QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of ZYN
|- and -
|Walsall Metropolitan Borough Council
David Lock QC (instructed by Walsall MBC) for the Defendant
Hearing dates: 14 April 2014
Crown Copyright ©
Mr Justice Leggatt:
The Council's charging policy
"If a service user has over £23,250 in capital and savings, or chooses to fund their care themselves, or chooses not to disclose their financial circumstances to the council, they will pay the full cost of their care."
Although worded slightly differently, the policy applicable from 1 April 2011 until 31 July 2012 was to similar effect.
The legal framework for charging for community care services
"61. Councils may take account of a user's savings or other capital in assessing their resources, but are not obliged to do so. …
62. Savings may be taken into account to calculate a tariff income on the same basis as set out in the Charges for Residential Accommodation Guidance (CRAG) in LAC(99)9. Users with savings of more than the upper limit may be asked to pay a full charge for the service. These savings levels will be updated automatically in line with any uplifts in CRAG. Councils may wish to set higher savings limits or more generous charging policies than those specified in CRAG for users with savings, but should not set lower limits.
63. The value of the main residence occupied by the user should not be taken into account for charges for non-residential services, but other forms of capital may be taken into account, as set out in CRAG."
"This wording is not happily expressed. But in our view it means that the CRAG rules for determining what capital should be taken into account are imported in their entirety, on the footing that local authorities have a discretion to treat a person's capital more generously. It follows that, if CRAG stipulates that certain items of capital are to be disregarded, then the Fairer Charging Policy requires the local authority to exercise its discretion in the same way."
"Any amount which—
(a) falls within paragraph 44(2)(a), and would be disregarded under paragraph 44(1)(a) or (b), of Schedule 10 to the Income Support Regulations;"
"(1) Any sum of capital to which sub-paragraph (2) applies and—
(a) which is administered on behalf of a person by the High Court or the County Court under Rule 21.11(1) of the Civil Procedure Rules 1998 or by the Court of Protection; [or]
(b) which can only be disposed of by order or direction of any such court ...
(2) This sub-paragraph applies to a sum of capital which is derived from—
(a) an award of damages for a personal injury to that person; ..."
The Court of Protection
"There shall continue to be an office of the Supreme Court, called the Court of Protection, for the protection and management, as provided by this Part of this Act, of the property and affairs of persons under disability ..."
Section 93(1) made provision for the Lord Chancellor to nominate judges to sit in the Court of Protection.
"A person appointed as receiver for a patient shall do all such things in relation to the property and affairs of the patient as the judge, in the exercise of the powers conferred on him by sections 95 and 96 above, orders or directs him to do and may do any such thing in relation to the property and affairs of the patient as the judge, in the exercise of those powers, authorises him to do."
"(1) There is to be a superior court of record known as the Court of Protection.
(6) The office of the Supreme Court called the Court of Protection ceases to exist."
"Section 45 of the Act sets up a specialist court, the Court of Protection, to deal with decision-making for adults (and children in a few cases) who may lack capacity to make specific decisions for themselves. The new Court of Protection replaces the old court of the same name, which only dealt with decisions about the property and financial affairs of people lacking capacity to manage their own affairs. As well as property and affairs, the new court also deals with healthcare and personal welfare matters. These were previously dealt with by the High Court under its inherent jurisdiction."
"The court will appoint a deputy to manage a person's property and affairs (including financial matters) in similar circumstances to those in which they would have appointed a receiver in the past."
The orders appointing a receiver / deputy for ZYN
"The deputy may withdraw a sum not exceeding £50,000 a year from the funds of [ZYN] for her use and benefit without needing to obtain the prior approval of the Court of Protection"
i) Does paragraph 44 apply to the 'new' Court of Protection?
ii) If so, does capital managed by a deputy appointed by that court fall within paragraph 44(1)(a)?
iii) Does all of the capital of ZYN fall within paragraph 44(1)(b)?
Meaning of the "Court of Protection"
Historical and updating interpretations
"The first point to be borne in mind is that the Act must be construed as if one were interpreting it the day after it was passed. … The word 'action' mentioned in the section in question was not applicable, when the Act was passed, to the procedure of the Admiralty Court. Admiralty actions were then called 'suits' or 'causes'; moreover the Admiralty Court was not called and was not one of His Majesty's Courts of Law."
"If the language can change its meaning to accord with changing social attitudes, then a decision on the meaning of a word in a statute before such a change should not continue to bind thereafter, at all events in a case where the courts have constantly affirmed that the word is to be understood in its ordinary accepted meaning."
Another 25 years on, the House of Lords held in Fitzpatrick v Sterling Housing Association Ltd  1 AC 27 that a tenant's homosexual partner was a member of his "family" within the meaning of the equivalent provision of the Rent Act 1977.
"It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law."
"There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now. The meaning of 'cruel and unusual punishments' has not changed over the years since 1689, but many punishments which were not then thought to fall within that category would now be held to do so."
"Of course, no one supposes that the legislature intended to refer specifically to telephones many years before they were invented, but it is highly probable that they would, and it seems to us clear that they actually did, use language embracing future discoveries as to the use of electricity for the purpose of conveying intelligence."
Is an updating interpretation appropriate in this case?
Inferences from subsequent legislation
"The term 'telegraph' shall, in addition to the meaning assigned to it in the Telegraph Act 1863, mean and include any apparatus for transmitting messages or other communications by means of electric signals."
It is clear that the enactment of this provision required the courts to give a different meaning to the term "telegraph" in the 1863 Act to that which it previously had.
"I think it is clearly established in A-G v Clarkson that subsequent legislation on the same subject may be looked to in order to see what is the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier."
In Ormond Investment Co Ltd. v Betts  AC 143 at 156, Lord Buckmaster approved this statement as "an accurate expression of the law, if by 'any ambiguity' is meant a phrase fairly and equally open to diverse meanings". See also In re Macmanaway  AC 161, 177; and Motala v A-G  1 AC 281, 291.
"Although Parliament may, in 1969, have been mistaken as to the existing law, one should assume that it was not so mistaken; in the absence of clear words, one should seek to construe the earlier Act so as to accord with Parliament's understanding of its effect."
Is such an inference appropriate in this case?
Is ZYN's capital administered by the Court?
"(a) by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or
(b) appoint a person (a "deputy") to make decisions on P's behalf in relation to the matter or matters."
"A deputy is to be treated as P's agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part."
It appears, however, that this provision merely makes express in relation to a deputy what was already regarded as implicit in relation to a receiver. Thus, the Explanatory Notes to the 2005 Act (at paragraph 73) say in relation this provision:
"Case law has established that receivers appointed by the original Court of Protection under Part 7 of the Mental Health Act 1983 are agents but it is considered helpful to make statutory provision to that effect in relation to deputies."
There is therefore no difference between the two regimes in terms of whether the receiver / deputy is to be treated as the agent of the person who lacks capacity.
"The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2)."
Can the capital of ZYN only be disposed of by an order of the court?