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Spottydog2020

Health & Social Services & Social Security Adjudications Act 1983

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On a legal firm's website - I found the following information.

 

Section 22 [and S24] of the Health & Social Services & Social Security Adjudications Act 1983 [HASSA] was repealed along with S45 of the National Assistance Act 1948 - on 01 April 2015 when the Care Act 2014 came into force.

Before this date a Local Authority was entitled to protect a debt arising from unpaid care home fees by securing a legal charge against a resident's property and the LA could secure the debt by simply making the relevant application to the Land Registry and there was no need to secure a judgment for the debt in advance.

 

Article goes on to say After 1 April 2015 a Local Authority will only be able to recover unpaid care home fees by securing a judgment debt either in the County Court or the High Court (s69(1) of the Act).

and

The Act increases the time limit for the recovery of a debt comprising of unpaid care home fees from three years to six years from the date the sum becomes due

 

My question is - IF a charging order was placed on a property under S22 of HASSA - does it still apply given that this was repealed and replaced with the new legislation Care Act 2014 and if the debt has not been repaid within six years - does this mean the charge is not enforceable?

 

TIA

Spotty Dog

 

 

 

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Hello and welcome to CAG.

 

I think it would help us to advise if you could give us some of the background on this please.

 

Best, HB


Illegitimi non carborundum

 

 

 

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Hi honeybee13

 

Thanks for the welcome and response.

 

Basically the council put a charge on the house [jointly owned] when my dad had to go in a care home. He was there for about a year before he   died so the amount is relatively small I suppose in relation to other people but the principle is big!

 

I disputed this as thought he was entitled to NHS Continuing Care and went through various appeals - remains unresolved from my last review but the council haven't been in touch with me for many years now and while I was renting out the house I'm now at the point of selling it so the charge has reared its ugly head.

 

I'm reading it that the repeal of S22 [and S26] of HASSA means that the charging order isn't enforceable and that's probably why the council hasn't been in touch as it's out of time to make a claim?

 

Is that the case? Should the council have contacted me after 01 April 2015 to make a claim under the new Act?

 

It's all rather complicated.

If you are able to shed any light on this I'd be very grateful.

 

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did you used to have another username on CAG?

i seem to recall a similar story sometime last year almost the same that Andyorch advised on?

 

dx

 


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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HI

No I don't but I did post about this situation in some detail on a forum called Law Forum in 2018 but not long after the the site stopped operating - I was quite surprised to learn they said they couldn't operate due to introduction of GDPR.

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ok well then .....you might find this advice here useful:

 

 


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Andyorch - thank you - I've not seen this article before I don't think but I did use the below as part of my argument without success.

‘if no other relative is willing to buy the resident’s interest, it is highly unlikely that any “outsider” would be willing to buy into the property unless the financial advantages far outweighed the risks and limitations involved. The value of the interest, even to a willing buyer, could in such circumstances effectively be nil. If the local authority is unsure about the resident’s share, or their valuation is disputed by the resident, a professional evaluation should be obtained.’

 

My original question at the start of this thread stemmed from reading the below article. 

https://hardwicke.co.uk/the-care-act-2014-could-this-affect-your-clients/

 

IF a charging order was placed on a property under S22 of HASSA - does it still apply given that this was repealed and replaced with the new legislation Care Act 2014 and if the debt has not been repaid within six years - does this mean the charge is not enforceable?

 

I can see from your earlier post that you say the charging order stays until the house is sold - does the repealing of S22 not change this after the Care Act was introduced in April 2015?

The Land Registry informed me that my restriction is a 'non-standard' restriction and the charge could not be registered or noted instead it was protected by registration of a restriction.

 

Thanks

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Given that you are paying a Conveyancing Solicitor I would let him sort the matter out . There is no CCJ in your case so the charge is not reliant on a judgment . Normally changes to any legislation such as above are not normally retrospective.

 

Andy


We could do with some help from you.

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Thanks Andyorch - I just thought I'd stumbled on the holy grail and that this solved the problem.  Clearly not.

Wanted to get the feel for it before instructing a CS in case they came up with lots of additional charges.

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And you may well have......best to get a copy of the worded restriction/charge verbatim to clarify what the LR told you as that is unclear.

 

Quote

The Land Registry informed me that my restriction is a 'non-standard' restriction and the charge could not be registered or noted instead it was protected by registration of a restriction.

 

The relevant legislation is rather complex but as stated its not normally retrospective so your charge is old style.


