Robertson v Fife Council [2001] (Unreported) (Scottish Court of Session, First Division)

NB Overruled by House of Lords:  Robertson v Fife Council [2002] UKHL 35

Residential accommodation – assistance – capital – notional capital – nursing care

When deciding whether to provide someone with assistance by way of residential accommodation, a local authority might properly have regard to their capital, including notional capital. Further, a local authority is entitled to take account of notional capital when determining whether to arrange for the provision of residential nursing care.

This case involved the disposal of capital by a woman to her sons, some 3 years prior to her need for residential care arising.

Section 12 of the Social Work (Scotland) Act 1968 provides a general duty to promote social welfare by providing facilities, including residential accommodation; in which regard, further provisions require a person’s resources to be calculated under the NAA and associated guidance. Section 13A is a specific duty to provide residential care with nursing, where that is the outcome of the assessment.

Regulation 25 of the NAA (Assessment of Resources) Regulations 1992 deals with treating a person as still possessed of capital of which he has deprived himself for the purpose of decreasing the amount he may be liable to pay for his accommodation. These regulations apply equally in England and Wales, although the residential accommodation function, to which charging is linked, is differently worded; so the case is of highly persuasive precedent weight.

Fife Council then included in its assessment of the client’s resources the value of her family home, which she had given to her children for love, favour and affection in 1995, and continued to live there independently. Her dementia was not known or even suspected at the time, and she did not need care until 1998. The value of the home took her over the then capital limit of £16,000.

A challenge to the decision that in these circumstances Fife would not even make contractual arrangements for her placement, resulted in a judgment to the effect that a local authority could properly have regard to capital over the prescribed limit, when deciding whether or not to provide someone with assistance by way of residential care, even if it was notional capital, and decide that it meant residential care was not necessarily to be provided.

The Court also clarified that, even though for the purposes of general community care assessment (section 12A in the Scotland Act), there was no clear right to refer to financial resources of the client, (and government guidance confirmed that general assessment should be needs-led, with financial assessment occurring afterwards), in the context of being considered specifically for residential or nursing accommodation, the client’s financial resources were relevant because the statute specifically said that they were, in the shape of any capital over the prescribed limit.

As for the test to be applied by the council in assessing the intention of the transferor at the time, the Court held that there was no clearer test other than that the statutory criterion was properly addressed: that it was done with the intention of decreasing the amount to be paid for accommodation later on.


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