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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for Health v Beeson, Personal Representative of [2002] EWCA Civ 1812 (18 December 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1812.html
Cite as: [2002] EWCA Civ 1812
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(The Honourable Mr Justice Richards)
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE WALLER
and
LORD JUSTICE LAWS
____________________
| The Secretary of State for Health |
Appellant |
|
| - and - |
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| The Personal Representative of Christopher Beeson |
Respondent |
____________________
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard Drabble QC and Mr David Wolfe (instructed by Conrad Haley) for the Respondent
____________________
Crown Copyright ©
- This is an appeal, brought with permission granted by the judge below, against part of the judgment of Richards J given in judicial review proceedings in the Administrative Court on 30 November 2001, when he quashed a decision of the Dorset County Council ("the Council") of 9 October 2000 to the effect that a Mr Christopher Beeson ("Mr Beeson") had deprived himself of certain property belonging to him in circumstances such that the value of the property fell (under legislative provisions which we will describe) to be taken into account in assessing Mr Beeson's ability to pay for residential accommodation arranged for him by the Council pursuant to Part III of the National Assistance Act 1948 ("the 1948 Act").
- The original claimant in the judicial review proceedings had been Mr Beeson himself. However Mr Beeson died, aged 95, after the conclusion of argument before Richards J but before delivery of judgment. Considering that the issues in the case affected the interests of Mr Beeson's estate and were in any event of some general importance, the judge directed that the claim continue with the substitution of Mr Beeson's personal representatives as claimants. They are the respondents to the appeal.
- The appeal is brought not by the Council (who were of course the defendants to the judicial review), but by the Secretary of State as an interested party. He was joined in the proceedings below so that he might respond to a particular argument based on Article 6 of the European Convention on Human Rights ("ECHR"); and it is only the Convention aspects of the case that are engaged in these appeal proceedings. There is a cross-appeal which as pleaded concerned the judge's approach both to Article 6 and Article 14 ECHR; however in the course of his reply Mr Drabble QC for the respondents, in our view entirely rightly, abandoned the points relating to Article 14 and we need say no more about them. We will of course explain the live issues in due course.
- It is not we think necessary to cite any part of the text of the Human Rights Act 1998 ("HRA"), which as is well known incorporated, in the manner there provided, the principal provisions of ECHR into domestic law. As for the Convention itself, Article 6(1) provides in part:
- It is convenient next to set out the material provisions of Part III of the 1948 Act as they stood at the material time [ss 21(2A) and (2B) have since been amended].
- We should next set out s.47(1) of the National Health Service and Community Care Act 1990 ("NHSCCA"):
- Then s.7B of the Local Authority Social Services Act 1970 ("LASSA"):
- Now we may turn to the relevant subordinate measures. First, we should indicate that the Secretary of State has given approvals and directions under s.21(1) of the 1948 Act. These were published as Appendix 1 to Department of Health Circular No.LAC(93)10. By paragraph 2(1)(b) local authorities were directed
- The National Assistance (Assessment of Resources) Regulations 1992 ("the 1992 Regulations") were made under s.22(5) of the 1948 Act. They 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:
- Then there are the provisions made by the Secretary of State under s.7B(1) and (3) of LASSA. Under s.7B(1) the Secretary of State made the Local Authority Social Services (Complaints Procedure) Order 1990 requiring local authorities to establish a complaints procedure. At the same time he issued the Complaints Procedure Directions 1990 ("the Directions") under s.7B(3), which came into force on 1 April 1991. Paragraph 2 is an interpretation provision. In view of what follows we should set out the definition of "panel" given in paragraph 2(1):
- It is convenient at once to highlight two features of this scheme which are of some importance for the issues in the case, though in truth they are plain enough from the words. First, while in this case the panel was convened by the Council to consider a question whether Mr Beeson had (within the meaning of regulation 25(1)) deprived himself of capital for the purpose of decreasing the amount that he might be liable to pay for his accommodation, the Directions read with LASSA s.7B(1) and (3) are clearly intended to provide a compulsory means of resolving complaints across the board of a local authority's social services functions. Thus in relation to the functions conferred by Part III of the 1948 Act the procedure given by the Directions is to be deployed to address matters as diverse as the existence in any particular case of the need referred to in s.21(1)(a), whether accommodation is "otherwise available" within that subsection, whether the authority have properly applied the s.21(2A) disregard, and so forth. Secondly, the scheme reposes no final power of decision upon the panel. They make recommendations under paragraph 8(1). The authority itself decides what to do in light of the recommendations: paragraph 8(4). In this case, as is no doubt routine at least for certain classes of case, the Council's decision under paragraph 8(4) was taken by the Director of Social Services.
- We adopt with gratitude the succinct summary given by the judge below at paragraphs 15 31 of his judgment:
- Before Richards J there were two dimensions to the case. It was first said that the Council had failed to apply the correct construction of regulation 25(1) in reaching the decision they did. The judge held plainly correctly: indeed it was common ground that regulation 25(1) required the decision-maker to ascertain the claimant's subjective purpose in depriving himself of capital. The regulation bites "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" (Yule v South Lanarkshire Council [2000] SLT 1249, paragraph 29). Richards J concluded (paragraph 37) that this test had not been applied, or not applied with sufficient clarity. That was of course enough to justify an order to quash the Council's decision. As we have foreshadowed, there is no appeal against that conclusion. The second dimension in the case concerned Mr Beeson's Convention rights under Article 6(1). Richards J held (1) that the decision under regulation 25 involved or gave rise to a determination of Mr Beeson's civil rights for the purposes of Article 6(1) (paragraphs 59 61 and 68 of the judgment), and (2) that the availability of judicial review did not suffice to remedy, for the purpose of Article 6(1), the want of independence and impartiality which arose (as was and is common ground) from the fact that the Directions only required one member of the panel to be independent and in this case two of the members were councillors (paragraphs 95 98).