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I have got a copy of the charge. The Land Registry responded to say that the document attached to the RX1 was as follows.

The A4 document headed 'Health and Social Services and Social Security Adjudications Act 1983 and National Health Service and Community Care Act 1990' is a statutory charge. However as the person concerned (your late father) was one of joint proprietors of the property, the charge could not be registered or noted. Instead it was protected by registration of a restriction.
 
This is a statutory charge that has arisen under section 22 of the Health and Social Services and Social Security Adjudications Act 1983.
 
Unfortunately the Land Registry blog was discontinued on 30 June 2020 [I only found out today!] they're waiting for a new platform which could take a few weeks - so I haven't been able to obtain any other advice, other than what I found in the Hardwick and co website today which stated that S22 of HASSA had been repealed and stated that 
 

After 1 April 2015 a Local Authority will only be able to recover unpaid care home fees by securing a judgment debt either in the County Court or the High Court (s69(1) of the Act).

and

The Act increases the time limit for the recovery of a debt comprising of unpaid care home fees from three years to six years from the date the sum becomes due

 

hence I thought that as the fees had not been paid and more than 3 years had elapsed that perhaps the charge was no longer extant?

 

 If the restriction is such that the CS only has to notify the council [and there's no restriction on me selling] then I thought the sale could proceed while I continue to battle it out with the council. Who haven't been in touch now since 2016.

 

This is all very complicated - I'm sure it could be simplified!!

 

Thank you

 

 

 

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i suspect the charge on the Land registry site against the house reads:

 

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.

 

..............

 

that is a restriction k and is useless to the council, as all 'legally' your have to do is inform them AFTER the house has been sold .

then it's too late money has gone.

 

dx


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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dx100uk

 

You are absolutely correct. That's exactly what the wording is! And if that's the case then - happy days for me! However, I thought that:

 

1. This wording meant the conveyancing solicitor had to tell the council that the house was about to be sold so they were aware!  

But you are saying that the council only needs to be informed AFTER the house has been sold?

Can I tell the council that? [I think I've seen something on the internet that says I can, rather than the CS]

Or do I need the conveyancing solicitor to contact the council?

 

2. That this wording wasn't a restriction K [as I'd looked at Schedule 4 of the Standard Forms of Restriction] and tried to match my wording to those listed - and thought restriction K was the closest.  

 

3. That this was a non-standard restriction [and that's what the Land Registry told me too and that the restriction was not a Restriction K!!! [see extract below]

 

Please remember that when applying for a restriction not in standard form:

 

  • it must always contain the words ‘is to be completed by  registration’ rather than ‘is to be registered’. This will serve to make the effect of the restriction clear. The term ‘registered’, where used in any of the standard form restrictions, means the completion of a registrable disposition by complying with the relevant registration requirements prescribed in Schedule 2 to the Land Registration Act 2002 (rule 91(3) of the Land Registration Rules 2003), but this statutory definition only applies to standard form restrictions. Please note that we will not accept restrictions not in standard form for registration that contain the words ‘is to be registered’
  •  

So I'm confused now.

IF it is a restriction K - then the conveyancing solicitor doesn't have to do anything and I can let the council know.

 

It seems it is dependent on the wording 'completed by registration' and 'is to be registered'???

 

Below is copied from Martin's MSE.  

This relies again on the 'is to be registered' whereas my wording is ' completed by registration' which you say is restriction K and LR says is not.

 

I need to go to sleep now!

 

Thanks dx.

 

Extract from MSE below.

 

If your property is jointly owned a creditor will not be able to obtain a CO against you, they can only get what is called a restriction.

The laws on Restrictions are totally different to Orders, the most important being there is NO OBLIGATION for you to pay any of the proceeds of the sale to the creditor.

However, during the whole court process you go through the reference from all parties (especially the creditor) will be to charging order and NOT to restriction. This is done in order to deceive you believing you are stuck with a CO.

However, not all solicitors are aware of the law in this regard and it is important that you raise this point with them in the first instance before proceeding with them

Quote:

Restriction

The restriction which can be entered on the register where a charging order is made against one of joint proprietors is in the following form :-


No disposition of the registered estate is to be registered without a certificate signed by the applicant for registration or his conveyancer that written notice of the disposition was given to [name of person with the benefit of the charging order] at [address for service], being the person with the benefit of /I]an interim[I/I]a final[I charging order on the beneficial interest of (name of judgment debtor) made by the (name of court) on (date) (Court reference.…).

