SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT PETERHEAD

Case Reference No: AW14/04

 

JUDGEMENT OF
SHERIFF MARYSIA LEWIS
in the cause of
Y.W. residing at a residence in Aberdeenshire
	Appellant
Against
THE OFFICE OF THE PUBLIC GUARDIAN, Hadrian House, Callander Business Park, Callander Road, Falkirk FK1 1XR
	Respondents

 

 

Act: Reilly Alt: Flinn

 

Peterhead June 2010

 

The Sheriff, having resumed consideration of the cause, refuses the appeal and directs under section 3(1) of the Adults with Incapacity (Scotland) Act 2000 (as amended) ("the 2000 Act") that the sum of £619.53 or such other sum in excess of those sums required by Aberdeenshire Council, as withdrawer in terms of section 25(6) of the 2000 Act, for the provision of sustenance, accommodation, fuel, clothing and related goods and services for the appellant, shall be paid to the appellant by Aberdeenshire Council on a fortnightly basis; finds no expenses due to or by either party to the appeal.

 

FINDINGS IN FACT

(1) The appellant resides in Fraserburgh, Aberdeenshire.

 

(2) The appellant suffers from Huntington's Chorea, otherwise Huntington's Disease, an inherited neurological disorder which leads to progressive physical and neurological degeneration ultimately resulting in dementia. The appellant does present as having dementia. The appellant's medical condition is progressive, and without prospect of remission.

 

(3) The appellant is aware of her diagnosis and has some insight into her condition.

 

(4) The Appellant is divorced. She has four children, a son and three daughters. Mr. W took on responsibility for rearing the children. The appellant was unable to care for the children due to her illness.

 

(5) On 15 December 2004 the Chief Social Worker was appointed as the Welfare Guardian of the appellant for a period of 3 years. A Minute seeking renewal and extension of the Guardianship Order was granted on 30 June 2008 for a period of 5 years.

 

(6) The appellant, by reason of her medical condition, is mis-managing her financial affairs to such an extent that her physical and mental health are at risk; her standard of living is seriously compromised; and she is vulnerable to exploitation within the community.

 

(7) The appellant's only source of income is from state benefits comprising Income Support and Disability Living Allowance amounting in total to £1053.40.

 

(8) Income Support is paid monthly into an account held in the name of the appellant with the Bank of Scotland and Disability Living Allowance is paid monthly into an account held in the name of the appellant with the Bank of Scotland.

 

(9) The Appellant withdraws almost the entire content of her bank accounts each month. She places the cash into two purses within her handbag. One purse contains cash derived from her Income Support and is used for her day to day living costs including utilities, food and occasional small items for the children. The other purse contains cash derived from her Disability Living Allowance and is used to buy larger household items, gifts for the children and clothes for herself.

 

(10) While out shopping the appellant frequently puts her handbag containing her purses down, and forgets to pick it up. There is a risk that the handbag containing large sums of money will be lost or stolen.

 

(11) The appellant regularly purchases a large number of birthday and Christmas presents for her children and lavishes other unnecessary items on them.

 

(12) The appellant's son makes inappropriate demands upon her for money and gifts which she is unable to refuse.

 

(13) By acceding to the requests from her son for money and gifts, by purchasing unnecessary items for her daughters and by purchasing large quantities of presents for all of the children, the appellant frequently uses all of her monthly income. She regularly does not have sufficient cash to purchase food for herself and to pay for gas and electricity.

 

(14) As a sufferer from dementia, the applicant requires a better than average diet, high in vitamins, in order to maintain her physical health. The appellant fails to prioritise her nutritional needs. By choice, the appellant purchases and subsists on food types which are cheap and nutritionally deficient.

 

(15) A poor-quality diet is likely to lead to the appellant's mental state deteriorating more quickly than would otherwise be the case.

 

(16) As a sufferer from dementia, the applicant requires to remain warm and well-clothed in order to maintain her physical health. The appellant. from time to time, fails to retain sufficient funds to pay for gas and electricity. She has been without heat and light for short periods during the winter months.

