House of Lords
|Session 2001- 02
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Robertson (AP) v Fife Council
HOUSE OF LORDS
Lord Slynn of Hadley Lord Mackay of Clashfern Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Hobhouse of Wood-borough
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
ON 25 JULY 2002
 UKHL 35
LORD SLYNN OF HADLEY
1. 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.
LORD MACKAY OF CLASHFERN
2. 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.
LORD NICHOLLS OF BIRKENHEAD
3. 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.
LORD HOPE OF CRAIGHEAD
4. 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.
5. 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.
6. 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.
7. 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 £16,000. On the information which she was given the official who was responsible for carrying out this assessment concluded that the appellant had less than £16,000 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.
8. 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.
9. 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 £7,000 and notional capital of about £35,000 to £40,000, 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 £16,000. 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.
10. On 30 June 1999, on consignation by the appellant of the sum of £2,500 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.
11. 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
12. 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:
13. 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 accommodation with nursing under that section. He said that the effect of section 12(3A), on its natural construction, was to confirm that a local authority might properly take an applicant's capital, including notional capital, into account when deciding whether or not to provide them with residential accommodation with nursing under section 13A(1).
The framework of the legislation
14. In order to understand these arguments it is first necessary to see what sections 12(1), 12A(1) and 13A(1) of the 1968 Act respectively provide. They set out the basic framework for the performance of the various duties in the field of community care services which rest on the local authority.
15. Section 12(1) provides as follows:
I shall have to examine this section, including most of its other subsections, in more detail at a later stage. For the time being it is sufficient to note that subsection (1) of section 12 falls into two parts. The first part identifies in general terms the various ways in which the local authority must promote social welfare in their area. The second part identifies the persons to whom assistance may be provided. It may be provided to "any relevant person". That expression is defined in subsection 12(2), to which I shall return.
16. Section 12A(1), which was inserted into the 1968 Act by section 55 of the National Health Service and Community Care Act 1990, provides:
The expression "community care services" is defined in section 5A(4) of the 1968 Act as meaning services, other than services for children, which a local authority are under a duty or have power to provide, or to secure the provision of, under inter alia Part II of that Act. They include the provision of residential accommodation with nursing under section 13A.
17. Section 13A(1), which it is convenient to set out together with section 13A(2), provides as follows:
18. It is to be noted that the persons to whom residential accommodation with nursing is to be provided under section 13A are not those who fall within the definition of "a relevant person" for the purposes of section 12. They are persons who appear to the local authority to be in need of such accommodation by reason of the conditions described in section 13A(1). Furthermore, in contrast to section 12(1), which permits a local authority to provide residential and other establishments as general social welfare services, it does not enable the local authority themselves to provide accommodation where nursing is provided. The power which is given to the local authority by this section is restricted to a power to arrange for the provision of the accommodation by an organisation or person of the kind described in section 13A(2). These two features of section 13A indicate that it is a free-standing provision, the characteristics of which are more narrowly defined than those of section 12 which sets out the general social welfare duties of the local authority. Further support for this view is to be found in the opening words of section 13A(1), which state that it is "without prejudice to section 12 of this Act". Its provisions are not to be read either as restricted by or as cutting down the wider powers which are to be found in section 12.
19. Section 12A on the other hand applies generally, wherever it appears to a local authority that any person for whom they are under a duty or have a power to provide or secure the provision of community care services may be in need of such services. So it applies both to the provision of general social welfare services under section 12 and to the provision of residential accommodation with nursing under section 13A.
20. Finally it should be noted that section 22 of the National Assistance Act 1948 requires local authorities in England and Wales to charge for residential accommodation which has been provided or arranged by them under Part III of that Act. Section 87(3) of the 1968 Act provides that accommodation provided under that Act is to be regarded for that purpose as accommodation provided under Part III of the 1948 Act. So the charging provisions in section 22 and the regulations made under that section, which are now to be found in the 1992 Regulations, apply to Scotland also.
21. I take as my starting point Mr Bovey's argument that section 12A permits a local authority to take a person's financial resources into account in deciding whether or not to provide that person with residential accommodation with nursing under section 13A. The exercise which the local authority are directed to undertake is divided by section 12A(1) into two parts. They must first make an assessment of the needs of the person for the services which they can provide: section 12A(1)(a). Having regard to the results of that assessment, they must then decide whether the needs of that person call for the provision of any such services: section 12A(1)(b). Mr Bovey maintained that it was at the second stage that a person's financial resources could be taken into account, and that a local authority were under no obligation to provide any of these services to a person whose capital exceeded the capital limit for the purposes of section 22 of the National Assistance Act 1948.