- Mr Giffin on behalf of the Secretary of State challenges both of these conclusions on this appeal. The judge's further finding, that all that was required for compliance with Article 6(1) was the appointment of a complaints panel comprised entirely of independent members (paragraphs 99 101), is the target of Mr Drabble's cross-appeal. The submission is that since under the Directions the panel only makes recommendations, and the actual decision is taken by the authority in the shape of the Director of Social Services, a guarantee of the panel's independence and impartiality is not enough for Article 6. The decision-maker himself must be independent and impartial.
- As will be obvious, this appeal requires the court to revisit what has become well-trodden ground: the impact of ECHR Article 6 upon a statutory regime in which decisions affecting the distribution of particular public benefits or protections (or, sometimes, the imposition of burdens) are taken by an internal or administrative body or official, subject to supervision of the decision's legality by judicial review or an equivalent statutory appeal. The questions which most characteristically arise in litigation relating to such a scheme are the very questions which face us here: (1) does the scheme's operation involve a determination of the claimant's "civil rights and obligations" within the meaning of Article 6(1)? and (2) if so, is the second-stage adjudication sufficient, taking the decision-making process as a whole, to "cure" the want of compliance with Article 6 inherent in the first stage, it being accepted that the internal or administrative decision-maker lacks the independence which Article 6(1) requires? Despite the breadth and depth of the treatment of underlying principle in the decision of the House of Lords in Alconbury [2001] 2 WLR 1389, which was followed by later cases in this court such as McLellan [2002] 2 WLR 1448 and Runa Begum [2002] 1 WLR 2491 (to which in light of the arguments addressed to us we shall have to return), a stream at any rate, more than a trickle of litigation on these issues in the Administrative Court continues to run. There is some danger, we think, of undermining the imperative of legal certainty by excessive debates over how many angels can stand on the head of the Article 6 pin. This feature and that feature of the scheme in hand are prayed in aid pro and con the contention that the citizen's rights are engaged, and that the Article 6 standards have not been met. In Runa Begum, in a judgment with which the Lord Chief Justice and Dyson LJ agreed, Laws LJ said (in the context of the homeless persons legislation) that "the court has to make a judgment as to the engagement of 'civil rights and obligations' which cannot be arrived at by the application of any brightline rule" (paragraph 25). And this we think has generally been the case; but it is not satisfactory. Of course it is a virtue of the common law that it leans against over-rigid classifications. But we need to make the effort of imagination and legal reasoning which will achieve a proper balance between this virtue and that of legal certainty.
- It is convenient to start with Alconbury. The central passage in Lord Hoffmann's speech, which is I would suggest to be found at paragraphs 78 87 and 106 110, is of necessity lengthy, and has been much cited in the later cases. For those reasons, with great respect we hope we may be forgiven if we attempt a summary rather then set it out in full. It seems to us, then, to uncover these following propositions.
- Now in the context of these public law schemes involving decisions made at two tiers, the first in a broad sense administrative, the second certainly judicial, it is in our judgment necessary to expose two points of contrast between this evolution of the jurisprudence of the European Court of Human Rights and the approach taken by the common law. The first is that whereas under the Convention it is a necessary condition for the subjection of the exercise of power by public authorities to the rule of law that the decision under scrutiny should at least affect the citizen's private legal rights or obligations, the common law treats such a consideration with indifference. Whether or not executive action touches the citizen's rights in private law is at common law irrelevant to the availability of judicial review to test the action's legality. (Private rights may be material to satellite questions of standing and damages, but it is unnecessary to take time with those.) The basis of judicial review rests in the free-standing principle that every action of a public body must be justified by law, and at common law the High Court is the arbiter of all claimed justifications.
- The second point of contrast is that whereas upon the approach in Strasbourg the required intensity of review by an independent court may be the greater according to the depth of factual dispute involved in the case, our courts have consistently recognised that where Parliament has given to the first instance decision-maker the task of making those judgments and findings of fact which have to be made in order that the scheme in question may be properly administered in accordance with the legislature's intentions, the court on judicial review will not ordinarily substitute its own view of the facts for that of the primary decision-maker; and this is seen to be a virtue: if it were to do so, it would usurp the role of Parliament's delegate, and thus affront the sovereignty of the legislature. It is true that for some years before incorporation of ECHR, judicial review in some fields began more and more to penetrate the merits of decisions subjected to its scrutiny; but that was because the common law was more and more inclined to give autonomous recognition to the notion of constitutional rights. It did not, before the advent in our law of Article 6, vouchsafe any more intrusive forms of judicial review by reason only of the fact that the subject-matter of the decision reviewed was laden with factual disputes.
