Mary Robertson Appellant Against Fife Council Respondents
| Jurisdiction | England & Wales |
| Judge | LORD SLYNN OF HADLEY,LORD MACKAY OF CLASHFERN,LORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,LORD HOBHOUSE OF WOODBOROUGH |
| Judgment Date | 25 July 2002 |
| Neutral Citation | [2002] UKHL 35 |
| Court | House of Lords |
| Date | 25 July 2002 |
| Docket Number | No 5 |
[2002] UKHL 35
HOUSE OF LORDS
Lord Slynn of Hadley
Lord Mackay of Clashfern
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Hobhouse of Wood-borough
My Lords,
I have had the advantage of reading the draft of the opinion to be given by my noble and learned friend Lord Hope of Craighead. For the reasons he gives I too would allow the appeal and make the order he proposes.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hope of Craighead. I agree with him that this appeal should be allowed for the reasons he has given.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hope of Craighead. For the reasons he gives I would allow this appeal and make the order he proposes.
My Lords,
Among the duties owed by a local authority under Part II of the Social Work (Scotland) Act 1968 ("the 1968 Act") is the duty to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area: section 12(1). They also owe a duty to provide suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such accommodation by reason of such disabilities as infirmity, age, illness or mental disorder: section 13A(1). The appellant, Mrs Mary Robertson, is such a person. She suffers from the effects of senile dementia and requires to be cared for in secure surroundings. She will continue to be in need of nursing care for the rest of her life. The respondents, Fife Council, are the local authority for the area in which she resides. They have assessed her needs for residential care with nursing, but they have decided to refuse to enter into arrangements for such care to be provided to her. This is because they have concluded that she transferred the ownership of her house to her children for the purpose of reducing the charges for which she would be liable. The question is whether the legislation permits them to refuse to enter into these arrangements on this ground.
The appellant sought judicial review of the respondents' decision in the Court of Session. On 12 January 2000 the Lord Ordinary (Lady Cosgrove) dismissed the petition: 2000 SLT 1226. The appellant reclaimed against that decision to the Inner House. On 20 April 2001 the First Division (the Lord President (Rodger) and Lord Bonomy, Lord Weir dissenting) refused the reclaiming motion: 2001 SLT 708. The appellant has now appealed against that decision to your Lordships' House.
The facts
The appellant lived at 87 Main Street, Newmills until about April 1998. The house had previously belonged to her mother. On her mother's death it was divided into two separate dwelling houses. The appellant become the owner of the ground floor, and her daughter lived with her there until she died in 1995. Her brother became the owner of the two upper floors. On 9 October 1995 she disponed the ground floor house to her three sons for love, favour and affection, but she continued to occupy the house as her residence.
During 1997 the appellant began to suffer from the effects of senile dementia. She visited the Jean Mackie Centre, a social work centre operated by the respondents in Dunfermline, for periods of about a week for care and supervision. But by March 1998 she had become incapable of living on her own. She was assessed by the respondents' social work service as being in need of constant long term care. On 21 April 1998 she was admitted to the Matthew Fyfe Residential Home in Dunfermline. The respondents assessed her financial position in terms of the National Assistance (Assessment of Resources) Regulations 1992 ("the 1992 Regulations") in order to determine her ability and liability to pay for the cost of her accommodation under section 22(1) of the National Assistance Act 1948. Regulation 20 of the 1992 Regulations, which is headed "capital limit", provides that no resident is to be assessed as unable to pay the full cost of his accommodation if his capital calculated in accordance with the relevant regulations exceeds £316,000. On the information which she was given the official who was responsible for carrying out this assessment concluded that the appellant had less than £316,000 in capital and accordingly that she did not require to pay any additional sum for her accommodation. At this stage the respondents were unaware of the fact that the appellant had transferred the ownership of her house to her children.
The appellant's condition continued to deteriorate. In about November 1998 the respondents' social work service re-assessed her condition. They concluded that she was in need of full-time residential nursing care. The respondents then arranged for her to be transferred on 13 November 1998 to the Forth Bay Nursing Home, Kincardine which was run by Kingdom Care. On 1 December 1998 she was transferred to the Kincardine Bridge Nursing Home which is also run by Kingdom Care. She has remained there ever since.
Following her move into the nursing home the respondents carried out a further assessment of the appellant's means. On this occasion the official became aware of the fact that she had transferred the ownership of her house to her children for no consideration other than for love, favour and affection about three years previously. The respondents' head of social work concluded that she had entered into this transaction, partly at least, for the purpose of reducing the charges which she would be liable to pay for her accommodation and nursing care. Regulation 25 of the 1992 Regulations, which is headed "notional capital", provides that a resident may be treated as possessing actual capital of which he has deprived himself for the purpose of decreasing the amount that he may be liable to pay for his accommodation. The respondents' decision, as recorded in their letters dated 8 December 1998 and 22 January 1999, was that the appellant had actual capital of about £37,000 and notional capital of about £335,000 to £340,000, which was the value of the house. They decided that they would no longer themselves provide her with residential nursing care until her capital assets, including her notional capital, had been depleted to £316,000. They said that they would be willing, on the other hand, to make suitable arrangements between Kingdom Care and her representatives for such nursing care to be made available to her until that stage was reached.
On 30 June 1999, on consignation by the appellant of the sum of £32,500 in name of the Accountant of Court, the Lord Ordinary (Lord Marnoch) granted interim suspension of the respondents' decision and interim interdict against them from terminating the arrangement under which the appellant is afforded residential care in the nursing home. In the result the appellant continues to reside in the nursing home, and the respondents continue to pay for her care there. The point at issue in this appeal is whether this arrangement should now be terminated.
It is not clear what the consequences would be for the appellant if the decision of the Court of Session were to be affirmed by your Lordships. Lord Bonomy acknowledged that the practical consequences could well be that she is cared for in conditions which are not the most desirable for her personally: 2001 SLT 708, 721J-K. Lord Weir said his understanding of the position was that ultimately the local authority would have to make arrangements for her to be accommodated inappropriately in a hospital run by the National Health Service: p 724J-K. However that may be, this is plainly a difficult and anxious case for the appellant and her family - as it is too for the respondents, whose interest is to make the best use of resources provided by the taxpayer. The answer to the problem that has been raised must be found in an interpretation of the legislation. It is complex, and it requires careful analysis.
The respondents' argument
The respondents' primary argument, which was upheld in the Court of Session, is that statutory authority for the decision which they have taken is to be found in section 12(3A) and (3B) of the 1968 Act. These subsections, which were inserted by section 2 of the Community Care (Residential Accommodation) Act 1998, provide as follows:
"(3A) In determining for the purposes of this section whether to provide assistance by way of residential accommodation to a person, a local authority shall disregard so much of the person's capital as does not exceed the capital limit for the purposes of section 22 of the National Assistance Act 1948.
(3B) For the purposes of subsection (3A) of this section -
(a) a person's capital shall be calculated in accordance with assessment regulations in the same way as if he were a person for whom accommodation is proposed to be provided under this Act and whose ability to pay falls to be assessed for the purposes of section 22(3) of the National Assistance Act 1948; and
(b) "the capital limit for the purposes of section 22 of the National Assistance Act 1948" means the amount for the time being prescribed in assessment regulations as the amount which a resident's capital (calculated in accordance with such regulations) must not exceed if he is to be assessed as unable to pay for his accommodation at the standard rate."
Mr Bovey QC for the respondents also submitted that section 12A(1) of the 1968 Act, as read with section 13A(1), permits a local authority to take a person's financial resources into account in deciding whether or not to provide that person with residential...
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