 

(17) The appellant borrows money from her support workers to enable her to purchase food and to pay for gas and electricity.

 

(18) The appellant has no savings and does not save any money from her monthly income.

 

(19) The appellant co‑operates with social work staff on non-financial matters with some reluctance, and refuses to be guided by them on financial matters.

(20) The appellant needs constant guidance, supervision and support in regard to dealing with financial matters.

 

FINDINGS IN FACT AND LAW

(21) The appellant is incapable in terms of section 1(6) of the 2000 Act of acting and of making decisions about and of safeguarding her interest in her income.

 

(22) The purpose of the Access to Funds application is for the provision of sustenance, accommodation, fuel, clothing and related goods and services for the appellant.

 

(23) The Access to Funds Order will benefit the appellant. It will provide certainty in relation to the payment of rent and utilities by way of direct debit or standing order, the regular purchase of food, clothing and related goods and services of appropriate quality and quantity, and it will permit a small fund to be built up for the purchase of household appliances.

 

(24) That benefit cannot reasonably be achieved without intervention.

 

(25) An Access to Funds Order combined with a direction under section 3(1) of the 2000 Act is the least restrictive form of intervention.

 

NOTE

 

1. Introduction

This is an appeal under section 31D of the Adults with Incapacity (Scotland) Act 2000 (as amended) against a decision of the Public Guardian to grant an Application for an Access to Funds Order ("the Order"). An evidential hearing took place on 12 and 22 June 2010.

 

The Appellant's case is that the Order is unnecessary. She is capable of making decisions in relation to her financial affairs and of safeguarding the funds she receives by way of financial support. The Order is not the least restrictive option and it removes from her the last element of control which she has over her own life.

 

The Respondent's position is that the Order is essential. The appellant is incapable of making decisions about funds and of safeguarding her interest in her income. She is mis-managing her financial affairs to such an extent that her physical and mental health are at risk, her standard of living is seriously compromised and she is vulnerable to exploitation within the community.

 

Dr. Fergus Douds gave evidence followed by the appellant, Shona Gammack and Jennifer Kellock. For the Respondent, evidence was given by Victoria Ann Redford, Moira Ann Miller and Dr. Carol Robertson. The agents helpfully lodged detailed written submissions as well as providing supplementary oral submissions. I thank them for the sympathetic and tactful presentation of their respective cases.

 

2. The background

The medical position discloses a tragic set of circumstances. Mrs. W is only 37 years of age. In 2001 she was diagnosed with Huntington's Chorea. She presents as having dementia. Mrs. W has four children. She and her husband are divorced. Concerns were raised about the ability of Mrs. W to care for her children and so Mr. W took on responsibility for rearing the children. In 2004 Aberdeenshire Council applied to the Sheriff at Peterhead for the appointment of the Chief Social Worker to be the Welfare Guardian of the appellant for a period of 3 years. The appellant was vehemently opposed to that application. Nonetheless after hearing evidence, the Sheriff granted the Welfare Guardianship Order ("the Guardianship Order"). A Minute seeking renewal and extension of the Guardianship Order was lodged and this too was opposed by Mrs. W. After hearing evidence, the Sheriff granted the Minute on 30 June 2008 appointing the Chief Social Worker as welfare guardian for a period of 5 years.

 

On 15 June 2009 an application [No. 15/1 of Process] was made by Aberdeenshire Council to the Public Guardian in terms of section 24D and 25(1) of the Act seeking an Order for Access to Funds. The application was accompanied by a certificate from Dr. Carol Robertson [No. 15/2 of Process] certifying that the appellant was incapable in terms of section 27B of the Act. The appellant objected to the granting of the application and a hearing took place on 12 August 2009 in Peterhead Sheriff Court before Michael Fraser of the Office of the Public Guardian. The hearing was continued to allow the appellant the opportunity to seek a second medical assessment. She deliberately failed to attend for examination and assessment. The Access to Funds Order was granted on 9 October 2009.

