Scottish Court of Session Decisions

In this application for judicial review the petitioner is Mrs Mary Robertson, an elderly lady, on whose behalf the petition has been presented by her son, Gavin Robertson, acting under a power of attorney granted by her and dated 20 July 1995. The petitioner seeks inter alia the reduction of the decision of the respondents, Fife Council, dated 8 December 1998 and confirmed on 22 January 1999, to the effect that they refuse to enter into any funding arrangement in respect of the costs of residential/nursing care incurred by her. The respondent's decision proceeded upon their view that the petitioner is in possession of notional capital in excess of £16,000, represented by the value of heritable property at 87 Main Street, Newmills, Fife, by virtue of the provisions of Regulation 25 of the National Assistance (Assessment of Resources) Regulations 1992.

The factual background to the matter is that by disposition dated 9 October and recorded 11 October 1995 the petitioner disponed the heritable property owned by her at 87 Main Street, Newmills for love, favour and affection to her surviving children, Alexander, Graham and Gavin Robertson. The petitioner avers that she has lived all her life at 87 Main Street, a property which formally belonged to her mother. Upon the death of her mother the property was divided, the first and second floors being bequeathed to the petitioner's brother, and the ground floor to the petitioner. The petitioner's brother subsequently sold the upper floor to the petitioner's son, Graham Robertson. The petitioner continued to live on the ground floor with her daughter. In July 1995 the petitioner's daughter died. The petitioner suffered a minor stroke from which she made a good recovery. She continued to look after herself but wished to be relieved of the stress of looking after her financial and property affairs and to that end granted the power of attorney to her son, Gavin Robertson. By the autumn of 1995 the petitioner's brother had spent the proceeds of the sale of his part of the house and was living in temporary accommodation. He began to ask the petitioner to be allowed to come and live with her; the petitioner found it difficult and stressful to continue to resist his requests. She avers that, following discussion of the situation with her family, and in order to end her brother's pestering, she conveyed the property gratuitously to her surviving children. Thereafter she continued to live in the property and to look after herself as before. The petitioner further avers that in making the said disposition she never contemplated the prospect that she might, at some future date, have to enter residential care and might be liable for the cost thereof; it was no part of her decision to dispone that she might thereby decrease the amount that she might ultimately be liable to pay for residential care.

It is averred that the petitioner began to suffer from the effects of senile dementia, the existence of that condition being neither known nor suspected at the time of the granting of the disposition in October 1995. Her condition gradually deteriorated. In 1997 she began to stay for short periods at the Jean Mackie Centre in Dunfermline. Eventually she became incapable of living independently and on 21 April 1998 went into residential care at the Matthew Fyfe Home in Dunfermline. In November 1998 she was assessed by the respondents as being in need of full-time residential nursing care; on or about 13 November 1998 the respondents arranged for her to be moved to the Forth Bay Nursing Home, Kincardine and on 1 December 1998 to the Kincardine Bridge Nursing Home where she remains. Both of said nursing homes are run by an independent body. The said nursing home placement represents a change in the petitioner's circumstances in that the previous placement in a residential home broke down by virtue of her confused and disorientated state; she is now no longer able to be looked after other than in a facility which provides nursing care. It was explained on behalf of the respondents that the petitioner's placement was made on an emergency, respite basis. The respondents aver in their Answers that the respite arrangement was due to end on 18 December 1998. They also aver that respite care in private nursing homes is not means tested.

In their letter of 8 December 1998 the respondents indicate that they consider themselves entitled to include the value of the property at 87 Main Street, Newmills when assessing the petitioner's ability to pay for care costs as the transfer of that property in 1995 to her three sons was carried out for no consideration or legal obligation. On 28 January 1999 the respondents gave an undertaking that the current arrangement would not be terminated pending the outcome of this litigation. By interlocutor of 30 June 1999 the Lord Ordinary, on the petitioner's motion, ad interim suspended the said decision by the respondents to refuse to enter into any funding arrangement in respect of the costs of residential/nursing care incurred by the petitioner and ad interim interdicted the respondents from terminating the arrangement made by them whereby the petitioner is afforded residential care with assistance for costs at Kincardine Bridge Nursing Home. These interim orders were continued, pending the issuing of this Opinion, by interlocutor pronounced at the conclusion of the first hearing on 10 November 1999. The respondents do not, in these proceedings, seek to recover payment for the services which they have, since November 1998, provided for the petitioner.