22. The underlying principle is that eligibility for social services depends on need. But, as Mr Bovey pointed out, those who are able to do so are expected to pay for those services: R v Wandsworth London Borough Council, ex parte O  1 WLR 2539, 2555H per Hale LJ. These propositions are not in dispute. It is the next stage in his argument that gives rise to difficulty. He said that an assessment of the person's means was a necessary part of the process of deciding whether a person's needs "call for" the provision of any of the services. He said that the exercise to be undertaken under section 12A(1) was similar to that required by section 2(1) of the Chronically Sick and Disabled Persons Act 1970. In R v Gloucestershire County Council, Ex p Barry  AC 584, 597H-598B Lord Lloyd of Berwick said that among the factors that were relevant to the question whether it was necessary to make arrangements to meet a person's needs for the purposes of that exercise was the person's means. They might be being adequately met by a friend or relation, or he might be wealthy enough to meet his needs out of his own pocket. Mr Bovey maintained that the same approach was appropriate when a local authority were considering under section 12A(1)(b) whether the person's needs called for the provision of any community care services.
23. The First Division did not accept the argument that section 12A fell to be read in this way. In my opinion they were right not to do so. But I am unable to agree with the reasons which the Lord President gave for rejecting it at 2001 SLT 708, 714K-715G, paras 14 and 15. These reasons show that he was much influenced by the view that Parliament envisaged that the local authority have regard to the person's capital, not in the course of an exercise being conducted under section 12A, but in determining under section 12(3A) whether to provide assistance by way of residential accommodation for the purposes of section 12: p 715D-E. For reasons which I shall examine later, I do not share his view as to the nature of the exercise directed by section 12(3A). I also think that it has no bearing on a decision whether to provide residential accommodation with nursing under section 13A.
24. The Lord President said at p 714K-L that the force of the argument that an assessment of means was a necessary part of the exercise required by section 12A(1)(b) depended on the premise that the only stage at which a local authority could have regard to the individual's capital assets was in the course of the assessment procedure carried out under that section. He developed this point in the following passage at p 715B-D:
But he said that he had reached the conclusion that the terms of section 12(3A) indicated that Parliament envisaged that the local authority would have regard to the person's capital, not in the course of an exercise being conducted under section 12A, but in determining whether to provide assistance by way of residential accommodation "for the purposes of" section 12: p 715D-E.
25. It seems to me that this discussion raises three issues. The first issue ("the section 12 issue") is whether a determination of the question whether to provide assistance by way of residential accommodation under section 12 has anything to do with the provision of residential accommodation with nursing under section 13A. I have already said that section 13A appears to me to be a free-standing provision. I shall now need to look in more detail at section 12 in order to reinforce the proposition that this is so. The second issue ("the section 12(3A) issue") falls into two parts: (a) whether the direction in section 12(3A) applies where the question is not whether the local authority should provide a person with residential accommodation under section 12 but whether they should provide residential accommodation with nursing under section 13A; and (b) whether the direction to "disregard" capital under the limit in answering that question indicates that capital above the limit is to be brought into account at that stage. The third issue ("the section 12A issue") is whether, assuming that the exercise required by section 12(3A) does not apply to the provision of residential accommodation with nursing under section 13A, the local authority are entitled to have regard to the person's capital assets when they are considering under section 12A(1)(b) whether the person's needs "call for" the provision of this service by them.
The section 12 issue
26. As the side-note indicates, section 12 is concerned with the general social welfare services of local authorities. Subsection (1), whose terms I have already quoted, sets out in general terms the various ways in which social welfare may be promoted. These include the provision or arranging for the provision of residential accommodation. The concluding words of the subsection identify the persons to whom assistance in kind or cash may be given. They may be given to "any relevant person." Prior to its amendment by section 105(4) of and paragraph 15(11) of Schedule 4 to the Children (Scotland) Act 1995 the concluding words of this subsection referred to "the persons specified in the next following subsection."
27. Section 12(2) is in these terms:
Prior to its amendment by section 105(4) of and paragraph 15(11) of Schedule 4 to the Children (Scotland) Act 1995 this subsection began with the words "The persons specified for the purpose of the foregoing section are". Paragraph (a), which dealt with children, has now been deleted. Paragraph (b), which deals with persons in need requiring assistance, remains. In my opinion the effect of section 12(2) is to define the persons to whom the local authority may provide the services mentioned in section 12(1).
28. A person cannot qualify as a "relevant person" for the purposes of section 12 unless he is "in need requiring assistance" in kind or in cash. This is an important phrase, as it provides the context for section 12(3A). It has two components. The person must be a person in need. And he must be person requiring assistance. The fact that these components refer to different things can be demonstrated in the following way.
(a) "in need"
29. The persons specified in section 12(2) prior to its amendment by the 1995 Act were (a) children requiring assistance and (b) persons in need requiring assistance. The expression "persons in need", which was a condition that had to be satisfied to bring the person in under paragraph (b), was defined in section 94(1) in these terms:
Paragraph (c) of that definition was repealed by the Housing (Homeless Persons) Act 1977, but the remainder of the definition remains in force. It has to be read together with section 12(6), which was inserted by paragraph 10(5) of Schedule 9 to the National Health Service and Community Care Act 1990, which provides:
These various definitions seem to me to be directed exclusively to the question whether the person was a person "in need." For an answer to the question whether a person in need is also a person "requiring assistance" it is necessary to look elsewhere in section 12.
(b) "requiring assistance"