 

 

3. The evidence

 

Dr Fergus Douds, Consultant Psychiatrist, is approved under Section 22 of the Mental Health (Care and Treatment) (Scotland) Act 2003. On 16 January 2010, he interviewed the appellant at her home and set out his findings in a Report dated 4 February 2010 [No. 23/1 of Process]. Ms. Shona Gammack, a support worker, and Ms. Catherine Murray of Advocacy North East were present during the meeting. It was clear from the evidence of Dr. Douds that he had been heavily influenced by Ms. Gammack in concluding that the appellant did not lack capacity. Had he been limited to considering only the case records and the interview of the appellant, he would have concluded that intervention was entirely merited. In view of the support provided by Ms. Gammack and the Real Life Options team, he concluded that the appellant was capable of managing her financial affairs.

 

Dr. Douds' opinion altered during cross examination. He was not aware, at the time he met with the appellant, that there had been incidents throughout 2009 and early 2010 which had caused particular concern to the Welfare Guardian. On reflection, he advised that had he been made aware of that information earlier, the conclusions in his Report may have been different. He regarded this additional information as material and of relevance to an assessment of the capability of the appellant. Whilst the appellant is in receipt of an ongoing support package from Real Life Options, the intervention is not necessary. In his opinion, the appellant is capable of managing her own financial affairs but only with the Welfare Guardianship Order being in place and being implemented, and with the support package provided by Real Life Options.

 

The appellant's evidence-in-chief was taken, in the main, by way of leading questions. Mr. Flinn did not object, and I am grateful to him for refraining from doing so as this afforded the appellant the best means of giving evidence in what were clearly distressing circumstances. The appellant perceives the Guardianship Order as an unwelcome intrusion on her life. The only element of her daily life over which she has unfettered control is the management of her finances. She understood the potential impact of the Order and was adamant that the Order is unnecessary and would remove the last vestige of her dignity. She does not much care for Ms. Redford, the social worker appointed to handle the day to day operation of the Guardianship Order, although she does have a good relationship with Ms. Gammack, her support worker.

 

The appellant described, with a degree of pleasure, her daily routine, shopping trips and other outings with her support workers. These trips require finance and that led the appellant to describing her method of handling her income and expenditure. The appellant did not accept that keeping large sums of money in her handbag was imprudent and that she was placing herself in a position of vulnerability in the community. She accepted that she occasionally ran out of funds and did not have sufficient cash available to pay for fuel or food or household appliances. She does not save any of her income and borrowed small sums of money from the support workers but always repaid them promptly.

 

She spoke of her relationship with her children and the purchases that she makes for them on a regular basis. She deliberately chooses to spend her income on items for the children as opposed to buying food for herself or paying bills. She found it difficult to deny the children anything requested. Her diet is driven again by choice - she prefers to eat cereals as they are easier to eat given her illness.

 

Shona Gammack, a support worker with Real Life Options, works with people who have learning difficulties, mental health problems or both. She has been a support worker for the appellant since July 2007. She described the evolution of their relationship from rejection of assistance to reluctant acceptance. Ms. Gammack described the level of support which she gives to the appellant and the activities which they undertake together. She corroborated the evidence of the appellant in regard to the cash based system of financial management. She spoke of the appellant spending a great deal of her income on gifts for the children and leaving herself short of cash to pay for essentials. The appellant occasionally borrowed small amounts of money from the support workers to buy food or pay for utilities but always repaid this within a few days. Ms. Gammack considered that removing from the appellant all control over her financial affairs would have a significant and detrimental impact on the appellant. She accepted that the appellant is only capable of dealing with her finances with ongoing assistance from the support staff. If that level of support was removed, then the appellant would not be able to manage her finances.

 

J.K. is a sister, and nearest relative of the appellant. She spoke of having contact with the appellant several times each month. The visits revolve around reminiscing and chatting about the family. She does not assist the appellant with her finances, her daily purchases, shopping trips or correspondence, leaving that in the hands of the support workers. In her opinion, the appellant would lose motivation if financial planning was removed from her control. The appellant was not yet so incapable of managing her own financial affairs that intervention was required.