 

 

 

 

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i point you to two threads whereby you'll see an explanation by andy (post 22 here)

https://www.consumeractiongroup.co.uk/topic/410486-lowell-interim-charging-order-from-credit-card-debt-2009/?tab=comments#comment-4912902

 

and

 

https://www.consumeractiongroup.co.uk/topic/406428-remortgage-issue/

 

if yours says: 

 

written notice of the disposition was given to XX Council ( - disposition = sold vis: disposed of) ..... notice means letter telling them it's been sold - 

 

doesn't say it must be paid or settled BEFORE disposition..

 

that's the way i read it.

 

 

 

 

 


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Thank you very much Dx100uk. 

 I’ve read post 22 and the other articles with great interest but I have a query regarding the ‘completed by registration’ angle.

 

The LR confirmed that I have a  non-standard restriction as entered in the register.

 

They said it's not a standard Form K restriction but a statutory charge, however, as the person concerned (my late father) was a joint proprietor of the property, the charge could not be registered or noted. Instead it was protected by registration of a restriction.  

 

It’s not a CO so didn’t go through the Court so no interim or final charging orders involved.

I'm reading this that I don’t have a Charging Order instead a unilateral notice was issued resulting in the placing of  a restriction on the property?

 

With reference to the advice in post 22 extract below - as I didn't agree to this I'm presuming that I have a unilateral notice.

 

Notices [Unilateral or Agreed]

If a property which is the subject of a notice is sold the purchaser should insist that the form necessary to remove to, signed by the beneficiary, is supplied on completion. Obviously the beneficiary will only sign this if the debt is satisfied.

It is often possible however to have a notice removed following a sale without the consent of the beneficiary depending on the circumstances.

 

Q.  I have a restriction - but do I also have a notice?

If I have a notice then the above is worrying as obviously the council is not going to sign the form to have the restriction removed.

 

Restrictions

 

A restriction prevents the property from being sold without the consent of the beneficiary or without some evidence that a specified action has been performed.

In terms of securing a debt the restriction would require the consent of the creditor to the sale and that consent would not be granted unless the debt was repaid.

 

Q. the wording on the restriction above contradicts the 'effect of the restriction' below does it not?

 

Unless the restriction is as a result of a Court Order or bankruptcy proceedings then the consent of the owner is needed in order to register it. A restriction alone does not prove that the interest being claimed is valid and will not provide the details of it however it will protect the priority of the interest if it is valid.

 

The effect of the restriction 

 

The debtor and his joint owner’s freedom to sell the property is not affected by such a restriction. They could sell the property as if there was no charging order against the debtor. All that was required was that the new buyers or their solicitor write to the creditor informing them that they now owned the property and then confirm to the Land Registry that they had given that notice. Then the buyers could register the property with no further complications.

 

The creditor, who is sitting back, waiting to get paid, instead just receives a letter confirming that a sale has already taken place, typically a week or two after the sale so there is little they can do to get the debt paid.

 

In theory the creditor could apply for a freezing order against the debtor to try and obtain the cash from the sale proceeds. However, most creditors will never make such an application:

 

The cost of applying for such a freezing order would run into thousands of pounds.

The debtor might have spent the cash from the sale of the property before the freezing order was obtained so there is little, if anything, for the freezing order to bite on.

 

Q. Does this apply to my case given that the restriction in my case states ‘No disposition of the registered estate is to be completed by registration without a certificate signed by the applicant [presume that’s the council?] or his conveyancer that written notice of the disposition was given to [name – council] being the person with the benefit of a Charge under S22 of the HASSA 1983.  

 

The wording suggests to me that the sale can’t be completed without first notifying the council?

Whereas the text above suggests the new buyers/conveyancing solicitor need only write to the council to advise they are the new owners and then write to the LR that they've told the council and then the 'charge/restriction/entry' will be removed?  

If this is the case - then that would be the solution for me!

 

Just a little concerned though that the wording in Panel 10 also includes the word ‘Charge’ whereas the LR has already confirmed it is a restriction.

Apologies for the long post 

 

 

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no ....a notice goes from your conveyancing solicitor TO the Council upon sale, informing them of the sale.

that's the only bit that might have to be done your way.

 

it doesn't have to be returned or signed by the council at all before sale can be completed.

else it wouldn't be sent would it...as the home has not been sold! think about it.

 

but the best way.... your way ....is do nothing.

most restriction k's are simply ignored, as the fact that it's useless comes out in the wash when the new owners register the property on LR and it simply disappear with the old registration.