- We are bidden by HRA s.2 to take account of the decisions of the European Court of Human Rights. They are not precedent as that term is meant in the common law rules of stare decisis. Clearly, however, the integrity of our law as a whole presses in favour of shared principle between London and Strasbourg, so long as we recognise that the reasoning in Strasbourg cases is sometimes fashioned by considerations having to do with the civilian legal tradition which may not always speak to us very loudly; of course we will recognise also the riches in the Strasbourg jurisprudence which are ours to draw upon. In the present context it seems to us that our own tradition of judicial review of public authority is mirrored by the extended sense given in Strasbourg to the phrase "determination of [his] civil rights and obligations": notwithstanding that, by virtue of the first contrast between the ECHR and our domestic system to which we pointed, the presence or absence of such rights and obligations in an administrative law case is by the common law merely the fifth wheel of the coach. In the result we should by no means, in our judgment, be at pains in any case to lean towards a conclusion that civil rights are not engaged. Obviously such a conclusion would not in any event exclude domestic judicial review. We do not think that by shutting off the application of Article 6 on the footing that the case does not involve civil rights we should be content with what would follow: that is to say, an isolated, even insular, view of what the rule of law, and therefore the practicalities of judicial review, require so that substantial justice may be done. In our judgment the real substance of legal debate in these cases involving two-tier decision-making for the purposes of a statutory regime does not consist in the barren question barren in our municipal law whether the citizen's private law civil rights or obligations are engaged. The result in practice of the administration of such regimes, in any given case, will usually be that the citizen's private law rights are affected in one way or another, however indirectly. Rather, the real substance of legal debate in these cases consists in the rich question how far in the end the decision of the issues arising must be confided to an independent judge.
- In dealing with that latter question, we consider that we are fully entitled, consistently with our obligations under HRA s.6 which requires us to act compatibly with the Convention rights, to accord in any given statutory scheme considerable weight to the right and duty of Parliament's delegate to exercise to the full his jurisdiction to take decisions in the administration of the scheme. Of course there is no rubber stamp; if the first instance judgment of a criminal matter were by statute given to an administrative authority, that would be an irredeemable violation of Article 6; so also, if the adjudication of ordinary civil disputes in contract and in tort between one citizen or another (or for that matter between citizen and State) were to any extent taken from the independent courts.
- Where, however, the case concerns a statutory scheme established for the distribution of public bounty or (sometimes: these instances will be more difficult) the imposition of burdens on the citizen, there are particular considerations which militate in favour of allowing the mechanisms established by the relevant Act to operate as the Act provides. First, the will of Parliament is itself a potent factor. Secondly, considerations of policy, certainly of discretion and of judgment, will usually be involved. It is a commonplace feature of statutory regimes of the kind which attract litigation of this sort that an official or officials of a public body very often a local authority has to arrive at some sort of judgment which gives priority in the allocation of scarce public resources to one claimant over another. He may have seemingly objective criteria to deal with on the face of the statute; in reality he may have to consider how disadvantaged is one candidate compared with others. Such an exercise is far different from that of deciding facts: deciding, that is to say, what events happened and what did not. Thirdly, and this is very much bound up in the second consideration which we have just described, the task of decision-making will very often, and sometimes systematically, affect the interests of third parties who are not before the decision-maker: other potential or actual claimants; even the allocation of the local authority's resources in other areas altogether. The evaluation of such matters is closer to the function of the administrator than the judge.
- Thus while upon the first contrast we drew between Strasbourg and the common law relating to the presence or absence of civil rights and obligations there is in our judgment every reason to align our approach to that taken in the European Court of Human Rights, upon the second relating to the required intensity of independent judicial control we think for the reasons we have given that it will usually be right to respect the particular public law regime as it has been established by Parliament, and we would expect that successful challenges in such cases on the ground of insufficiency of judicial review will be relatively infrequent.
- We acknowledge that there remains force in the distinction between fact-finding and the application of judgment and discretion. In a passage in his judgment in Runa Begum, to which attention has been drawn in the course of argument, Laws LJ said this:
- In light of all these observations, it will be no surprise that we would without hesitation uphold the judge's conclusion that Mr Beeson's civil rights were engaged in the decision-making process in this case, so that the standards and discipline of Article 6 apply. But it is important to be clear as to the basis on which that is so. With respect we do not, for reasons we shall shortly explain, agree with the reasoning of Richards J at paragraphs 60 61 in the court below:
- The reasoning of the judge in the passage we have cited appears to us to identify, as the content of the civil right or obligation in play for the purpose of Article 6, the "means-testing exercise in which a wrong decision would expose him to a liability to make a payment which he could not afford to make". This approach is on all fours with Mr Drabble's express submission that the civil right involved is either Mr Beeson's "right to a rebate" under s.22 of the 1948 Act, or his right to have the owner of the relevant premises paid by the Council under s.26 rights denied to Mr Beeson by the Council's adverse decision under regulation 25.
- We may state at once our firm view that this is altogether too narrow an approach. It suggests that in a case where regulation 25 is not involved (and we assume such cases are the majority), the issue whether a person is entitled to accommodation under Part III of the 1948 Act might not engage that person's civil rights and therefore Article 6 at all. The judge's approach dissects the scheme, when it needs to be looked at as a whole (see Runa Begum at paragraph 40, cited above at paragraph 27).
- We should notice that Mr Drabble advanced substantial argument to support the view that it is appropriate to look at the regulation 25 issue on its own, almost (he did not use this language) as a lis in itself, separate from the prior questions arising under Part III of the 1948 Act whether Mr Beeson was in need for the purposes of s.21(1)(a), and what provision should be made for him. He submitted that the scheme of the Act involved two quite distinct stages, which in shorthand he labelled "need" and "charging". He prayed in aid the recent decision of their Lordships' House in Robertson v Fife Council [2002] UKHL 35, in particular for the dictum of Lord Hope of Craighead at paragraph 53:
- Upon the question whether Article 6 applies at all, in our judgment this case and others like it systematically engage the civil rights of the affected individual. They do so on a very simple basis: they are concerned with the question, what premises he will occupy as his home and upon what terms; and although for all we know a person in Mr Beeson's position may stand to be granted no more than a bare licence of premises which may be offered him, still the issue whether or not he may get such an entitlement affects his rights in private law. At least it does so in the extended sense which, as Alconbury demonstrates, has been accorded by the Strasbourg court to the phrase "determination of [his] civil rights and obligations" in Article 6(1). We do not think it necessary to say anything more about the applicability in principle of Article 6.
