Beeson v Dorset County Council (30 November 2001) (unreported) (QBD)

Deprivation of assets – charging – complaints – human rights

*Please note that the High Court’s decision relating to article 6 has been overturned by the Court of Appeal (see below). 

Mr Beeson at the age of 90 suffered a stroke. Shortly after his hospital discharge, he gifted his house to his son, out of concern that his son, whose marriage had recently broken down, might otherwise become homeless. Mr Beeson continued to occupy his home and was keen to live independently, but 2 years later suffered another stroke and needed residential care.

The local social services authority decided that Mr Beeson had ‘deprived himself of an asset with which he could have funded his residential care’ despite his claim that neither he nor his son were aware of the ‘deprivation of assets’ regulations at the time of the gift. The council’s 3rd stage complaints panel concluded that ‘ignorance of the law was not an excuse’ and the Director agreed.

The Administrative Court held that the council’s decision was based on a legal misdirection in that it had failed to apply a subjective test in deciding the purpose for which Mr Beeson had gifted his house to his son. It also held that the complaints procedure by itself was inadequate to secure the requisite degree of independence and impartiality (bearing in mind the councillors’ membership of the panel and the obvious resource implications a deprivations decision carries with it) and was therefore incompatible with article 6 ECHR.

The judge however went on to say that the appointment of a fully independent panel, when combined with the supervision of the court on judicial review, would provide a sufficient procedural safeguard to make the process article 6 compliant. The Complaints Procedure Directions 1990 required the council to appoint a panel of three people, ‘at least one‘ of whom must be an independent person; so the appointment of three independent persons would be in keeping with the Directions. No change in legislation was therefore necessary to achieve article 6 compliance: it simply required a change of practice, so no declaration of incompatibility was granted.

 

Secretary of State for Health v The Personal Representative of Christopher Beeson [2002] EWCA 1812

*NB the Court of Appeal has reversed that part of the decision relating to the compliance of the complaints procedure with article 6 of the Convention

The Court held that the availability of judicial review of the complaints panel’s decisions was sufficient to cure its apparent lack of independence and impartiality. The fact that the first decision maker did not independently satisfy art 6 did not necessarily render the quality of that decision valueless.  In this case, there was no evidence that the panel could not or would not arrive at a fair and reasonable recommendation.  It was not to be assumed that the two Council members would have entertained, even subconsciously, a disposition towards the protection of Council funds. If there was no reason of substance to question the objective integrity of the first instance process (whatever might be said about its appearance) the added safeguard of judicial review would very likely satisfy the art 6 standard unless there was some special feature of the case to show the contrary. The scheme here was exactly of the kind where the first decisions were properly confided within the public body having responsibility for its administration.  Once it was accepted that the operation of the statutory scheme had to be looked at as a whole, the fact that a particular instance might be specially burdened with factual dispute could not affect the general legality of the arrangements in place for deciding issues of entitlement, even though in any particular case there may be special circumstances calling for special scrutiny. 

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