England and Wales High Court (Administrative Court) Decisions

Statutory framework

“(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 ….”

“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.”

“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 22 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 22 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).”

“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 [subject to immaterial exceptions].”

“28. … The process of assessment, therefore, begins with the requirement for the resident or prospective resident to provide information to the local authority from which the local authority can be satisfied that he is unable to pay the standard charge for the accommodation. The local authority cannot be so satisfied if the capital, both actual and notional, exceeds the specified sum. In determining the matter of notional capital, the local authority can only proceed upon the material which is available to them either from their own sources or upon that material as supplemented by material from the applicant and from such other sources as the local authority can reasonably be expected to apply to. We agree with counsel for the petitioner that in considering whether there is notional capital to be added to the actual capital of an applicant, the local authority must look to the information before them to determine whether a purpose to the effect specified in the regulations can be deduced. But, in our opinion, this is not a matter of onus of proof. Rather, before the local authority can reach such a view, it must have material before it from which it can be reasonably inferred that the deprivation of capital took place deliberately and with a purpose of the nature specified. The local authority cannot look into the mind of the person making the disposition of capital or of others who may be concerned in the transaction. It can only look at the nature of the disposal within the context of the time at which and the circumstances in which that disposal took place ….

29. … [W]e do not consider … that it is necessary that the claimant should know of 'the' capital limit above which, in terms of the relevant regulations applicable at the time, the local authority is bound to refuse the application, 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. In this respect we consider that the 1992 Regulations have to be looked at in a different light to those concerned with provision for income related benefits, not least because the purpose of the individual may have formed possibly some time ahead of the prospect that he or she might require to enter such residential accommodation …” (emphasis added).

“33. We agree with the Lord Ordinary that it is open to a local authority to reach a view as to the purpose of a transaction such as the present, without any specific finding as to the exact state of knowledge or intention of the applicant, so long as the primary facts are such as reasonably to lead to the inference that the purpose was at least in part that specified in reg 25(1).”

Factual background

“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.”

“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. Strictly the procedure is not one of appeal but a three-stage internal complaints procedure.

“… 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.”

“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.”

“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.”

“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.”

“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.

“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 ….”

I allowed that affidavit into evidence, but without prejudice to the claimants' right to raise objections as to its admissibility and weight when I came to consider the reasons for the council's decision.

Issues

Misdirection

Article 6(1): "civil rights and obligations"

“The most important of these lies in the fact that despite the public law features pointed out by the Government, Mrs Salesi was not affected in her relations with the administrative authorities as such, acting in the exercise of discretionary powers; she suffered an interference with her means of subsistence and was claiming an individual, economic right flowing from specific rules laid down in a statute giving effect to the Constitution” (199, para 19).

Article 6(1): "determination"

Article 6(1): "independent and impartial tribunal"

“Mr Bratza's particular insight, if I may respectfully say so, was to see that a tribunal may be more or less independent, depending upon the question it is being called upon to decide. On matters of policy, the inspector was no more independent than the Secretary of State himself …. On the other hand, in deciding the questions of primary fact or fact and degree which arose in enforcement notice appeals, the inspector was no mere bureaucrat. He was an expert tribunal acting in a quasi-judicial manner and therefore sufficiently independent to make it unnecessary that the High Court should have a broad jurisdiction to review his decisions on questions of fact” (para 110).

Coming back to this later in his speech, he stated:

“The second strand concerns the facts. These are found by the inspector and must be accepted by the Secretary of State, unless he has first notified the parties and given them an opportunity to make representations …. This is the point upon which, in my opinion, the Bryan case … is authority for saying that the independent position of the inspector, together with the control of the fairness of the fact-finding by the court in judicial review, is sufficient to satisfy the requirements of article 6” (para 128).

“53. The resolution of the question in the instant case must depend upon the adequacy of scrutiny which this court is able to undertake in the light of the issues in dispute. The limited review of the facts which this court can undertake is only acceptable if there are sufficient safeguards in place to ensure independent judgment and procedural fairness ….

….

56. I acknowledge that there are many procedural safeguards within the practice document governing the procedures of the Review Board. Indeed, the Review Board appears faithfully to have followed those procedures in this case. This claimant had every opportunity to present his case. The decision gives full reasons for rejecting his assertion that he was liable to pay rent in respect of his occupation. It was a model of cogency and clarity. The court is thus in a position to examine whether the Review Board failed to take into account relevant considerations; whether the decision was irrational; or whether the primary facts found failed to support the conclusions ….

57. But Mr Squires asserts that at the heart of this case lay an issue of credibility. The Secretary of State submits that the reasoning of the Review Board makes it plain that their decision was based upon the questions to which the documents gave rise which the claimant singularly failed to answer or to clarify. The question of credibility, he submits, did not depend upon oral evidence but upon inferences to be drawn from the documents to which the Review Board referred. Had the reasons for rejecting the claimant's assertions not stacked up, this court would have been in a good position to identify that failure. The reasoning demonstrates, it is submitted, an independence of approach.

