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A local authority's right to sell a person's home in order to claw back nursing home fees has been upheld in the hi...
A local authority's right to sell a person's home in order to claw back nursing home fees has been upheld in the high court.

David Harcombe, 52, gave up his career as a care worker with aborigines in Australia to return to Britain to look after his mother, Faith, and stayed on in her four-bedroomed Somerset home after she was forced into a nursing home.

His lawyers had attacked Somerset CC's decision that the£500-a-month shortfall in her nursing home fees should be set against the value of her£85,000 home and ultimately against her children's inheritance.

But Mr Justice Forbes today ruled there was nothing unreasonable in the council's approach and Mr Harcombe's home, at Donisford Road, Watchet, is now encumbered with a debt to the council running into thousands.

Although the council has agreed the house will not be sold so long as jobless Mr Harcombe lives there, interest on the debt will continue to accrue, and he may in any event be forced to sell so that his sister Ann can have her share of the reduced inheritance.

The court heard Mr Harcombe emigrated to Australia in 1976, forging a successful career working with troubled aborigines, before returning to Britain in 1991 to care for his mother who had suffered from Parkinson's Disease for 20 years.

Largely due to his devoted efforts Mrs Harcombe was able to return to her own beloved house from a nursing home. But a series of strokes in 1993 forced her back into residential care. She was looked after at the Minehead and District Nursing home until her death one-and-a-half weeks ago at the age of 85.

Even after using up all Mrs Harcombe's meagre income, there was a£500 monthly shortfall in her nursing home fees which had to be paid for by the county council.

Mr Harcombe's lawyers had challenged the council's decision last year to register a legal charge against his mother's home to cover the ever-increasing debt.

It was only due to his efforts that she had been able to stay in her own home as long as she had, and he had given up everything in Australia to fly home and minister to his mother before her final admission to residential care.

Gregory Jones, for Mr Harcombe, argued it had been unreasonable of the county council not to exclude the value of Mrs Harcombe's£85,000 home when assessing her entitlement to have her nursing home fees paid out of the public purse.

But Mr Justice Forbes told the court: 'I have decided that the value of the house should not be disregarded because it would not be reasonable to do so in all the circumstances.'

It was a fact 'of central importance' to the case that Mr Harcombe had in March 1994 - after his mother's admission to the nursing home - returned to Australia in an attempt to re-establish his career and life there.

'Mr Harcombe's current occupation of the house is not attributeable to any need for him to care for Mrs Harcombe. Rather it is attributeable to his own decision to give up the job and the accommodation which were available to him in Australia,' the judge ruled.

But he said the council had rightly conceded that it would 'not be right' to seek to enforce the charge over Mrs Harcombe's home and sell it while her son still lived there.

That was in recognition of Mr Harcombe's 'emotional attachment' to the property and the support he had given to his mother in her final years.

But the concession was a 'personal' one to Mr Harcombe and would give no rights to anyone else who lived there from time to time.

And the judge said he appreciated that the issue of whether the house should now be sold depended not merely on the council's views but also on the entitlement of Mr Harcombe's sister Ann's entitlement to a share in her mother's estate.

He rejected as 'misconceived' claims that the value of the house should have been disregarded when assessing Mrs Harcombe's right to have her nursing home fees paid by the local authority.

The council's approach had been 'entirely appropriate' and 'cannot be faulted in any way,' the judge concluded.

Mr Harcombe had his judicial review challenge dismissed, and the judge adjourned the question of who should pay the action's heavy legal costs.

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