 

pers unless i'm totally wrong, and these carehome notices are treated differently, which i doubt. i'd forget about it.

you appear to be wasting far too much time chasing your tail.

 

 

 

 


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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dx100uk

Thank you!

I am indeed chasing my tail. I am Spotty Dog after all!

 

I just need to find a conveyancing solicitor who understands the restriction.

The CS then writes to the council upon/after? the sale.

 

The new owners [or their CS] registers their ownership on LR and the 'restriction' drops off?  

 

When I approached a few CS they all did the builder thing of pursing their lips and whistling "that'll cost you....it's very complicated..." sort of thing.

 

BTW the LR however has stated to me that it is not a Restriction K - if that matters?

 

Thank you so much, I will go down this route and provide an update when it's all done and dusted so others can benefit from the exchange and will make a donation to the site as I'm very grateful for the advice.

 

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let the others have a change to answer.

 

pers i would not pay any attention to anyone that says you must

we've seen even LR give the wrong information before.

they cant stop the sale BTW.


please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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The issue is 2-fold (both related to perceived risk, in a very risk-averse profession):

a) will you find a conveyancer who will agree and follow that they needn't worry, and just notify once sold, and

b) buyer's wil be put off if their conveyancer says "well, there is a risk".....

 

The combination of these may be that unless you get very lucky, you'll only get interest in a sale if an undertaking to settle the outstanding sum is made.

 

As for the repeal : I imaging that it will prevent new charges / restrictions from when it came into force, not revoke pre-existing ones.

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BazzaS

Ah - now that complicates things - just when I thought I'd got my head round it!

 

I did think b] might be a source of worry for the purchaser. They have just instructed their solicitor yesterday but I haven't found one yet, preliminary enquiries didn't result in any clarity on the questions I posed. a] where do I find a CS who understands this and can share their knowledge with the buyer's CS?

 

I've no idea what the outstanding balance is as the council has not been in touch. I appealed many years ago and it wasn't resolved. I did do a SAR with the council and nothing came back from the Finance dept. so I was hoping my appeal had been accepted and the debt 'wiped' but they hadn't bothered to contact me. There were lots of changes up to the new Care Act 2014 which came into force on 01.04.15 

 

Repeal: I was relying on the meaning below? Hence again I thought that's why the council hadn't pursued the debt and was just leaving the CO [or restriction] on the register to keep me on my toes!

 

If a government repeals a law, it causes that law no longer to have any legal force.

 

Thanks

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Absolutely: The Homicide Act was repealed. So, after that they could no longer charge people for murder under the Homicide Act. (Not the greatest of examples, I accept, given murderers just get charged with murder being against the common law- but my point is:)

 

You can no longer be charged with Murder contrary to the homicide act.

That doesn’t mean that those serving sentences for murder contrary to the Homicide Act, having been found guilty, had to be released the day the law was repealed.

 

Charges / restrictions couldn’t be placed under the repealed legislation (without e.g. a CCJ) once the Act was repealed. The repeal doesn’t mean existing charges / restrictions in force at the day of repeal have to be removed.

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I was obviously clutching at straws on that one!

I was putting the repeal together with the information below and considering that as I hadn't heard from the council for over 3 years that this might mean the charge / restriction was not now being pursued, particularly as the SAR disclosure did not show any entry for me from the Finance Dept. I fear I'm back to square one now.

 

After 1 April 2015 a Local Authority will only be able to recover unpaid care home fees by securing a judgment debt either in the County Court or the High Court (s69(1) of the Act).and The Act increases the time limit for the recovery of a debt comprising of unpaid care home fees from three years to six years from the date the sum becomes due

 

 

 

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The disadvantage to a creditor of a charging order or restriction is that they have to wait for their money.

 

The advantage to a creditor of a charging order or restriction is that it doesn’t become statute barred. It isn’t a “new cause of action”, and needs neither a new court claim nor a court’s permission to enforce, so they just sit back and wait (no six year limit).

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Ok so the charging order or restriction remains in force, no time limit.

 

I'm back now to finding a CS who understands that the restriction merely requires them to notify the council AFTER the house has been sold [as per post no. 17] and can explain that to the buyer's solicitor so the buyers are reassured and proceed with the sale. I can then pursue the case with the council when they receive notification of the sale as no doubt that will fire up the case again after being dormant for so long.

 

If anyone can recommend a CS they've used before in similar circumstances or one they know has experience of this I'd be grateful.

Thanks

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