- We have already said that it was common ground that the first decision or rather recommendation by the panel lacked the independence and impartiality required by Article 6 because the Directions required only one panel member to be independent, and in this case two of the members were councillors. So much is acknowledged by Richards J at paragraph 71 of his judgment. But in deciding the question whether the decision-making process satisfies the Article 6 standard in light of the availability of judicial review and taken as a whole, it is important to have in mind that even though the first decision-maker does not independently satisfy Article 6 the quality of his decision is by no means thereby rendered nugatory or valueless. We would repeat what Laws LJ said in Runa Begum at paragraph 37 - 38, which deploys also part of the reasoning of Waller LJ in McLellan:
- In this present case we have seen no evidence that the panel could not or would not arrive at a fair and reasonable recommendation. It is by no means to be assumed that the two Council members would have entertained, even subconsciously, a disposition towards the protection of Council funds. To this Mr Drabble's reply (which may conveniently be collected at paragraph 31 of his skeleton argument) is in substance that actual bias is not required to show a violation of Article 6. That is of course right; but it seems to us to miss the real point in issue here, namely whether, given the quality of the first-instance process such as it is, the addition of judicial review satisfies Article 6. If there is no reason of substance to question the objective integrity of the first-instance process (whatever may be said about its appearance), it seems to us that the added safeguard of judicial review will very likely satisfy the Article 6 standard unless there is some special feature of the case to show the contrary. Here there is not.
- Mr Drabble draws attention in this context to the fact that the panel is not the decision-maker. As we have made clear the actual decision was taken by the Council's Director of Social Services. But on the evidence he is no more affected by actual, as opposed to apparent, bias than are the Council members of the panel.
- On this part of the case Mr Giffin for the Secretary of State was at pains to emphasise the discretionary or judgmental elements in the scheme of Part III of the 1948 Act. Once it is recognised that the scheme has to be looked at as a whole, these are very considerable. The question whether a person is in need of care and attention for the purposes of s. 21(1)(a) of the 1948 Act is plainly not a hard-edged issue of fact. Nor is the question what accommodation may be "otherwise available" within the same subsection a provision upon which a good deal of argument was addressed to us. Mr Giffin drew attention to what was said by Moses J in Ali [2002] EWHC Admin 1511 at paragraph 112, dealing with the same statutory scheme:
- In our judgment the scheme here is exactly of the kind where the first decisions are properly confided within the public body having responsibility for the scheme's administration. Difficult issues of judgment will arise; and difficult balances will have to be struck. We acknowledge that in this particular case issues of credibility arose for decision, and were important to the decision. It is plain however that that circumstance will not of itself require, as the price of compliance with the Article 6 standard, the addition of a strictly independent adjudicative process empowered to re-decide the facts. Mr Giffin cites Kingsley v UK 33 EHRR 13 and X v UK 25 EHRR 88, which generally support that position. Once it is accepted that the operation of the statutory scheme has to be looked at as a whole, the fact that this or that particular instance may be specially burdened with factual dispute cannot affect the general legality of the arrangements in place for deciding issues of entitlement.
- We would hold that the Panel process, culminating in a recommendation thereafter followed by a decision made by the Director of Social Services, since it is coupled with the availability of judicial review, meets the Article 6 standards. Certainly it did so in this case. In our opinion it generally does so; but of course, in any particular case there may be special circumstances calling for special scrutiny.
- Accordingly, we would allow the Secretary of State's appeal. We should no doubt receive argument as to what orders should be made.
- We would have dismissed the cross-appeal, had it arisen. It seems to us that the Director would as a matter of public law be so circumscribed by the Panel's recommendation that the establishment of a wholly independent Panel, as opposed to one independent member on a panel of three, would (taken with the availability of judicial review) have well satisfied Article 6.
Lord Justice Laws:
This is the Judgment of the Court
INTRODUCTORY
THE LEGISLATION
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law "
"21(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
(2) In making any such arrangements a local authority shall have regard to the welfare of all persons for whom accommodation is provided, and in particular to the need for providing accommodation of different descriptions suited to different descriptions of such persons as are mentioned in the last foregoing subsection.
(2A) In determining for the purposes of paragraph (a) of subsection (1) of this section whether care and attention are otherwise available to a person, a local authority shall disregard so much of a person's capital as does not exceed the capital limit for the purposes of section 22 of this Act.
(2B) For the purposes of subsection (2A) of this section -
(a) a person's capital shall be calculated in accordance with assessment regulations in the same way as if he were a person for whom accommodation is proposed to be provided as mentioned in subsection (3) of section 22 of this Act and whose ability to pay for the accommodation falls to be assessed for purposes of that subsection; and(b) 'the capital limit for the purposes of section 22 of this Act' means the amount for the time being prescribed in assessment regulations as the amount which a resident's capital (calculated in accordance with the regulations) must not exceed if he is to be assessed as unable to pay for his accommodation at the standard rate;
and in this subsection 'assessment regulations' means regulations made for the purposes of section 22(5) of this Act.
