1. Claims against estates by Max Thorowgood

2. Entitlement to charge under Care Act 2014 - Section 14
LA entitled to charge:
For meeting needs
For making arrangements to meet needs
Unless:
Payments have already exceeded cap
Payment of the charge would leave the person with less than the prescribed amount of their income

3. Deferred payment agreements
ss. 35 & 36
Care and Support (Deferred Payment) Regulations 2014
Local authority must offer such an agreement if:
• residential care is provided by the local authority or could have asked the local authority to make the arrangements for his residential care (thereby including the self-funder);
• legal or beneficial interest in a property which is his main or only home and which is not disregarded in the financial assessment;
• has capital (other than the interest in the property) which does not exceed the financial limit; and,
• is able to provide adequate security for the amount to be deferred.

4. Guarantee from a third party
Adequate security
Charge over the legal or beneficial interest in the only or main residence
Guarantee from a third party
Or such other security as the LA may consider sufficient
Written consent from anyone who has an interest and whose interest might prevent the LA from enforcing to:
The creation of the charge
That charge having priority to their interest

5. Registration of Charges
Land Registry Practice Guide 8.22
Sole beneficial owner: notice or charge
Tenants in common: Form A
Joint tenants: Form MM
Floating charge register early.

6. Enforcement where there is no deferred payment agreement – s. 69
Any sum in respect of which LA entitled to charge is a debt
Not enforceable where a DPA could have been offered unless:
LA has offered DPA
The adult has refused
6 year limitation running from the date on which the debt fell due. Regs may specify, otherwise date of demand.

7. Enforcement where there is no deferred payment agreement – s. 69
Right of recovery against a person who misrepresents of fails to disclose a material fact.
Includes any person
Extends to expenditure incurred as a consequence of the misrepresentation
And sums which would otherwise have been recoverable

8. Anti-avoidance – s. 70
Conditions for recovery from transferee:
Transfer of asset
Intention to avoid charges
Transaction at undervalue
Liability is for the difference between the amount charged and the amount which would have been charged, limited to value of asset.
Apportioned rateably in case of multiple transferees

9. Claims
Annex D of the guidance deals with the recovery of debts. It sets out circumstances in which the local authority should consider writing off debts. These include:
• where the debt is small and the cost of recovery is disproportionate;
• the impact of recovering the debt would adversely affect the well-being of the person receiving the care and support; and,
• the person or their representative could not reasonably have been aware that the asset in question needed to be included in the financial assessment.

10. Enforcement
Application for an interim charging order.
Register the interim charging order.
Apply to have order made absolute. Very limited grounds for resistance once judgment entered.
Apply early to protect asset.

11. CPR 19.8
Grant of representation: must sue the representatives as such
No grant: Claimant must apply for a person to represent the estate.
Court may appoint anyone but is likely, save in straight-forward circumstances to require a grant to be taken.

12. Unsatisfactory representative
s. 50 Administration of Justice Act 1985 – Court has power to remove some or all of the representatives.
High threshold: fraud or dishonesty, serious maladministration; or stymieing progress.

13. Unproven will
Citation of executor to take a grant by a person having an inferior right:
Residuary legatee holding in trust
Residuary legatees including those with a life interest
Their personal representatives
A specific legatee or a creditor

14. Intestate and solvent
‘Clear off’ all those having a superior right to a grant by citation:
Spouse
Issue
Parents
Brothers and sisters
Remoter relatives
The Crown bona vacantia

15. Administration by the representative in accordance with the order
Insolvent estates
If the estate is or may be insolvent it must be administered pursuant to the Administration of Insolvent Estates of Deceased Persons Order 1986/1999
Administration by the representative in accordance with the order
Administration action
Administration by a trustee in bankruptcy under insolvency act:
Easier to get order for sale
Set aside rights of surviving joint tenants

16. Intermeddling
Doing acts pertaining to the administration of the estate without taking a grant.
Cite the intermeddler to take a grant
Apply for them to be passed over under s. 116 Senior Courts Act 1981

17. Process of citation
Object of citation is to explain the nature of the interests of the citor and citee(s):
Draft citation and affidavit submitted to Probate Registry for approval
Clean drafts submitted. Caveat entered
Advertisements lodged
Appearance – grant to citee or s. 116
Non-appearance – grant to citor

18. Claims against personal representatives
S. 28 Administration of Estates Act 1925: Claims against representatives by unpaid creditors who have paid away the assets of the estate whether lawfully or otherwise.
S. 27 Trustee Act 1925: Protection of representative by advertisement.

19. Problem
£50, fees due and owing
Property in sole name of the deceased
Mortgage but no HASSASSA charge registered
Son of deceased answering correspondence addressed to the personal representative
No grant of representation taken

20. Solutions
Declare a charge
Register it
Bring proceedings for possession
Application under 19.8(2)(b)(ii) for son to be appointed as representative
Cite son to take grant

21. Problem
£100, fees due and owing
Property valued at £200, in joint names of the deceased and son
HASSASSA charge in form MM registered
Son of deceased answering correspondence addressed to the personal representative at the property
Daughter of deceased point of contact for Council to whom bills sent
No grant of representation taken
Daughter challenging assessment of care home charges

22. Solution
Insolvent estate ? Are there any other assets
HASSASSA charge in form MM protects Council’s interest
Is there a will and, if so, whom does it appoint ?
Cite them both to take a grant