Victoria Ann Redford, is a senior mental health social worker. The appellant had been an inpatient at Royal Cornhill in Aberdeen and was released in to the community in September 2006. Ms Redford assisted the appellant in finding suitable accommodation and securing for her a care package through Real Life Options. She spoke of the work which the support workers from Real Life Options did for and with the appellant and the good relationship that had developed between them and the appellant. Ms. Redford spoke of the granting of the Guardianship Order, her role in relation to the operation of it and the reluctance of the appellant to co-operate with her. She described the deterioration in the health of the appellant. This has had a significant impact on the ability of the appellant to manage her finances. Ms. Redford identified a number of risks facing the appellant in regard to her cash based system of financial management. She spoke of excessive spending on the children and poor decision making in relation to prioritizing expenditure on gifts for the children over food, heating and rent. Ms. Redford is of the view that although the appellant could become de-motivated if she did not have access to her own money, the Application for an Access to Funds Order is necessary. As a means of allowing the appellant to retain an element of control over her finances, Ms. Redford suggested that all income of the appellant be paid to Aberdeenshire Council from which the essential household bills of the appellant are paid and the balance will then be passed to the appellant to do with as she chooses.

 

Mrs. Moira Ann Miller, is the Team Manager of the Social Work team for North Aberdeenshire. She spoke of the obtaining of the Guardianship Order and Ms. Redford's role in the operation of that Order. She described her concerns about the well being of the appellant based not only on reports from Ms. Redford but also on her own observations. Mrs. Miller accepted that there is a fine balance between allowing the appellant the personal freedom to use her own skills as against an imposed regime in regard to financial management. In her view, and on balance, the Order is essential to ensure that fuel and rent bills are paid by way of direct debit, and the appellant's needs are met as a priority as opposed to lavish spending on the children. It is also the least restrictive option available.

 

The appellant had been a patient of Dr. Carol Robertson, Consultant Psychiatrist, for the last 10 years. Dr. Robertson spoke of the need for the intervention proposed, of the necessity for it, and of the benefits it would bring to the appellant. She described the nature of Huntington's Chorea, its progression resulting in dementia and the current status of the appellant. She explained that for sufferers of dementia, a good nutritious diet and warmth are required to maintain physical health. She described a series of alarming incidents during 2009 and early 2010 indicative of the appellant's failure to budget her finances, to control her spending and to prioritise her own needs for nutritious food and warmth above the requests of her children for money. She spoke to the terms of her Report dated (No. 29/1 of Process). She did not deviate from the opinion expressed in that Report that the Order will benefit the appellant by giving her greater financial security and ensuring the provision of nutritional food, heat and light. She accepted that such an Order could have an adverse demotivational impact on the appellant but the risks to the mental and physical health of the appellant of allowing matters to continue as they are, unsupervised, are too great. In her opinion the appellant is incapable in terms of section 27B of the Act. She considered that the order is essential and that it is the least restrictive option.

 

4. THE SUBMISSIONS

Ms. Reilly and Mr. Flinn helpfully lodged Written Submissions in advance of the final day of the hearing. These have been lodged in Process and need not be repeated herein. They were given the opportunity to amplify their Written Submissions.

 

Mr. Flinn submitted the Order is entirely appropriate. The evidence demonstrates that the appellant lacks capacity to manage her financial affairs. The intervention is for the appellant's benefit. The risks inherent in the existing arrangements are too great and the case for intervention is compelling. Mr. Flinn invited me to refuse the appeal and to make an ancillary order under Section 3(1). That would allow Aberdeenshire Council, as withdrawer, to use as much of the appellant's funds as were necessary for her care and maintenance, leaving her the balance to spend. The Public Guardian and Aberdeenshire Council are able and willing to implement such an ancillary order, for their respective interests.

