A local authority want to take a property held in a discretionary trust into consideration for assessment for care costs. I know that the Care and Support statutory guidance appears to say not (for both capital and income), but is it that straight forward? Does anyone have any experience of this please?
There will likely be a requirement set by the local authority to prove the formalities of LPA 1925 s 53(1)b are in place in respect of trusts of real property. Then then timing of the disposal is likely to be relevant. Was there a foreseeable need of care at the time? Finally there may potentially be a requirement to prove the intention of the transfer went beyond avoiding the inclusion of the property in a financial assessment. Is there evidence of a genuine estate planning intent. All these factors are likely to be subject of LA inquiry.
Prima facie, it seems to me, that the local authority should not, absent a specific legal authority on the point. A beneficiary of a discretionary trust merely has a right to be considered for benefit by the trustees under their discretion. That was demonstrated by the House of Lords in Gartside -v- IRC, which led to a re-writing of the legislation on death duty, as it then was, in Finance Act 1894.
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The OP does not clarify the status of the care recipient. We’re they a settlor of the trust or are they solely the beneficiary of a trust in respect of which the settlor is another person?
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