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 liability to pay, a local authority shall give effect to regulations made by the Secretary of State for the purposes of this subsection.
(5A) If they think fit, an authority managing premises in which accommodation is provided for a person shall have power on each occasion when they provide accommodation for him, irrespective of his means, to limit to such amount as appears to them reasonable for him to pay the payments required from him for his accommodation during a period commencing when they begin to provide the accommodation for him and ending not more than eight weeks after that.
26(1) Subject to subsections 1A and 1B below [viz. requirements as to compliance with provisions of the Registered Homes Act 1984] arrangements under section 21 of this Act may include arrangements made with a voluntary organisation or with any other person who is not a local authority where -
(a) that organisation or person manages premises which provide for reward accommodation falling within subsection (1)(a) of that section, and(b) the arrangements are for the provision of such accommodation in those premises.
(2) Any arrangements made by virtue of this section shall provide for the making by the local authority to the other party thereto of payments in respect of the accommodation provided at such rates as may be determined by or under the arrangements and subject to subsection (3A) below the local authority shall recover from each person for whom accommodation is provided under the arrangements the amount of the refund which he is liable to make in accordance with the following provisions of this section.
(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 twenty-two 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 twenty-two 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).
(3A) Where accommodation in any premises is provided for any person under arrangements made by virtue of this section and the local authority, the person concerned and the voluntary organisation or other person managing the premises (in this subsection referred to as 'the provider') agree that this subsection shall apply -
(a) so long as the person concerned makes the payments for which he is liable under paragraph (b) below, he shall not be liable to make any refund under subsection (3) above and the local authority shall not be liable to make any payment under subsection (2) above in respect of the accommodation provided for him;(b) the person concerned shall be liable to pay to the provider such sums as he would otherwise (under subsection (3) above) be liable to pay by way of refund to the local authority; and(c) the local authority shall be liable to pay to the provider the difference between the sums paid by virtue of paragraph (b) above and the payments which, but for paragraph (a) above, the authority would be liable to pay under subsection (2) above.
(4) [Subsection] 5A of the said section twenty-two shall, with the necessary modifications, apply for the purposes of the last foregoing subsection as [it applies] for the purposes of the said section twenty-two.
"
"(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority -
(a) shall carry out an assessment of his needs for those services; and(b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any services."
Community care services include services that a local authority may provide under Part III of the 1948 Act: see NHSCCA s.46(3).
"(1) The Secretary of State may by order require local authorities to establish a procedure for considering any representations (including any complaints) which are made to them by a qualifying individual, or anyone acting on his behalf, in relation to the discharge of, or any failure to discharge, any of their social services functions in respect of that individual.
(3) A local authority shall comply with any directions given by the Secretary of State as to the procedure to be adopted in considering representations made as mentioned in subsection (1) above and as to the taking of such action as may be necessary in consequence of such representations.
"
The expression "social services functions" includes the provision of accommodation under ss.21 ff of the 1948 Act: see LASSA s.1A and Schedule 1. And it is plain from s.7B(2), which we need not set out, that Mr Beeson was a "qualifying individual".
" to make arrangements under section 21(1)(a) of the [1948] Act in relation to persons who are ordinarily resident in their area and other persons who are in urgent need thereof,
to provide residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstance are in need of care and attention which is not otherwise available to them."
"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 [then there follow immaterial exceptions]."
Although it had no application to Mr Beeson (because he did not fall within the definition of "less dependent resident"), having regard to the nature of the argument we should also set out regulation 5:
"In assessing a less dependent resident's ability to pay for his accommodation a local authority need not apply Parts II to V of these Regulations (treatment of income, treatment of capital, liable relatives and students) if they consider it reasonable in the circumstances not to do so."
"'[P]anel' means a panel of three persons at least one of whom must be an independent person as defined in paragraph (3)".
Paragraph 2(3) provides:
"The expression 'independent person' in these Directions means a person who is neither a member nor an officer of that authority, nor, where the local authority have delegated any of its social services functions to any organisation, a person who is a member of or employed by that organisation, nor the spouse of any such person."
Part II of the Directions is headed "Representations and their Consideration", and we must reproduce most of it:
"Local authority action
4(1) The local authority shall appoint one of their officers to assist the authority in the co-ordination of all aspects of their consideration of the representations.
(2) The local authority shall ensure that all the members or officers involved in the handling of representations under section 7B(1) are familiar with the procedures set out in these Directions.
Preliminaries
5(1) Where a local authority receives representations from any complainant they shall attempt to resolve the matter informally.
(2) If the matter cannot be resolved to the satisfaction of the complainant, the local authority shall give or send to him an explanation of the procedures set our in these Directions and ask him to submit a written representation if he wishes to proceed.
(3) The local authority shall offer assistance and guidance to the complainant on the use of this procedure, or give advice on where he may obtain it.
Consideration by local authority
6(1) The local authority shall consider the representations and formulate a response within 28 days of their receipt, or if this is not possible, explain to the complainant within that period why it is not possible and tell him when he can expect a response, which shall in any event be within three calendar months of receipt of the representations.
(2) The representations may be withdrawn at any stage by the complainant, in which case the procedure set out in these Directions shall no longer apply to that case.
Notification of complainant and reference to panel
7(1) The local authority shall notify in writing the result of their consideration to -
(a) the complainant;(b) the person on whose behalf the representations were made, unless the local authority consider that that person is not able to understand it or it would cause unnecessary distress;(c) any other person who the local authority considers has sufficient interest in the case.
