R (the Personal Representatives of Christopher Beeson) v Dorset County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 30 November 2001 |
| Neutral Citation | [2001] EWHC 986 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/25/2001 |
| Date | 30 November 2001 |
[2001] EWHC 986 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/25/2001
Richard Drabble QC and David Wolfe (instructed by Conrad Haley) for the Claimants
Jonathan P. Swift (instructed by Dorset County Council's Head of Legal Services) for the Defendant
Nigel Giffin and Jason Coppel (instructed by the Solicitor to the Department of Health) for the Interested Party
This is a challenge to a decision of the defendant council dated 9 October 2000 confirming an earlier decision that Mr Christopher Beeson had deprived himself of his former property in Weymouth in circumstances that meant that the value of that property fell to be taken into account in assessing his ability to pay for residential care arranged for him by the council. The decision was taken under the National Assistance Act 1948 and related regulations. It is challenged on grounds relating specifically to the individual decision and on the broader ground that the relevant statutory procedure is incompatible with Article 6 of the European Convention on Human Rights. The original claimant was Mr Christopher Beeson himself. Sadly, he died soon after the hearing, at the age of 95. The issues raised, however, affect his estate and are in any event of general importance. I have therefore given permission for the claim to continue with the substitution of his personal representatives as claimants.
Statutory framework
By section 21 of the National Assistance Act 1948:
“(1) Subject to and in accordance with the provisions of this Part of this Act, a local authority may with the approval of the Secretary of State, and to such extent as he may direct shall, make arrangements for providing —
(a) residential accommodation for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them ….”
By section 22, where a person is provided with accommodation the local authority is required to recover from him a payment in accordance with a “standard rate” which is to represent the full cost to the authority of providing that accommodation. Section 22(3) reads:
“Where a person for whom accommodation in premises managed by any local authority is provided, or proposed to be provided, under this Part of this Act satisfies the local authority that he is unable to pay therefor at the standard rate, the authority shall assess his ability to pay and accordingly determine at what lower rate he shall be liable to pay for the accommodation.”
In assessing a person's inability to pay, a local authority is required by section 22(5) to give effect to regulations made by the Secretary of State for the purposes of the subsection. The relevant regulations are the National Assistance (Assessment of Resources) Regulations 1992 (“the 1992 Regulations”), described below.
Section 26 empowers local authorities to contract with third parties for the provision of accommodation and contains provisions corresponding to those in section 22 for the recovery of refunds from the person to whom the accommodation is provided. Thus by section 26(3):
“Subject to subsection (3A) below a person for whom accommodation is provided under any such arrangements shall, in lieu of being liable to make payment therefor in accordance with section 22 of this Act, refund to the local authority any payments made in respect of him under the last foregoing subsection:
Provided that where a person for whom accommodation is provided, or proposed to be provided, under any such arrangements satisfies the local authority that he is unable to make a refund at the full rate determined under that subsection, subsections (3) to (5) of section 22 of this Act shall, with the necessary modifications, apply as they apply where a person satisfies the local authority of his inability to pay at the standard rate as mentioned in the said subsection (3).”
By section 56, without prejudice to any other method of recovery, any sum due under the Act is recoverable summarily as a civil debt.
The 1992 Regulations, made under section 22(5) of the 1948 Act (see above), contain detailed provisions concerning the assessment of a resident's ability to pay. Part III concerns the treatment of capital. Within that part, regulation 20 provides that no resident is to be assessed as unable to pay for his accommodation at the standard rate if his capital exceeds a specified amount (currently £18,000). Regulation 25 deals with “notional capital”. Regulation 25(1) is the provision central to the present case:
“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 [subject to immaterial exceptions].”
In relation to materially identical wording in regulation 51 of the Income Support (General) Regulations 1987 (“shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to income support …”) it has been held that there has to be a deliberate intention to obtain benefit and that for there to be such an intention the claimant has to be aware of the relevant capital limit rule; it is not enough that the claimant ought to have known of the rule (decision of the Social Security Commissioner dated 11 February 1991 in Case CIS/124/1990).
Of more direct assistance, however, is a judgment of an Extra Division of the Court of Session in Yule v. South Lanarkshire Council [2000] SLT 1249 on regulation 25 of the 1992 Regulations themselves. The judgment provides helpful guidance on the process of assessment and on how to approach the question of purpose:
“28. … The process of assessment, therefore, begins with the requirement for the resident or prospective resident to provide information to the local authority from which the local authority can be satisfied that he is unable to pay the standard charge for the accommodation. The local authority cannot be so satisfied if the capital, both actual and notional, exceeds the specified sum. In determining the matter of notional capital, the local authority can only proceed upon the material which is available to them either from their own sources or upon that material as supplemented by material from the applicant and from such other sources as the local authority can reasonably be expected to apply to. We agree with counsel for the petitioner that in considering whether there is notional capital to be added to the actual capital of an applicant, the local authority must look to the information before them to determine whether a purpose to the effect specified in the regulations can be deduced. But, in our opinion, this is not a matter of onus of proof. Rather, before the local authority can reach such a view, it must have material before it from which it can be reasonably inferred that the deprivation of capital took place deliberately and with a purpose of the nature specified. The local authority cannot look into the mind of the person making the disposition of capital or of others who may be concerned in the transaction. It can only look at the nature of the disposal within the context of the time at which and the circumstances in which that disposal took place ….
29. … [W]e do not consider … that it is necessary that the claimant should know of ‘the’ capital limit above which, in terms of the relevant regulations applicable at the time, the local authority is bound to refuse the application, if it is a reasonable inference, looking to the transaction in the whole surrounding circumstances relating to the applicant, that it must have been a purpose of the transaction to avoid having to pay any charges in the event of becoming a resident in residential accommodation provided by the local authority. In this respect we consider that the 1992 Regulations have to be looked at in a different light to those concerned with provision for income related benefits, not least because the purpose of the individual may have formed possibly some time ahead of the prospect that he or she might require to enter such residential accommodation …” (emphasis added).
On the particular facts of the case, where the family “were not able to throw any further light on the purpose of the transaction” beyond what was contained in correspondence (para 30), the court held that “there were sufficient primary facts to entitle the respondent reasonably to conclude that Mrs Yule had deliberately determined to denude herself of her one substantial asset because, by doing so, she might thereby avoid the prospect that if she were to enter residential care in her lifetime, her house would require to be sold and the proceeds, at least in part, would require to be devoted to payment for that care, to the detriment of her family's interest in the succession to her estate on her death” (para 32). Finally the court stated:
“33. We agree with the Lord Ordinary that it is open to a local authority to reach a view as to the purpose of a transaction such as the present, without any specific finding as to the exact state of knowledge or intention of the applicant, so long as the primary facts are such as reasonably to lead to the inference that the purpose was at least in part that specified in reg 25(1).”
As I read the judgment, the court accepted that the relevant “purpose” must be a subjective purpose...
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