 

An intervention, subject to such an ancillary order, would be in accordance with the principle set out in section 1(5) of the 2000 Act, would give the appellant a measure of control over her money and would avoid the possibility of the appellant becoming demotivated. Mr. Flinn tendered a breakdown of income and proposed expenditure which revealed that the appellant has income from state benefits of £1053.40 each month. The cost of rent, utilities, food, and other essentials amounts to £433.87 per month and that would leave the appellant with £619.53 per month for her own use. Due to the timing of the payment of the benefits, he proposed that the sum of £309.76 be paid into a bank account in the sole name of the appellant each fortnight.

 

Ms. Reilly explained that she had taken instructions from the appellant regarding the proposed ancillary order. The proposal is not acceptable to the appellant. She remains vehemently opposed to the granting of the Access to Funds Order and to anything that flows from it. She made choices in regard to buying gifts for the children as opposed to food and utilities. As with most mothers, she puts the needs of the children before her own. These are lifestyle choices made daily by others and she wishes to have that same opportunity.

5. DECISION

The legislation providing for 'access to funds orders' is contained in Part 3 of the Adults with Incapacity (Scotland) Act 2000. A new Part 3, consisting of sections 24A - 33 inclusive, was substituted by the Adults Support and Protection (Scotland) Act 2007. Part 3 of the 2000 Act (as substituted) sets out the terms of a scheme whereby an application may be made to the Public Guardian for a withdrawal certificate authorising a third party to intromit with an adult's funds. Part 3 prescribes inter alia the detail of the application, the procedures involved and the duration of any withdrawal certificate granted.

 

Section 24B provides that an application under Part 3 "may be made only in relation to an adult who is incapable in relation to decisions about; or of safeguarding the adult's interest in, the funds to which the application relates". Section 1(6) sets out a general test for incapacity - . "incapable" means incapable of -

(a) acting; or

(b) making decisions; .......

and "incapacity" shall be construed accordingly.

 

Aberdeenshire Council applied to the Public Guardian for such an Order in respect of the appellant and such an Order was granted on 09 October 2009. Section 31D provides that a decision of the Public Guardian may be appealed to the sheriff. The appellant does not accept that such an Order is necessary and has appealed that decision.

 

The central issue in this appeal is whether and, if so, how best to intervene in the financial affairs of the appellant. There is ample authority to the effect that I must not authorise any form of intervention unless I am satisfied that it will benefit the applicant. It is common ground between the parties that the granting of the Access to Funds Order would be an intervention in the affairs of the appellant in terms of section 1(1). It is also common ground between the parties that the principles set out in sections 1(2) to 1(4) require to be given effect. In relation to the section 1 principles, I can do no better than refer to the views expressed by Sheriff Baird in the Guardianship of Mona Muldoon 2005 SLT (sc ct) 52 "I am not allowed to intervene in the affairs of an adult unless (i) I am satisfied that the intervention will benefit the appellant and that benefit cannot reasonably be achieved without the intervention, .... (ii) that any intervention which is being made is the least restrictive option in relation to the adult's freedom, consistent with the purpose of the intervention, ..... and (iii) that in determining whether and if so what intervention is to be made account shall be taken of the past and present wishes of the adult, the views of the nearest relative and the primary carer and the views of any other person appearing to me to have an interest in the welfare of the adult or in the intervention."

In reaching my decision I have taken into account the views of the appellant, Mrs. K her nearest relative, Ms. Gammack her support worker, and Dr. Douds, as well as Dr. Robertson, Ms. Redford and Mrs. Miller, all of whom have had a significant involvement in the care of the appellant for many years

 

There is also no doubt that the health of the appellant is deteriorating. Her communication skills and mobility are worsening. She is heavily dependent on support provided through the Guardianship Order and the Real Life Options support package. Dr. Douds, who has had limited involvement with the appellant, ultimately concluded that the appellant could continue to manage her financial affairs provided she had as a minimum, support on an ongoing basis from her existing carers.