(2) If the complainant informs the local authority in writing within 28 days of the date on which the notification mentioned in paragraph (1) is sent to him that he is dissatisfied with that result and wishes the matter to be referred to a panel for review, the local authority shall appoint a panel (including any independent person) to consider the matter which the local authority shall refer to it.
(3) The panel shall meet within 28 days of the receipt of the complainant's request for review by the local authority to consider the matter together with any oral or written submissions as the complainant or the local authority wish the panel to consider.
Recommendations
8(1) Where a panel meets under direction 7, it shall decide on its recommendations and record them in writing within 24 hours of the end of the meeting.
(2) The panel shall send written copies of their recommendations to -
(a) the local authority;(b) the complainant;(c) if appropriate, the person on whose behalf the representations were made; and(d) any other person who the local authority considers has sufficient interest in the case.
(3) The panel shall record the reasons for their recommendation in writing.
(4) The local authority shall consider what action they ought to take, and notify in writing the persons specified in paragraph (1) [sic: it must be a misprint for ('2')] (b), (c) and (d) of the local authority's decision and of any action which they have taken or propose to take within 28 days of the panel's recommendation."
THE FACTS
"Mr Beeson had owned and occupied his house at 7 Brownlow Street, Weymouth for many years, first with his wife and then, after her death in 1989, on his own. It was his only major asset.
Mr Beeson suffered a stroke in March 1997 at the age of 90. He was discharged from hospital in early April and thereafter received intensive home care three times a day, comprising personal care, meal preparation, shopping, cleaning and laundry. For the previous eight years or so he had been in receipt of home care comprising assistance with domestic tasks for three hours a week.
On 14 April 1997, about a week after his discharge from hospital, he transferred the house to his son by deed of gift. The explanation later given was a concern on his part that following the breakdown of his son's marriage his son might become homeless; he wanted his son to have somewhere to move to should the need arise.
With the benefit of the care he was receiving Mr Beeson was able to continue to live in the house for the next two years. In April 1999, however, he was admitted to hospital in a state of collapse and exhaustion. After a period of recuperation he returned home in May, but he became weaker and was re-admitted to hospital in August after a fall. Thereafter he lost confidence in his ability to look after himself. On 3 September 1999 he was assessed by the council as needing residential care.
In a letter dated 9 September 1999 in support of an application for funding the residential care, his son stated:
'Following the stroke [Mr Beeson] was advised that he was really in need of residential care at that point, but because of a strong determination on his part it was agreed that with certain adaptations to his living accommodation and a high level of care provision he could return home. As was said to me only last week by a Senior Social Worker, even two years ago it was "on a wing and a prayer" that he continued to live at home.'
On 20 October 1999 the son completed and submitted a formal application on behalf of his father for financial assistance with the cost of the residential placement. In that application he stated in relation to the transfer of the house: 'Transferred to son, as a result of stroke, in April 1997'.
A decision letter dated 25 October 1999 from the council's Social Services Directorate noted the transfer of the house by deed of gift in April 1997 and stated:
'Following careful consideration of this matter I am of the opinion that Mr Beeson has deprived himself of an asset with which he could have funded his residential care placement.
However, as this asset is in the form of a property, which is not immediately realisable, I would be prepared to fund the placement on an interim basis upon your consent to an equitable charge being raised on the property '
The letter referred to a right of 'appeal' through the complaints procedure [stage 3 in Richards J's nomenclature: paragraph 7(2) ff of the Directions]. Strictly the procedure is not one of appeal but a three-stage internal complaints procedure.
Mr Beeson's son invoked stage 1 of the complaints procedure [the reference here is to paragraph 5(1) of the Directions] by letter of 13 January 2000. The matter was considered by a Mrs Yates, whose decision was communicated in a letter dated 17 February 2000:
' Having considered your earlier correspondence, the financial assessment form, deed of gift and this Directorate's earlier involvement with your father's care, I am still of the opinion that your father deprived himself of an asset when he would have been aware that residential or nursing home care may have been an option for the future.'
Mr Beeson's son expressed his dissatisfaction with the decision in a letter of 7 March 2000, which was treated as a formal complaint under stage 2 of the procedure [paragraph 6(1) of the Directions]. There followed an investigation and interview by an officer who had not previously been involved in the matter, a Mrs Slade. In a letter dated 12 July 2000 she rejected the complaint:
'After consideration of all the information and documentation made available, my conclusion is to uphold the decision made by the Directorate, i.e. that your father deprived himself of an asset with which he could have funded his care.'
On 30 July 2000 Mr Beeson's son requested that the matter be reviewed by a panel. The panel appointed to carry out the review consisted of Mrs Jean Churchill (independent chairperson), Mr David Crowhurst (county councillor) and Mrs Sheila Poupard (county councillor). They held a meeting on 12 September at which Mr Beeson's son presented a prepared statement, a representative of the council's social services directorate 'presented the case for Social Services', and the members asked various questions of those present. Written notes of the meeting were prepared.
The statement read out by Mr Beeson's son referred to the fact that the council was claiming that a deliberate deprivation of assets took place in order to avoid paying for care which, in the council's view, was going to be inevitable. He took issue with that view, stating that 'the one certainty in my father's mind at the time of the transfer was that he was returning to live in and ultimately die in his home. The transfer of the property took place several weeks after his return home from hospital and at his request.' He repeated what had been set out in previous material, that the reasons for the transfer were that, since the death of his mother, his father had become increasingly reliant on him in all matters of finance, correspondence, household management and property maintenance. At the time in question, his father was particularly concerned that his marriage of 24 years had recently broken up, and his father's principal motivation in making the transfer was to ensure that he had a home. At the time of transfer there had been no indication from social services that residential care and funding was under consideration or ever likely to be needed.
