you say,

a Restriction K?

- I had not heard of this term or distinction before

- so thank you for enlightening me!

 

 

Title absolute1.

(XX.XX.1982) PROPRIETOR:

Father [was alive at time of charge but died later in 2007]

Mother [Died 1991] and

ME of XX ROAD, TOWN, POSTCODE.

 

2. (XX.XX.2007) RESTRICTION:

No disposition of the registered estate is to be completed by registration without a certificate signed by the applicant or his conveyancer that written notice of the disposition was given to XX Council at P.O. Box XX, STREET, TOWN, POSTCODE, being the person with the benefit of a Charge under Section 22 of the Health and Social Services and Social Security Adjudications Act 1983.

 

The 'charge' doesn't specify an amount either - should it do so?

I haven't heard from the Finance Dept. since 2009

- there has been no mention of interest or anything else.

 

Also I guess I should have informed the Land Registry of my Father's death [and my Mother's many years earlier]

- what happens to the Title Absolute then?

And the charge?

 

I'm very grateful for any advice you can offer as I'm going round in circles here

- I was up until 0300 this morning trying to untangle this

[i do this periodically and then lapse again as it's so exhausting]

thank you

Edited January 2, 2019 by dx100uk
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[AndyOrch]

Yes it would be wise to update the details with the LR and that you are now the only surviving proprietor

 

 

6.22 Charges under section 22 of the Health and Social Services and Social Security Adjudications Act 1983 (‘the 1983 Act’)

 

Because of changes made by the Care Act 2014, local authorities in England cannot take charges under the 1983 Act on and after 1 April 2015 regardless of when the liability arose. Changes made by the Social Services and Well-being (Wales) Act 2014 mean that local authorities in Wales cannot take charges under the 1983 Act on and after 6 April 2016.

 

A local authority which has provided a person (‘the resident’) with ‘Part III accommodation’ (broadly speaking, accommodation in a care home) may recover charges assessed as due for it by creating a charge under section 22 of the 1983 Act on the interest which the resident holds in any one parcel of land. It does so by making a written declaration to that effect.

 

Where the resident is the sole beneficial owner of the property charged, the charge will take effect as a charge of the legal estate and, where the estate is registered, may be registered as a registered charge, or noted under section 32 of the Land Registration Act 2002. If you are applying for an agreed notice you must lodge form AN1 and a certified copy of the declaration of charge. Additionally, you should provide a statement, either in the charge itself or in an accompanying letter, that the authority has made no declaration in relation to any other parcel of land in which the resident has a beneficial interest. If you are applying for a unilateral notice you must lodge form UN1 setting out in a statement in panel 12 or a conveyancer’s certificate in panel 13 details of the charge, including the date, the name of the person whose interest is charged, the property charged and confirmation that no declaration has been made in respect of other land.

 

Where the resident is a joint owner, the charge affects only his or her beneficial interest, not the registered legal estate.

 

A charge on the beneficial interest of an equitable tenant in common is a derivative interest - see Interests under trusts for an explanation of this. For the reasons explained in that section, the only restriction that the local authority can apply for in this case is a restriction in Form A to secure that the interest is overreached. If (as will usually be the case where the proprietors are beneficial tenants in common) there is already a Form A restriction in the register, the local authority’s interest is already protected and no further application seems to be possible.

 

Where the resident is an equitable joint tenant, sections 22(5) and 22(6) of the 1983 Act make specific provision as to what happens. Normally, a charge on the beneficial interest of one joint tenant would automatically sever the joint tenancy. However, section 22(5) provides that the joint tenancy is not severed, but the charge will be for an amount not exceeding the value of the interest which the resident would enjoy if the tenancy were severed. Section 22(6) explains what happens when the resident dies. The interest of the surviving joint tenant or tenants becomes subject to a charge for an amount not exceeding the amount of the charge on the resident’s former interest.

 

Where it takes a charge under section 22 of the 1983 Act on the interest of a beneficial joint tenant, therefore, a local authority may apply for a restriction in Form MM. The restriction only affects dispositions made after the resident has died or has become a sole proprietor. Before then, joint proprietors can freely dispose of the property, overreaching the beneficial interests, including the local authority’s charge. The restriction allows for three possibilities.

 

If there is more than one surviving joint proprietor on the death of the resident, they can overreach the local authority’s interest in the usual way

If there is a sole surviving proprietor, the charge would now appear to attach to the legal estate vested in that proprietor, so that it can be noted or registered

It may be possible to show that no charge under section 22 is subsisting

Application for a restriction should be made in form RX1. The application must be accompanied by a certified copy of the declaration of charge. The statement in panel 12 or form RX1 or conveyancer’s certificate in panel 13 must be completed, setting out details of the charge. It should be confirmed that no such declaration has been made in respect of the resident’s interest in any other parcel of land.

 

https://www.gov.uk/government/publications/notices-restrictions-and-the-protection-of-third-party-interests-in-the-register/practice-guide-19-notices-restrictions-and-the-protection-of-third-party-interests-in-the-register

[smiffysmithsmith]

Thanks Andy for this - I am ploughing through it - my brain is about to explode.