 

Ms. Gammack is very fond of the appellant and admires her resilience and fortitude in the face of a progressive degenerative disease. Ms. Gammack has been and still is willing to provide sufficient support to allow the appellant to retain control over her finances. She and the other support workers are to be commended to their unfailing support for and loyalty to the appellant. However, they have been providing assistance beyond the scope of the Guardianship Order. In assisting the appellant in relation to the management of her money, they have been acting without legal authority. In this regard again I refer to the Guardianship of Muldoon and certain observations of Sheriff Baird - "The right to act for ones self being fundamental, it should be removed by a lawful tribunal so that it can be properly regulated. Mr. Ward, again, at page 53 .... states that "the exercise de facto of powers such as guardianship powers without legal authority, without any procedure to determine whether and to what extent such powers are needed and upon whom they should properly e conferred and without the attendant regime of supervision and accountability is by far the greatest restriction on an adult's freedom and will often be wrongful and a contravention of ECHR Article 6."

 

The appellant has an element of understanding about her condition and of the progressive nature of the disease. She is clearly frustrated not only by the impact of the disease on her life but by what she perceives to be a creeping erosion of her rights and freedoms. That is understandable. Against that I have to balance the needs of the appellant, the risks that face her in the operation of the existing arrangements and the benefits that would be available to her through intervention.

 

There is no doubt that the appellant is devoted to her children. She displays that devotion by spending an inordinate proportion of her income on gifts and clothes for the children. I am concerned about the immediate capitulation of the appellant to the requests of the children for money or gifts - whether that is attributable to the disease or to a mother's devotion to her children or some other reason I do no know. The practice of hoarding large sums of money in a handbag places the appellant in a vulnerable position in the community and at home. It is known locally that she carries large sums of money about her person. She is increasingly forgetful and that could lead to the loss of her handbag and its contents. The appellant has shied away from setting up direct debits or standing orders to pay utilities and rent, preferring to operate a cash based system. She receives a significant amount of money each money by way of benefits yet has left herself so short of money that to pay for food, rent or fuel, she has had to borrow money from her support workers. Based on the evidence of Dr. Robertson, Dr. Douds, Ms Redford, and Ms. Gammack I am satisfied that the appellant does need guidance, supervision and support in regard to dealing with daily living expenses and making properly informed choices on spending priorities. Without that support and guidance, the appellant is simply not capable of looking after her financial affairs.

 

I am satisfied that intervention will benefit the appellant. It will provide certainty in relation to the payment of rent and utilities by way of direct debit or standing order, the regular purchase of food of appropriate quality and quantity, and it will permit a small fund to be built up for the purchase of household appliances. I am of the view that benefit cannot reasonably be achieved without intervention and that form of intervention is the Access to Funds Order.

 

That is not the end of the matter. Most of the witnesses spoke of the negative impact on the appellant of such an Order being made. In the hope of countering those adverse effects, Ms. Redford in particular suggested a method of allowing the appellant some significant control over a large part of her income. That suggestion was explored in some detail in submissions. I was addressed on the making of an ancillary order under section 3(1) of the Act as a means of permitting the appellant to retain control over a significant portion of her income. That section provides:

(1)                    In an application or any other proceedings under this Act, the sheriff may make such consequential or ancillary order, provision or direction as he considers appropriate.

(2)                    Without prejudice to the generality of subsection (1) or to any other powers conferred by this Act, the sheriff may -

(a) make any order granted by him subject to such conditions and restrictions as appear to him to be appropriate....."

This appeal is made under section 31D of the 2000 Act. The application to intromit with the funds of the appellant was made under section 24A of the Act. Rather than making an ancillary order, I am satisfied that in this case it is appropriate to make a direction under this part of the Act. The direction, I sincerely hope, will allow the appellant to retain control over a significant portion of her income to spend as she wishes and allow her the dignity of utilising whatever skills she has concerning her income. At the same time, the combined effect of the Order and the direction will ensure that items essential for the physical and mental health of the appellant are provided on a regular basis by others.

 

I am accordingly satisfied that this form of intervention, namely the Access to Fund Order combined with my direction, is the least restrictive option in relation to the adult's freedom and is consistent with the purpose of the intervention.

 

EXPENSES

Both parties were agreed that regardless of the outcome of the appeal, they were content that I should find no expenses due to or by either party. I am content to follow their suggestion.