Limitation period for LA recovery of care home fees

December 12th, 2017 by Jonathan Auburn

Last year I blogged about the issue of the limitation period for claims brought by local authorities for recovery of care home fees which they have paid and seek to recover from the individual care home resident or their estate. At the time I was concerned that there may be a gap in the law. Curiously, that blog post itself led to a court case which has now resolved the issue.

The issue, in a nutshell is this: section 69(3)(b) of the Care Act 2014 provides for a three year limitation period on claims brought by local authorities for the recovery of care home fees. This appeared to represent no change in the law. Yet the previous limitation period, applicable when section 56 of the National Assistance Act 1948 still governed such claims, was generally six years rather than three.The case that resolved the matter is Nottinghamshire County Council v Estate of Mr Wilfred Belton and Mr Ian Belton [2017] EW Misc 26 (CC). The Council brought a claim against the estate and the deceased resident’s son as transferee. At the first instance hearing the issue of limitation was raised when the second defendant handed up to the court the blog post referenced above, and argued on the basis of that blog post for a three year limitation period. The judge found for the Council on all matters, though admittedly without dealing with the limitation issue. The defendants appealed on the limitation point.

The legal point was fully argued out on appeal, with a detailed investigation of the limitation issue across the pre- and post-Care Act provisions, and in particular the effect of the Care Act transitional provisions. The court ruled as follows –
(i) The limitation period for recovery of care home costs in the County Court under the former section 56 NAA (other than for summary recovery – which is rarely if ever used) is six years: see paras 26-27.
(ii) While this pre-Care Act debt fell due at the time of the NAA rather than the Care Act, the Care Act transitional provisions (Care Act 2014 (Transitional Provision) Order 2015, Art 3(2)) provide that they are recoverable under section 69 of the 2014 Act: para 28.
(iii) As the sums in this case fell due before 1 April 2015, section 69(3)(b) applied. This appears to impose a three year limitation period: para 29.
(iv) However Article 3(4) of the Transitional Provision Order provides that pre-Care Act 2104 charges are recoverable within the period for which they would, but for Article 3, have been recoverable under s.56 NAA. Article 3(3) preserves the time limits which applied to such NAA charges before the Care Act 2014. Thus the effect of Article 3 of the Transitional Provision Order is to make NAA charges recoverable under s.69 Care Act 2014 but subject to the s.56 NAA time limit, which is six years: paras 30-31.
(v) There may still be a role for the three year limitation period, the judge holding at para 35 that: “The three year period in s.69(3)(b) refers to sums due under s.69 Care Act 2014. It does not apply to sums due under NAA or HASSASSA unless those sums are specifically brought within the Care Act 2014. In this case the NAA monies claimed in respect of Wilfred Belton are brought into s.69 Care Act 2014 by way of the Transitional Provision but subject to the preservation of the original limitation period. There may well be sums initially due under other legislation which are brought within s.69 by other transitional provisions without preserving the original limitation period: alternatively that is a legislative option which may be exercised in the future. In that event the three year s.69(3)(b) limitation period would apply”.

This judgment brings some much needed clarity to what has been an uncertain issue in the law of care home fees recovery. The question remaining now is what is left of the three year limitation period which section 69 of the Care Act 2014 appears at first blush to impose as a general rule.

Jonathan Auburn

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