The determination of the charge to be levied for accommodation provided by the local authority is governed by the provisions of Section 87 of the Social Work (Scotland) Act 1968. In terms of Section 87(2) persons for whom accommodation is provided under the Act are required to pay for it in accordance with the subsequent provisions of Section 87. Section 87(3) provides that accommodation provided under the 1968 Act is to be regarded as accommodation provided under Part III of the National Assistance Act 1948 and that Sections 22(2) to (8) and 26(2) to (4) of that Act are to apply.

Section 22(2) of the 1948 Act provides that the basic obligation of the person provided with accommodation is to pay the "standard rate" fixed for that accommodation by the authority managing the premises, that is to say, the full cost. Section 22(3) provides that where a person for whom accommodation is provided satisfies the local authority that he is unable to pay for that accommodation at the standard rate, the local authority is to assess his ability to pay and accordingly determine at what lower rate he shall be liable to pay for that accommodation. In terms of Section 22(5) the local authority is required, in assessing a person's ability to pay, to give effect to regulations made by the Secretary of State for the purposes of the sub-section. These include the National Assistance (Assessment of Resources) Regulations 1992 (S.I. 1992 No. 2977) as amended, Section 20 of which provides that no resident shall be assessed as unable to pay for his accommodation at the standard rate if his capital exceeds the prescribed amount. Regulation 25 provides that the 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. It is agreed that when the heritable property disponed by the petitioner to her children in 1995 is taken into account, her capital exceeds the current prescribed amount. The respondents, in their answers to the petition, admit that their decision to refuse to enter into any funding agreement in respect of the petitioner's accommodation costs is based on their assessment of the applicability to the petitioner's case of the provisions of Regulation 25. The issue which arises for decision in this case is whether that was an approach they were entitled to adopt.

Responsibility for the provision and funding of community care services including residential/nursing care of the type which the petitioner is now receiving is conferred on local social work authorities by the National Health Service and Community Care Act 1990. It is not disputed in this case that the petitioner is resident in Fife and that accordingly the respondents are under a statutory obligation to provide community care services for her. The 1990 Act introduces a new Section 12A into the Social Work (Scotland) Act 1968. Section 12A imposes a duty on the local authority to assess the individual's needs for community care services and, in particular, to carry out a full assessment of a person's care needs prior to the provision of any such care services. Guidance for local social work authorities on care assessments was issued under Section 5 of the 1968 Act by Social Work Services Group in their Circular No: 11/91. That describes what came to be known as the "care management approach", a process of relating services to individual needs. Paragraph 5.1 emphasises that the assessment carried out by the local authority should be needs-led and not service-led. Paragraph 11, which deals with charges for services, emphasises that the provision of services should not be related to the ability of the user or their families to meet the cost.

The primary submission by Mr Hajducki on behalf of the petitioner was that the respondents erred in their direct application of Regulation 25 to the petitioner's case when making an assessment of her needs and that their decision was accordingly ultra vires. In particular, it was submitted that the respondents were in clear contravention of the guidance under which they require to perform their functions in seeking to refuse to provide the particular community care service which it is admitted the petitioner requires, residential nursing care, on the basis of the view they have taken as to the extent of her resources. Mr Hajducki explained that it was not any part of his submission that once a decision as to the petitioner's needs had been made and accommodation provided, Regulation 25 could not be applied. In the present case, however, the local authority had erred in their approach in that they had applied Regulation 25 at the wrong stage and for a purpose for which it was not designed: they should have followed a two stage process by firstly determining the petitioner's needs under Section 12 of the 1968 Act and then providing the appropriate accommodation. Had the respondents provided the petitioner's accommodation on a permanent as distinct from a respite basis it would then have been open to them to apply Regulation 25 to determine what amount the petitioner required to pay in respect of that accommodation.