58. There is, however, in my judgment, one insuperable difficulty. Unlike an inspector, whose position was described by Lord Hoffmann as independent, the same cannot be said of a councillor who is directly connected to one of the parties to the dispute, namely the Council. In my judgment, the position of councillors chosen to sit on a Review Board cannot be likened to that of the Planning Inspectorate ….

….

62. In my judgment, the connection of the councillors to the party resisting entitlement to housing benefit does constitute a real distinction between the position of an inspector and the Review Board. The lack of independence may infect the independence of judgment in relation to the finding of primary fact in a manner which cannot be adequately scrutinised or rectified by this court. One of the essential problems which flows from the connection between a tribunal determining facts and a party to the dispute, is that the extent to which a judgment of fact may be infected cannot easily be, if at all, discerned. The influence of the connection may not be apparent within the terms of the decision which sets out the primary facts and the inferences drawn from those facts. But the decision does not, and indeed should not, set out all the evidence.

63. The weight and impression given by that evidence will be a matter for the judgment of those before whom it is presented. The extent to which they have been influenced will not be manifest from the decision and it may indeed be something of which they themselves are unaware. That is, after all, the origin of the principle which determines the question of bias in terms of risk of bias and not of actual bias. Real possibility and real danger are necessarily tests for the very reason that actual bias cannot readily be demonstrated.

64. … This court cannot cure the often imperceptible effects of the influence of the connection between the fact-finding body and a party to the dispute since it has no jurisdiction to reach its own conclusion on the primary facts; still less any power to weigh the evidence.

65. Accordingly, I conclude that there has been no determination of the claimant's entitlement to housing benefit by an independent and impartial tribunal. The level of review which this court can exercise does not replenish the want of independence in the Review Board, caused by its connection to a party to the dispute. ”

“97. There may however be circumstances of a more difficult nature. If the council in providing reasons alleges acts constituting nuisance, and if the allegations themselves are disputed that at first sight seems to raise issues of fact. But under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter-allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy. That is again a matter which can be dealt with under judicial review either of the traditional kind or if it is necessary so to do intensified so as to ensure that the tenant's rights are protected.

….

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 interests 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 in 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.

101. Thus, it is my view (i) that there is no reason to hold that the review procedure cannot be operated fairly, and (ii) that there is no reason to hold that the remedy of judicial review will not provide an adequate safeguard to tenants ….”

“Fact-dependent decisions must be made by fully independent tribunals: the scope for judicial review of primary findings of fact, and particularly of findings as to the credibility of witnesses, is generally too narrow to cure a want of independence at the lower level” (para 78).

“Judicial control over the legality of a decision does not require a complete rehearing of the merits. But it seems to me that in considering whether a section of a statute is compatible or not, this court should be inclined to assume that the administrative court will at least be likely to ensure that its procedures will enable it to test the legality of a decision, and in particular whether that decision infringes the human rights of a tenant such as the tenants in the appeals before us …” (para 95).

Article 14

“The Court recalls that Article 14 of the Convention protects against a discriminatory difference in treatment of persons in analogous positions in the exercise of the rights and freedoms recognised by the Convention and its Protocols. It observes in this connection that in the constituent parts of the United Kingdom there is not always a uniform approach to legislation in particular areas. Whether or not an individual can assert a right derived from legislation may accordingly depend on the geographical reach of the legislation at issue and the individual's location at the time. For the Court, in so far as there exists a difference of treatment of detained suspects under the 1988 Order and the legislation of England and Wales on the matters referred to by the applicant, that difference is not to be explained in terms of personal characteristics, such as national origin or association with a national minority, but on the geographical location where the individual is arrested and detained. This permits legislation to take account of regional differences and characteristics of an objective and reasonable nature. In the present case, such a difference does not amount to discriminatory treatment within the meaning of Article 14 of the Convention.”

Conclusions

MR JUSTICE RICHARDS: For the reasons given in the judgment being handed down the claim for judicial review succeeds and the decision under challenge will be quashed.PRIVATE 

MR CHAKRABARTI: My Lord, I understand my learned friend, Mr Giffin, will be making an application for permission. If I may have an opportunity to speak to you after that.

MR JUSTICE RICHARDS: First of all should we deal with costs?

MR CHAKRABARTI: I would ask the court for legal aid assessment and costs.

MR JUSTICE RICHARDS: You are seeking costs against the first defendants.

MR CHAKRABARTI: First defendants. There may be an issue of apportionment of the costs between the defendants to two different issues. One was taken by the Secretary of State and indeed one was taken by the Council ----

MR JUSTICE RICHARDS: We will see about that. Yes, I see. You want an order for costs and detailed assessment for legal aid purposes, which you can have plainly in any event. Let me hear from others first about costs.

