Yule v South Lanarkshire Council

The cause called before an Extra Division, comprising Lord Cameron of Lochbroom, Lord Osborne and Lord Reed for a hearing on the summar roll on 29 and 30 June 2000.

At advising, on 15 August 2000, the opinion of the court was delivered by Lord Cameron of Lochbroom.

Opinion of the Court—[1] In June 1996 the petitioner's mother, Mrs Rhoda Yule, was placed in Kirkknowe Nursing Home, Wishaw. In terms of certain statutory provisions and regulations to which we will refer in due course the respondents, as the local authority, required to carry out a financial assessment of Mrs Yule as a resident of that nursing home and a person to whom such statutory provisions and regulations applied. Following certain discussions and correspondence the respondents, in a letter dated 12 March 1997, intimated that they had decided that Mrs Yule was not entitled to public funding in respect of the costs of her stay at that nursing home because she was in possession of notional capital in excess of £16,000 by reason of the value of a dwelling house at 195A Stonelaw Road, Rutherglen. This house had previously belonged to and had been occupied by Mrs Yule.

[2] The present petition was raised by the petitioner as agent under power of attorney for his mother. It sought reduction of the decision of the local authority intimated in the letter referred to on the ground that the decision was ultra vires et separatim unreasonable et separatim unlawful, all as set out in the first plea-in-law. The question of vires was the subject of a debate before the Lord Ordinary. On 4 February 1998 the Lord Ordinary repelled that part of the first plea-in-law so far as directed to the contention that the decision was ultra vires of the local authority. A motion for review of that interlocutor was dismissed on 1 July 1998. Thereafter, after further debate, the Lord Ordinary on 12 May 1999 repelled the outstanding pleas-in-law for the petitioner and dismissed the petition. It is against that decision that the petitioner has brought this reclaiming motion.

[3] The immediately relevant statutory provisions are to be found in the opinion of the Lord Ordinary dated 4 February 1998 to which we refer.

[4] We start with sec 22 in Part III of the National Assistance Act 1948 as amended. This relates to charges to be made for accommodation. It provides as follows: “22(1) Subject to section 26 of this Act, where a person is provided with accommodation under this Part of this Act the local authority providing the accommodation shall recover from him the amount of the payment which he is liable to make in accordance with the following provisions of this section. (2) Subject to the following provisions of this section, the payment which a person is liable to make for any such accommodation shall be in accordance with a standard rate fixed for that accommodation by the authority managing the premises in which it is provided and that standard rate shall represent the full cost to the authority of providing that accommodation. (3) 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…(5) In assessing as aforesaid a person's ability to pay, a local authority shall give effect to regulations made by the Secretary of State for the purposes of this subsection.”

[5] Section 21 of the Health and Social Services Adjudication Act 1983 concerns the recovery of sums due to a local authority where persons in residential accommodation have disposed of assets. It provides as follows: “21.—(1) Subject to the following provisions of this section, where—(a) a person avails himself of Part III accommodation; and (b) that person knowingly and with the intention of avoiding charges for the accommodation—(i) has transferred any asset to which this section applies to some other person or persons not more than six months before the date on which he begins to reside in such accommodation; or (ii) transfers any such asset to some other person or persons while residing in the accommodation; and (c) either—(i) the consideration for the transfer is less than the value of the asset; or (ii) there is no consideration for the transfer, the person or persons to whom the asset is transferred by the person availing himself of the accommodation shall be liable to pay to the local authority providing the accommodation or arranging for its provisions the difference between the amount assessed as due to be paid for the accommodation by the person availing himself of it and the amount which the local authority receive from him for it....(8) In this Part of this Act "Part III accommodation" means accommodation provided under sections 21 to 26 of the National Assistance Act 1948, and, in the application of this Part of this Act to Scotland, means accommodation provided under the Social Work (Scotland) Act 1968.”

[6] Section 87 of the Social Work (Scotland) Act 1968 concerns the charges that may be made for services and accommodation...