It was, Mr Hajducki submitted, clear that the provisions of Section 87(2) of the 1968 Act were concerned solely and exclusively with assessing liability for payment and not with an assessment of the individual's needs with regards to accommodation. It followed that Section 87(3) which, as already noted, imports the provision of Part III of the National Assistance Act 1948, and in particular Sections 22(2) to (8) thereof, was also concerned solely with funding. Regulation 25, upon which the respondents admit they have predicated their decision, comes into effect only once the local authority is satisfied that the full rate cannot be paid (Section 22(3) and (5)). The regulations applied by Section 22(5) to the subsequent assessment of the liability to pay provide a detailed scheme but contain nothing to suggest that liability to pay is to be equated with the need for such accommodation; liability and need require to be viewed as discrete matters. The respondents' approach appeared to be that they are entitled to withdraw the service where they take the view that a person has enough money of their own to fund their care. That approach, being one which was clearly contrary to the needs-led approach described in the circulars issued for guidance by SWSG, was one which they were not entitled to take. Reference was made in this connection to the statement in paragraph 11 of 11/91 (supra) and also to Circular No: SWSG 8/96 para. 6.066 which provides a possible course of action in relation to recovery of charges where the local authority decides the resident has disposed of capital in order to avoid a charge or to reduce the charge payable. It was submitted that what is not suggested there is that the local authority has the option of refusing, as they have done in this case, to provide any service.

The respondents were not entitled to disregard the guidance issued by virtue of the provision of Section 5(2) of the Social Work (Scotland) Act 1968. Reference was made in this connection to R v London Borough of Islington ex parte Rixon [1997] E.L.R. 66, a case dealing with the provisions of the National Health Service and Community Care Act 1990. Local authorities in England are required in terms of Section 7(1) of the Local Authority Social Services Act 1970 to perform their statutory function under the guidance of the Secretary of State. In considering the meaning and effect of the obligation to act under the general guidance of the Secretary of State, Mr Justice Sedley says (at page 71):

In developing his submission that it was not open to a local authority to withhold provision of care on the basis of a liability assessment and that the concept of notional capital entered the regulations only in respect of liability to pay, Mr Hajducki explained the effect of the application of the concept of notional capital to the circumstances of the present case: in normal circumstances a person entering the type of accommodation presently occupied by the petitioner was entitled to retain capital to a limit currently fixed at £16,000; in the present case the petitioner has life savings of about £7,500 but the effect of a finding that the house disponed to her sons was to be regarded as notional capital would be that the local authority could have recourse to these savings and could exhaust them, thus depriving her of the entitlement she would otherwise have had to have capital up to the statutory limit disregarded.

Reference was made by Mr Hajducki to the fact that in terms of the Community Care (Residential Accommodation) Act 1998 two new sub-sections, (3A) and (3B) have been inserted into Section 12 of the 1968 Act. These sub-sections, it was submitted, had no effect on the circumstances of the present case and could therefore be ignored. The provisions were enacted in order to put on a statutory footing the decision of the Court of Appeal in R v Sefton Metropolitan Borough Council, ex.p. Help the Aged and Others [1997] 4 All E.R. 532. In that case the Borough of Sefton was taken to court by the charity Help the Aged on the ground that they were operating a policy of refusing financial support for people in residential or nursing home care until their capital had fallen to a very low level of around £1,500. That was said to be contrary to Government policy that anyone needing such care would receive financial support from their local authority if their capital came to less than the capital limit which was then £10,000. The Court of Appeal held that the will of Parliament was clear that the individual's savings should be protected up to the statutory limit. Mr Hajducki submitted that the limited purpose of the two new sub-sections was to put that policy position beyond doubt by ensuring that it was explicitly written into the law.

In response, Mr Bovey, counsel for the respondents, submitted that the plain terms of Section 12(3A) and (3B) were that capital, as defined for the purposes of Section 22 of the 1948 Act, not only can but must be taken into consideration by the local authority. Further, the key to reading Sections 12 and 13A of the 1968 Act was to read them both together and that proposition was supported by the fact that Section 13A, which requires a local authority to provide suitable residential accommodation with nursing for persons who appear to them to be in need thereof, begins with the words "without prejudice to Section 12 of this Act". Those words were indicative of Parliament's intention as to the cognate nature of the two provisions: Section 12(1) is the enabling provision which empowers the local authority to provide residential care in its broadest sense and Section 13A deals with a specific type of accommodation, namely residential accommodation with nursing. It follows that the terms of Section 12(3A) apply to the provision of accommodation under Section 13. Reference was made in this connection to the case of Metcalfe and Others v University Court of St. Andrews and Others 1894 S.L.T. 599, a case which concerned the interpretation of the Universities Act 1889 and in particular Sections 15 and 16 thereof, the latter of which conferred power on the University Commissioners with respect to the affiliation and incorporation of the University College of Dundee with the University of St Andrews with no reference to any requirement to make an ordinance. A question arose as to the nature of the relationship between the power conferred by that section and the provision of the previous section which empowers the Commissioners to make ordinances to extend any of the universities. Section 16 begins with the words "Without prejudice to any of the powers herein-before conferred" and, on appeal to the House of Lords, consideration was given to the meaning of those words. Reference was made to what was said in this connection by Lord Watson:

Mr Bovey submitted that the same principle of construction as was adopted by the House of Lords in Metcalfe ought to be applied to the words "without prejudice to Section 12 of this Act" appearing at the beginning of Section 13A of the 1968 Act. It was clear from the broad terms of the provision that Section 12(3B) extends to all accommodation, wherever provided, and both with and without nursing care and requires the application of Section 22(5) without the local authority having come to a view as to whether the individual can or cannot pay. The fact that an assessment in terms of that section was taking place did not imply any acceptance by the local authority that the situation was not one to which the provisions of Section 22(2), that is to say payment at the full rate, were applicable; the Section 22(5) assessment was taking place because that was what was required by Section 12(3B).

I find it helpful to begin consideration of the arguments by reference to the scheme of the statutory provisions. Part II of the Social Work (Scotland) Act 1968 is concerned with the promotion of social welfare by local authorities and in terms of Section 12(1), the first section of that part of the Act, a clear duty is imposed on the local authority to promote social welfare by making available services and providing or securing the provision of facilities, including residential establishments.

Section 12A(1) is in the following terms:

It is clear in the light of these provisions that the exercise to be conducted by the local authority is a two stage process: what the local authority requires to do is to complete a needs-led assessment and, having regard to the results of that assessment, to make a decision as to the provision of services.

At this point it is helpful to look at the factual background to this case about which there was no dispute between the parties. It is averred in the Answers to the Petition that the respondents carried out an assessment of the petitioner's needs under Section 12A of the 1968 Act. It is averred that the assessment procedure began in August 1998 and was concluded in November 1998; the conclusion reached was that the petitioner was in need of full-time residential nursing care. Because of the deterioration in her condition the petitioner's placement in residential nursing care was on an emergency basis. That placement was termed respite care by the respondents; respite care is provided at a significantly subsidised rate. In this connection, it was specifically conceded on behalf of the petitioner that the remedy sought in ground (a) of paragraph 3 of the petition namely decree ordaining the respondents to carry out a needs assessment in terms of Section 12A(1) was not being insisted upon. Mr Hajducki submitted however that the fact that the respondents' placement of the petitioner in the accommodation with nursing was described by them as respite rather than permanent care and that they had indicated that they proposed to terminate the placement on 18 December 1998 was unlawful. Their duty in the circumstances was to provide a placement on a long-term basis and then seek to recover the assessed charge.

The duty created by Section 12A(1) is a duty to assess the petitioner's needs and make a decision as to what provision they call for, but to go no further. It is that process, which has as a matter of fact been completed in this case, which requires to proceed upon an exclusively needs-led basis. The duty on the respondents to implement their decision arises only under Section 12 of the Act and, for reasons which will become apparent, I consider that they are, by virtue of Section 12(3A) and (3B), entitled to apply the anti avoidance provisions when making their determination as to implementation. In my view there has been nothing demonstrated in the respondents' approach in this case which is inconsistent with the notion that the concept of notional capital exists for the purpose of assessing liability to pay and not for the assessment of the need for care.

It is apparent from the terms of Section 13A that while Section 12 imposes a duty on a local authority to provide residential accommodation, residential accommodation with nursing, that is to say the type of accommodation with which we are here concerned, may not be provided directly by the local authority, but only by arrangement with other bodies or individuals. It is this section, which was inserted by the National Health Service and Community Care Act 1990, which gives the local authority the specific power to purchase nursing home places from the independent sector. Prior to the introduction of that provision, local authorities had the power to arrange for the provision of residential care, but no power to place people in nursing care.