The case for the social services directorate was that Mr Beeson was aged 90 when he had a stroke in March 1997. In the letter dated 9 September 1999, his son had referred to the advice at the time 'that he was really in need of residential care at that point' and to the recent comment of a senior social worker that 'even two years ago it was "on a wing and a prayer" that he continued to live at home.' In the light of those statements it was reasonable to expect that Mr Beeson would need residential care. The application for financial assistance in 1999 had stated that the property had been transferred to the son as a result of a stroke in April 1997. Health records showed that Mr Beeson had had further strokes since then. It was natural for Mr Beeson to want his son to have the property, but he would have inherited it in any case. There was no need for the property to be transferred, other than to avoid paying for residential care. In summary, the contention was that 'the transfer was made so soon after Mr Beeson's strokes that it was reasonable to assume that a deprivation of assets was intended' (para 3.13).
Among the questions asked by members of the panel were these, recorded at paras 3.16 and 3.17 of the notes of the meeting:
'Mr Crowhurst asked Mr Beeson whether he had understood in 1997 that if his father needed residential care he could be required to use his capital asset (i.e. his home) to fund this and that the local authority had a legal right to put a charge on the property. Mr Beeson said that neither he or his father knew this - it had never come into their thoughts.
Mr Crowhurst said that it was important to understand whether Mr Beeson had understood this, although he needed to make it clear that ignorance of the law is not an excuse. Mr Crowhurst asked what Mr Beeson senior would have assumed about how the fees would be paid if he had to go into residential care. Mr Beeson answered that his father was on income support and would have assumed that the fees would be covered. However it is unlikely that he would have thought that far, as Mr Beeson senior did not expect to enter residential care - he was "preparing to die" at home.'
After an exchange about the relevant legal provisions, the Finance Manager, Mrs Morton, 'quoted a legal ruling which said that local authorities could deem deprivation to have taken place if it could be shown that the avoidance of residential care charges was a significant motive in transferring a property' (para 3.25).
After the meeting the panel made findings as follows:
'The majority decision of the panel was:
(1) that there was deprivation of assets for the purpose of avoiding payment for accommodation;
(2) as a consequence, the appeal against the legal charge is not upheld, notwithstanding the time that had elapsed since the property was transferred.'
There followed the actual stage 3 decision, taken by the Director of Social Services. His letter dated 9 October stated:
'I have read the case file and correspondence and note that this matter has been carefully considered through all three stages of the Directorate's complaints procedure. As you will already be aware, the complaints panel upheld the original decision on deprivation of assets. I concur with that finding.'
The letter went on to clarify the position concerning the legal charge, stating that the council did not have authority to declare a legal charge on the property but was prepared to defer payment of the existing debt and to continue funding Mr Beeson's care if the son agreed to a legal charge on the property.
The Director, Mr Joannides, swore an affidavit relatively late in the course of the proceedings in which he set out a detailed account of the documents that he perused in making his decision, with comments on various of those documents and on his process of reasoning. He concludes:
i) 'I decided that at the time of the gift, it was reasonable for me to assume that the transfer had been arranged, largely, if not solely, as a means of avoiding any charges for residential care that may have been needed in the foreseeable future. I looked at all the circumstances of the deprivation of his home and concluded that it was reasonable for me to decide that avoiding residential charges was a significant motive in Mr C Beeson's mind when he did that '"
THE ISSUES IDENTIFIED
THE ISSUES CONFRONTED
(1) General
(1) For reasons which have to do with the Convention's origins and the characteristics of civilian legal systems, the scope of the phrase "civil rights and obligations" was intended in the beginning to be restricted to rights and obligations created by private rather than by public law.
(2) However, if the deployment of Article 6 rested there (we leave aside its application to criminal charges), the Convention would have been left naked when it came to the submission of public authorities to the jurisdiction of independent courts in any case where such private rights and obligations were not engaged. It would have meant that the Convention offered no general guarantee to secure the subjection of actions by public authorities, including and in particular the authority of central government, to the rule of law.
(3) But the European Court of Human Rights has in fact developed "a jurisprudence by which it has imposed a requirement that all administrative decisions should be subject to some form of judicial review" (paragraph 83); it has done so by applying "article 6(1) to administrative decisions on the ground that they can determine or affect rights in private law" (paragraph 79 my emphasis).
(4) While the attribution of this extended sense of "determination of [his] civil rights and obligations" has sufficed to bring most or all administrative or public law decisions within the fold of Article 6, the Strasbourg jurisprudence has not insisted that the review of such decisions by an independent court will only comply with the Convention standard if the reviewing court has full power not only to supervise the legality of the earlier decision, but also to re-decide the facts and merits for itself. The reviewing court must possess what has been called "full jurisdiction"; but that means no more nor less than "full jurisdiction to deal with the case as the nature of the decision requires" (paragraph 87). Thus to the extent that the subject-matter of the decision consists in judgments of policy, the first decision-maker need not be independent of the publicly accountable body of which he is a part (and on democratic grounds it may be better that he should not be independent), and conventional judicial review will satisfy Article 6. Where the first decision involves questions of primary fact the position may be different, but even there the first decision-maker's expertise and the safeguards surrounding his position, while not on their own sufficient for compliance with Article 6, may be effective to do so in combination with judicial review.
