Robertson v Fife Council
| Jurisdiction | Scotland |
| Judgment Date | 20 April 2001 |
| Date | 20 April 2001 |
| Docket Number | No 69 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION
Lady Cosgrove
Administrative lawJudicial reviewSocial securityResidential nursing careNeeds and resourcesWhether local authority entitled to consider resources of person applying for care in reaching decisionWhether entitled to consider notional capitalNational Assistance Act 1948 (cap 29), secs 22, 26Social Work (Scotland) Act 1968 (cap 49), secs 12, 12A, 13A, 87Health and Social Services and Social Security Adjudications Act 1983 (cap 41), sec 21National Assistance (Assessment of Resources) Regulations 1992 (SI 1992 No 2977), regs 20, 251
ProcessPleadingsRelevancyJudicial reviewBelieved and averredAbsence of factual averments to support inferenceWhether proof ought to be allowed
Social securityResidential nursing careNeeds and resourcesWhether local authority entitled to consider resources of person applying for care in reaching decisionWhether entitled to consider notional capitalNational Assistance Act 1948 (cap 29), secs 22, 26Social Work (Scotland) Act 1968 (cap 49), secs 12, 12A, 13A, 87Health and Social Services and Social Security Adjudications Act 1983 (cap 41), sec 21National Assistance (Assessment of Resources) Regulations 1992 (SI 1992/2977), regs 20, 251
In 1995 the petitioner disponed her house to her sons for love, favour and affection. In 1997 she began to become confused and stayed for periods of care and supervision at a centre. In about March 1998 the respondents carried out a needs assessment in terms of sec 12A of the Social Work (Scotland) Act 1968 as a result of which the petitioner went to live in a residential home. The respondents assessed her financial position and concluded that the petitioner had less than 16,000 in capital and accordingly did not require to pay any additional sum because of her capital. In the autumn of 1998 the respondents carried out a further needs assessment and determined that the petitioner required full-time residential nursing care in a nursing home. The respondents carried out a further means assessment, and concluded that the petitioner had transferred her house, partly at least, for the purpose of reducing the charges which she would be liable to pay for her accommodation and nursing care. They decided that they would not themselves provide the petitioner with residential nursing care until her capital assets, including her notional capital, had been depleted to 16,000. The petitioner presented a petition for judicial review. The Lord Ordinary dismissed the petition and the petitioner reclaimed. She argued that the respondent's duty to arrange the provision of nursing care for her was not qualified and they had erred in law when they decided not to perform their duty because they had assessed her capital as exceeding 16,000. She argued that the respondents were not entitled to decide that her needs did not call for such care on the basis of an artificial calculation which included notional capital that she did not actually possess.
Held (diss Lord Weir) (1) that when deciding whether to provide someone with assistance by way of residential accommodation, a local authority may properly have regard to his capital, including notional capital, where it exceeds 16,000, and the respondents had not erred in law (per the Lord President (Rodger) pp 856G, 858FI, per Lord Bonomy pp 869BF, 871D872E); (2) that the respondents were entitled to have regard to notional capital,
even where the person's actual capital had not exceeded 16,000 (per the Lord President (Rodger) pp 860E862A, per Lord Bonomy pp 872H873D); (3) that the respondents were entitled to treat the house as notional capital even though it had been transferred three years before (per the Lord President (Rodger) pp 862H863D, per Lord Bonomy p 870BH); and (4) that it would have been wrong to order proof of inferential averments which were not accompanied by factual averments setting out the basis for the inference (per the Lord President (Rodger) p 865CH); and reclaiming motion refused(Per Lord Weir diss) (1) that assessment of needs and ability to pay were two distinct and separate stages, and where need had been established the respondents were then under a duty to make arrangements for the provision of suitable accommodation, although a person would be required to contribute to the cost thereof according to his means (pp 873C875G); (2) that even if it were legitimate to have regard to a person's means, the respondent should have regard to actual capital and not notional capital (p 874EF).
Observed that where an assessment indicated that a person's needs would call for the provision of a service, sec 12A suggested that that service should be provided (per the Lord President (Rodger) p 859E, per Lord Bonomy p 868BE, perLord Weir p 873G).