The proposition that the provisions of Section 13A are, by virtue of the opening words of sub-section (1) thereof, to be read in conjunction with the provisions of Section 12 is well vouched. It follows therefore that the constraints imposed by Section 12(3A) and (3B) to accommodation provided under Section 12 apply equally to residential accommodation with nursing provided under Section 13A. I consider that it would be curious, to say the least, if that were not the case since residential care with nursing is a specialised and expensive form of care. Mr Hajducki submitted that the applicability of the provisions of Section 12(3A) and (3B) is restricted to the situation where the local authority have decided that they are not satisfied that a resident is unable to pay for his or her accommodation. In this case the local authority by invoking the proviso in Section 22(3) have declared themselves satisfied that the petitioner is unable to pay the full rate and have thereby removed themselves from the ambit of the new provisions. I do not accept that submission. In this connection I agree with the opinion expressed by Lord Philip in the case of Yule v South Lanarkshire Council (number 2) (12 May 1999) that, in practical terms, the local authority's task of deciding whether they are satisfied of the resident's inability to pay and the task of assessing ability to pay merge into a single exercise. In my view the decision of the respondents intimated in their letter of 8 December 1998 is, in effect, a decision that they are not satisfied that the petitioner is unable to pay for the accommodation provided at the standard rate.

I also reject the submission on behalf of the petitioner that Section 12(3A) and (3B) have no application to the circumstances of the present case. As has been observed the charging provisions of Part III of the National Assistance Act 1948 are applied to residential care by Section 87 of the 1968 Act and Section 26 of the 1948 Act provides that residential accommodation provided under arrangements with an independent provider is brought within the charging regime of Section 22. In terms of Section 12(3A) the local authority is required to disregard the person's capital up to the level of the capital limit; and in terms of Section 12(3B) is required in calculating that capital to apply the assessment regulations. It seems to me that the answer to the essential question which arises in this case, namely, at what stage is the local authority able to invoke the anti avoidance provisions contained in the regulations, lies in the terms of Section 12(3A) which provides:

I consider that, construing that provision according to its plain meaning, the effect is that the local authority is entitled to apply the regulations at the time of making its decision as to "whether to provide" the particular accommodation in implementation of its general duty. In any event, to suggest that the protection is afforded only after a placement on a permanent basis has been made, in my view, ignores the practicalities of the situation and, in particular, the notoriously disorientating effect of a change of accommodation on an elderly, confused individual.

It follows from what has been said that I consider that the submission that the respondents have failed to act in accordance with the statutory provisions is unfounded and that the remedy of reduction of their decision sought in ground (c) of paragraph 3 of the petition accordingly falls to be refused.

Mr Hajducki presented a subsidiary argument to the effect that esto the respondents are entitled to have regard at this stage to the provisions of Regulation 25, their decision was nevertheless an unreasonable one in that the respondents had not asked the appropriate question and had also inappropriately fettered their discretion.

It was submitted that before a local authority can lawfully apply Regulation 25 they require to make a determination that the property in question was, as a matter of fact, disposed of for the purpose of avoiding future care costs which would otherwise be payable; it requires to be demonstrated that avoidance of those costs was a significant motive on the part of the particular individual. Reference was made in this connection to Circular No: SWSG 8/96 at para. 6.061: "There may be more than one purpose for disposing of a capital asset only one of which is to avoid a charge for accommodation. Avoiding the charge need not be the resident's main motive but it must be a significant one."

The issue upon which the respondents have focused in their decision letters is that the property was transferred for no consideration whereas they ought to have directed their attention to the purpose or motive for the granting of the disposition. The respondents have erred in equating the effect of the alienation of the property with its purpose. Neither of the two decision letters contained any suggestion that the petitioner was, at the time of the granting of the disposition, suffering from any medical condition or had any awareness that she would in the near future require accommodation with nursing and further, there had been no attempt to place a value on the property. Consideration having been given to the wrong factors, no proper decision-making process had been undertaken and it followed that the decision was an unreasonable one and should be reduced.

The statutory provisions impose no obligation on the local authority to give reasons for their decision. In this case it is clear that correspondence was entered into between agents for the petitioner and the respondents' legal department. In their letter of 8 December 1998 the respondents state that, as requested, they write to clarify the basis of their decision to include the value of the property at 87 Main Street, Newmills in the financial assessment for nursing care on behalf of the petitioner. There then follows a reference to the fact that a search carried out in the Register of Sasines revealed that the petitioner transferred the property in question to her three sons in 1995 for love, favour and affection. The respondents then state "As this was carried out for no consideration or legal obligation, the Council is entitled to include the value when assessing Mrs Robertson's ability to pay for care costs in residential/nursing care and will therefore not enter into any funding arrangement until her total assets including notional capital have depleted to £16,000".