"40 [T]he extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole; that is the necessary setting for any intelligent view as to what is fair and reasonable. Where the scheme's subject-matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanisms for finding facts: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the terms loosely), and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will lie instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the Convention rights, will pay a degree of respect on democratic grounds to Parliament as the scheme's author."
We would not resile from this; the more any given statutory scheme is likely to give rise to fact-laden issues, the more Article 6 will require independent adjudication on the facts. We do not suggest that we can, or should, altogether close off the need for debate case by case in these instances of statutory schemes by the creation and application of what in Runa Begum I called brightline rules. But for the reasons we have given, we expect these debates to be fewer in number, there being clear good reasons why we should usually allow to such schemes the legal space which Parliament has given them.
(2) This Case
(a) Does Article 6 apply at all?
"60 In my view it is necessary, in the application of the Convention, to focus carefully on the facts and issues relevant to the particular case. In the present case the assessment of need had been made and was not in dispute. A duty to provide Mr Beeson with accommodation had arisen under the statute and a decision had been taken as to the accommodation to be provided. The provisions relating to the making of payments or the recovery of refunds had been engaged. The regulations concerning the assessment of his ability to pay had not been disapplied under regulation 5. Although it was for Mr Beeson to satisfy the council under s.22(3) or s.26(3) that he was unable to pay or to make a refund at the full rate, a crucial component in that decision was the determination under regulation 25 as to whether he had deprived himself of his house for the purpose of decreasing the amount that he might be liable to pay. If his case with regard to purpose was accepted, then he was entitled not to have the value of the house taken into account (and in reality, as the other circumstances of the case make clear, he could not reasonably be required to pay at the full rate). If his case was rejected, he was liable to have the value of the house taken into account, albeit that the council still had a discretion not to take it into account. This was a means-testing exercise in which a wrong decision had potentially serious economic consequences for Mr Beeson: it would expose him to a liability to make a payment which he could not afford to make out of his retained assets.
61. In my judgment those considerations bring the particular situation within the scope of the reasoning that led the Court to hold in Salesi and Schuler-Zgraggen that Article 6(1) applied "
Salesi v Italy (1998) 26 EHRR 187 and Schuler-Zgraggen v Switzerland (1993) 16 EHRR 432, much relied on by Mr Drabble, are decisions of the European Court of Human Rights broadly to the effect that Article 6(1) applies in the field of social security or welfare assistance disputes.
"The assessment of need and decisions as to whether they call for the provision of any of the community services come first. The assessment of means, and the requirement to pay what a person can afford, comes afterwards."
Since we have concluded, albeit for reasons (which we will very shortly explain) differing from those of the judge, that Mr Beeson's civil rights were engaged in the process of decision-making under Part III of the 1948 Act, it is with great respect unnecessary to enter at length into the details of Robertson's case, or the associated arguments advanced by Mr Drabble relating to Sefton [1997] 4 AER 532. Neither of these authorities was concerned with Article 6 nor, given their place in time, could they have been. We should notice, however, that as regards Robertson Mr Giffin had submissions to the effect that different amendments to the 1948 Act as between England and Scotland made all the difference; and if it had been an English appeal Robertson would have been decided the other way. We do not find it necessary to say more than that Robertson does not, in our judgment establish a basis for the proposition that within Part III of the 1948 Act as it applies in England there are to be found such separate and distinct functions of decision-making as are urged by Mr Drabble.
(b) Is Article 6 satisfied?
"37 Assuming only that in any particular milieu disputes of fact may arise, it is necessary also to confront the question whether the 'first instance' decision-maker internal review, Review Board, whatever it may be is established and constituted in such a way that it may be expected to arrive at fair and reasonable decisions. That may be a live and real question even though, for want of sufficient independence, or publicity, or any other factor, such a first instance decision-maker does not itself satisfy Article 6. Its failure to meet the Article 6 standards by no means closes off the relevance of its processes for the overall judgment that has to be made which takes account also of the second stage review or appeal in an independent court.
38. This aspect of cases like the present is I think reflected in Waller LJ's reasoning in McLellan at paragraphs 99 and 100:
"99 It is in my view legitimate to take into account in this context that the review panel is a body chosen by Parliament. If, of course, it was simply impossible for such a tribunal to reach a fair decision, that would lead inevitably to the conclusion that the scheme could not work without infringement of Article 6. Would it be impossible for there to be a fair decision from any person who would be appointed to review matters under the introductory tenancy scheme? Would a court inevitably come to the conclusion that any officer, however senior, could not constitute a fair tribunal for hearing the matter? Is the position such that judicial review could not provide the check as to whether a decision had been reached fairly and lawfully?
100 One has to remember that the council are in reality making decisions which are not simply decisions as to whether it has a right to terminate. The council is not anxious to terminate unless other considerations prevail. The council is having to have regard to competing interests of other tenants and the competing interest of others who need the housing that they can supply. In my view there is no reason to think that such a decision cannot be taken fairly at a senior level of the council reviewing the decisions already reached by less senior people. Furthermore it seems to me that judicial review will be able to check the fairness and legality of decisions taken."
" the scheme is one which may generally and systematically be characterised by the exercise of value judgments as to need and whether accommodation was otherwise available. This places, to my mind, this case at the edge of the range of cases concerning civil rights and as I have already remarked is the type of judgment which is more likely to lead to judicial review satisfying compliance with Article 6."
THE CROSS-APPEAL