MR CHAKRABARTI: May I make one other short point.

MR JUSTICE RICHARDS: Yes.

MR CHAKRABARTI: The draft judgment received by Mr Drabble QC yesterday.

MR JUSTICE RICHARDS: Yes, owing I understand to an error in his clerk's room.

MR CHAKRABARTI: I am not entirely aware of what the reasons were. Neither Mr Drabble nor Mr Woolf were in London yesterday. There is one matter, my instructing solicitors's names do not appear on the draft judgment.

MR JUSTICE RICHARDS: Have you looked at the handed down version?

MR CHAKRABARTI: No. Public Law Project.

MR JUSTICE RICHARDS: The claimant is instructed by Conrad Haley, the Public Law Project. Is that good enough for you?

MR CHAKRABARTI: Is it possible to insert that now?

MR JUSTICE RICHARDS: It is Conrad Haley of the Public Law Project. I am sure we can insert that on the front sheet.

MR CHAKRABARTI: I am grateful.

MR JUSTICE RICHARDS: That will be done.

MR SWIFT: My Lord, the application for costs is not surprising. However, can I just respectfully invite you before you exercise that power to bear in mind the following. That in essence one would be moving funds from one public body to another. If you order the costs to be paid by the County Council or even a portion of them then you are simply inflicting on the rate payers of Dorset the burden which is carried in the sense of the claimant's costs by public body with public funds.

MR JUSTICE RICHARDS: That is an old line I recall used occasionally to succeed ten years ago, but in more recent times when there is great attention to public accounting it is important which pot the money comes out of.

MR SWIFT: Well, my Lord, I appreciate that, there is not much else I can say.

MR JUSTICE RICHARDS: Thank you. Mr Giffin?

MR GIFFIN: My Lord, I resist any order for costs against the Secretary of State. As your Lordship knows the second respondent or defendant will not normally get its costs if successful, and in my submission the converse ought to apply here where first of all our participation has not in any way increased the cost. The only points that I argued were the ones which would otherwise have been and would have been argued by Mr Swift. And insofar as any relief was sought against us which was a declaration of regulations were unlawful in the original claim form and subsequently by amendment declarations of incompatibility. Those arguments have failed. Indeed, as your Lordship records in the judgment, the actual outcome has turned on a point with which we had nothing to do, namely the misdirection. The claimant certainly does not need to get an order for costs against us to be made, the County Council being, one hopes, solvent, and in my submission therefore there is no reason for an order to be made against the Secretary of State.

MR JUSTICE RICHARDS: Thank you very much. I will order Dorset County Council to pay the costs on the basis that the misdirection issue which related only to them was dispositive of the case in favour of the claimant. I accept that the points argued by the Secretary of State would in any event have been argued by Dorset and the Secretary of State's intervention in the event did not increase the costs of the case.

MR GIFFIN: My Lord, there is the question of permission to appeal.

MR JUSTICE RICHARDS: You need not address me on that. I will hear from the claimant, if you are making an application for permission, why I should not grant it.

MR GIFFIN: May I mention one point. Since obviously I am merely seeking permission on the Article 6 issue, there might be a technical question as to whether your Lordship needed to grant a declaration in order for there to be something to appeal against unless permission to appeal has been given on the case as a whole.

MR JUSTICE RICHARDS: I quash the decision. If I grant permission to appeal it will be against the matter as a whole because I think the matter has to be looked at as a whole, and therefore I do not think that any further relief is required.

MR GIFFIN: That would follow.

MR JUSTICE RICHARDS: Yes. Mr Chakrabarti, do you want to say anything about permission to appeal? I know it is really difficult for you coming into a case of this sort at this stage.

MR CHAKRABARTI: My Lord, my only point in relation to permission is that which you have already made, that if permission is granted it is granted on the case as a whole and not just on the Article 6 point.

MR JUSTICE RICHARDS: I propose to grant permission. The case does in my view merit the attention of the Court of Appeal. I am not satisfied that there is no real prospect of success on appeal and the Article 6 issues in particular are ones of wider importance than this individual case. So permission is granted without any limitation as to what may be appealed against.

MR GIFFIN: My Lord, I am instructed to ask for a very small extension of the time to file the appellant's notice to 21st December, which I think makes it Friday rather than Monday. It is just to give a little more time for consultation amongst government departments.

MR JUSTICE RICHARDS: Yes, you may have that extension. Can I apologise to everybody that it has taken so long to get this judgment out, much longer than I would have wished.

MR GIFFIN: My Lord, we obviously understand your commitments in Wales and it certainly gave us the opportunity to bombard your Lordship with the other material to look at.

MR JUSTICE RICHARDS: It was very useful, thank you.