Mary Robertson presented a petition under the judicial review procedure in the Court of Session seeking to bring under judicial review the decision of Fife Council not to arrange residential nursing care contained in letters dated 8 December 1998 and 22 January 1999. On 30 June 1999 the Lord Ordinary (Marnoch) granted interim suspension of the respondents' decision and interim interdict against the respondents from terminating the arrangement under which the petitioner was afforded residential care in a nursing home, on consignation by the petitioner of 2,500 in the name of the Accountant of Court.
The petition and answers called before the Lord Ordinary (Lady Cosgrove) for a first hearing on 910 November and 23 December 1999. On 10 November the petitioner was ordained to lodge a further 900 in the name of the Accountant of Court. At advising on 12 January 2000 the petition was dismissed. (Robertson v Fife Council 2000 SLT 1226.)
The petitioner reclaimed. On 29 February 2000, on an undertaking given at the bar on behalf of the petitioner's son Gavin Robertson, the Second Division granted interim suspension of the respondents' decision and interim interdict against their terminating the arrangement under which the petitioner was afforded care.
The reclaiming motion was heard by the First Division, comprising the Lord President (Rodger), Lord Bonomy and Lord Weir, on the summar roll on 69 March 2001.
Cases referred to:
R v London Borough of Islingtonex parte Rixon [1997] ELR 66
R v Sefton Metropolitan Borough Councilex parte Help the Aged [1997] 4 All ER 532
Robertson v Fife Council 2000 SLT 1226
Yule v South Lanarkshire CouncilSC 2001 SC 203
Textbooks etc referred to:
Bennion Statutory Interpretation (3rd ed, 1997) pp 898899
Chambers 20th Century Dictionary
New Oxford Dictionary of English
At advising on 20 April 2001
LORD PRESIDENT (Rodger)
[1] On 9 October 1995 the petitioner and reclaimer, Mrs Mary Robertson, disponed her house at 87 Main Street, Newmills, Fife to her three sons, Alexander, Gavin and Graham Robertson, for love, favour and affection. During 1997 she began to become confused and stayed for periods of care and supervision at the Jean Mackie Centre in Dunfermline. In about March 1998 the social work officers of the respondents, Fife Council, became concerned that the care which she was receiving might not be sufficient for her needs and they accordingly carried out a needs assessment in terms of sec 12A of the Social Work (Scotland) Act 1968 (the 1968 Act). The conclusion was that the petitioner needed constant long-term care and she accordingly went to live in the Matthew Fyfe Residential Home. When she moved into the Home, 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 the cost of her accommodation. On the information then given to the respondents' officer, she concluded that the petitioner had less than 16,000 in capital and that she therefore did not require to pay any additional sum because of her capital.
[2] In about the middle of August 1998 the respondents began to suspect that the petitioner was not able to receive the help she needed in the Residential Home and therefore, over the period to November, they carried out a further needs assessment which concluded that the petitioner was in need of full-time residential nursing care. In terms of sec 13A of the 1968 Act the respondents cannot themselves own or manage nursing homes and must instead make appropriate arrangements for the provision of suitable residential accommodation where nursing is provided. The respondents arranged for the petitioner to have a room in the Forth Bay Nursing Home run by Kingdom Care at Kincardine and, when that was no longer available in December 1998, she moved to the Kincardine Bridge Nursing Home, also run by Kingdom Care. If the respondents provide this kind of assistance, they must, of course, pay the nursing home concerned and they are then required by sec 87(3) to recover their outlays in accordance with sec 26(2) of the National Assistance Act 1948 (the 1948 Act). In connexion with the petitioner's admission to the nursing home, the respondents carried out a further assessment of her means and, on this occasion, the official concerned became aware that the petitioner had transferred her house to her sons for love, favour and affection some three years before. Eventually, the respondents' Head of Social Work concluded that the petitioner had transferred her house, partly at least, for the purpose of reducing the charges which she would be liable to pay for her accommodation and nursing care. In these circumstances, for reasons which I shall have to investigate in more detail, the respondents decided that they would not themselves provide the petitioner with residential nursing care until her capital assets, including her notional capital, had been depleted to 16,000. They were, on the other hand, happy to make suitable arrangements between Kingdom Care and the petitioner's representatives for such residential nursing care to be...
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Mary Robertson Appellant Against Fife Council Respondents
...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 6 The appellant lived at 87 Main Street, Newmills un......