In their subsequent letter dated 22 January 1999 the respondents state that the Head of Social Work is still "not satisfied that the property was not transferred, at least in part, for the purposes of avoiding board charges. In particular it does not appear to have been necessary for Mrs Robertson to have transferred the property to her family simply to prevent her brother from moving in with her". They then confirm that the Council's position "remains as stated in previous correspondence".

In terms of the statutory provisions the decision on matters of fact is left to the respondents and there is no appeal. Accordingly the weight given by the respondents to particular pieces of evidence and the inferences drawn from them is entirely a matter for them and not open to challenge. The reality of the situation is that in seeking to operate Regulation 25, local authorities are likely to meet with denials that the purpose of a transfer of a capital asset of an elderly person was to decrease the amount that he or she might be likely to pay for accommodation provided under the 1968 Act. There is no power to compel the provision of information, and in such circumstances the local authority must determine the true purpose of any transfer from the information which has been provided to it. I consider that it is clear, at least from the terms of the respondents' second letter of 22 January 1999, that the matter which is crucial to the application of Regulation 25, namely whether the resident has deprived himself of his property for the purpose of decreasing the amount that he may be liable to pay for his accommodation, has been directly addressed by the social work authority. It is, in my view, significant in this connection that it is acknowledged in the guidance that there may be more than one purpose for disposing of an asset and that avoiding the charge need not be the main motive

Mr Hajducki also submitted that an inappropriate restriction had been placed on the respondents' decision-making process by virtue of the fact that they had concentrated their attention on the available documentary evidence to the exclusion of other matters. Reference was made in this connection to the final paragraph of the letter from the respondents dated 8 December 1998 which is in the following terms:

It was submitted that as the preceding paragraph disclosed that the respondents' decision had been reached on the basis that the disposition was carried out for no consideration or legal obligation, the reference to "any further documentation" could relate only to documents which might disclose the existence of a consideration or legal obligation.

It is clear from the terms of the respondents' second letter of 22 January 1999 that an affidavit from Mr Gavin Robertson, the petitioner's son, regarding the transfer of the property has, by then, been forwarded to them and it is asserted that their Head of Social work has "given full consideration" to that affidavit. It follows therefore that notwithstanding the argument now presented in this respect, the petitioner's agents considered it appropriate to submit the said affidavit. Further, there is no suggestion now made either to the effect that an attempt was made to tender other material which was rejected or indeed that such other material existed but was not tendered. In these circumstances I do not consider that the effect of the final paragraph of the letter of 8 December is as suggested on behalf of the petitioner. It follows that I am not able to conclude that any error in the respondents' approach to its decision making process has been demonstrated.

Decree is also sought in terms of ground (d) of paragraph 3 of the petition ordaining the respondents to make all arrangements necessary for securing the provision to the petitioner of permanent residential nursing care. Mr Hajducki submitted that there were a number of matters which the respondents had failed to take into account in relation to the decision as to the alienation of the petitioner's heritable property. The local authority had failed to carry out a fact-finding exercise and in the event of his primary submission being rejected such a fact-finding exercise by way of a second hearing should be ordered in respect of his subsidiary submission. Such a hearing would be designed to ascertain whether or not the house at 87 Main Street, Newmills fell to be regarded as notional capital. As I have indicated, I have rejected the subsidiary submission. In any event, it would, in my view, have been inappropriate to grant the remedy sought. In particular, I do not consider that it would have been appropriate in the circumstances and in the absence of any assertion that a decision in favour of the petitioner on the issue of notional capital was the only reasonable decision a local authority could make, for the Court to proceed to make a decision which is essentially the responsibility of the respondents and to whom the matter could appropriately have been remitted for them to make a fresh decision. It follows that, in my view, ground (d) of paragraph 3 of the petition also falls to be refused.

The respondents to not seek in this process to recover the costs incurred by the petitioner in respect of the accommodation already provided to her. Since I do not consider that it has been demonstrated that a reason exists to prevent them attempting to do so in another process it follows that the decree which the petitioner seeks finding and declaring that she is not liable to make any such payments is also refused.

I shall accordingly repel the pleas-in-law for the petitioner and sustain the second and third pleas-in-law for the respondents.