 

I wrote to the LR back in 2007 to advise my Mother had passed away many years previously,

when I picked up the three letters sent to the empty property!

But I suppose I need to do it formally on one of their official forms.

 

If I do the same to have my Father's name removed from the register

- what happens to the charge on the property?

It just sits there still waiting for me to pay it I presume?

 

The charge is silent as to the exact amount due and as I say I've not heard anything further from the LA since 2009!

That's when they sent me the last bill and I explained I was still pursuing NHS Continuing Care.....

 

Thanks

Edited January 2, 2019 by dx100uk
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[AndyOrch]

Well looking at the above my last post.... the paragraph in bold....

 

What date was the Restriction placed ? after your fathers death ?

 

 

If there is more than one surviving joint proprietor on the death of the resident, they can overreach the local authority’s interest in the usual way

If there is a sole surviving proprietor, the charge would now appear to attach to the legal estate vested in that proprietor, so that it can be noted or registered

It may be possible to show that no charge under section 22 is subsisting

 

OVERREACHING is a term most commonly defined as the process of transferring equitable interests under a trust from a specific piece of land to the capital money received from the purchaser.

 

Overreaching is a concept in English land law and the Law of Property Act 1925. It refers to a situation where a person's equitable property right is dissolved, detached from a piece of property, and reattached to money that is given by a third party for the property. This happens, according to City of London Building Society v Flegg in any case where property is bought or mortgaged in a contract with two or more title holders.

 

Overreaching can only exist where a trust is in existence and a property is sold. It occurs when the purchaser paid to at least two trustees in monies. The occupiers of a property in such a situation cannot then claim that their occupation of the property is an overriding interest, as the joint trustees have brought that occupation to a close through the sale of the property.

 

By purchasing the property from trustees, under Section 2 of the Law of Property Act 1925,[1] the occupation rights of any other party are automatically extinguished. If such a party claims an overriding interest in the land, that interest is converted by attaching a monetary interest to the land, such as a purchase price, and the interest claimed by the party is 'overreached'; this conversion is often referred to as the doctrine of equitable conversion.

 

If only one owner exists, there is a risk that a third party could claim occupation and overreaching cannot apply.

 

The issues of overreaching and overriding interests are often closely linked, and the case of Birmingham Midshires v Sabherwal examined both issues.

 

Overreaching is a process whereby certain equitable rights in land which might otherwise have enjoyed protection in the system of registration on the occasion of a sale of that land to a purchaser for value are "swept off" the land and transferred to the purchase money that has just been paid.

[smiffysmithsmith]

Hi Andy

The charge was placed on the property before my Father died and I was not given any notice of the LA's intention to do so.

 

When the LA carried out their financial assessment they included the house [probably worth £50k at the time]

so that on a 50/50 basis my Father had more than the £23,500 assets limit.

 

I told the LA that rather than using the market value of the property divided by two,

they should have based its value on the sale value of what would be my Father's “beneficial interest to a willing buyer”,

which would make the valuation lower [or even nil] because the chances of finding a buyer willing to purchase my Father's 50% share would be negligible.

 

It was after I put forward this argument that the LA put the legal charge against the house!

I don't recall the LA carrying out a proper valuation either.

All a bit of a mess.

 

I've had a look at the case but I don't think overreaching applies as it's just me who now owns the property?

 

It may be possible to show that no charge under section 22 is subsisting?

I didn't understand this

- does this mean there could be a way to evidence no charge should be made?

 

Thanking you.

Edited January 2, 2019 by dx100uk
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[AndyOrch]

Yes it is rather a mess and pity you didn't object/challenge at the time...but as you state dealing from distance can be troublesome.With any property charge you must work backwards...the charge/restriction only acts as a security of the debt...so to overturn it you must deal with the judgment that the charge secures.

 

As stated its a Restriction and to be honest you could leave it sat there forever as you have no intention to dispose of the property and to challenge it could be significantly expensive.

 

So either opt for the quiet life as its causing no problem or get an opinion from a really top conveyancing lawyer whether the initial judgment was fairly placed...but challenging bills for the shortfall in his weekly care home fees from so far back could be difficult.

 

 

Andy

[smiffysmithsmith]

Okay thanks for the advice

- I did challenge it at the time

 

I have made several applications via the different channels

- as the parameters changed

 

- first it was the SHA and then someone else

- I've been passed from pillar to post

 

- it did go to appeal where the charge was reduced slightly but they wouldn't go to full NHS CC.

 

I will have to be brave and get out all the paperwork from the attic and make a fresh appeal.

 

I sent one in before the last deadline........

 

I'm going to call for SAR from the LA and the NHS to try and get to the bottom of it.

He should definitely have had NHS CC and I'm going to carry on fighting it.

 

Thank you!

Edited January 2, 2019 by dx100uk
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[AndyOrch]

And we wish you all the best with that...but at least you now understand the Restriction/Charging process....good luck and dont forget to update the LR details