Community care – residential accommodation – charging – deprivation of assets
The House of Lords ruled that a Scottish local authority was not entitled to take a person’s capital into account when considering whether that person’s needs called for the provision of residential accommodation. A person’s capital was only relevant at the later stage of deciding whether or not that person should be charged for the provision of residential accommodation.
Section 12 of the Social Work (Scotland) Act 1968 provides a general duty to promote social welfare by providing facilities, including residential accommodation. Section 12(3A) provides that in determining whether to provide assistance by way of residential accommodation to a person, a local authority shall disregard so much of the person’s capital as does not exceed the capital limit for the purposes of section 22 of the National Assistance Act 1948. Section 12A provides: (1) … where it appears to a local authority that any person for whom they are under a duty … to secure the provision of community care services may be in need of any such services, the authority – (a) shall make an assessment of the needs of that person for those services; and (b) … shall then decide whether the needs of that person call for the provision of any such services. Section 13A is a specific duty to provide residential care with nursing, where that is the outcome of the assessment.
This case involved the allegedly deliberate disposal of capital by a woman to her sons, some 3 years prior to her need for residential care arising. She had transferred her home to her children for ‘love, favour and affection’ in 1995, and continued to live there independently. Though her dementia was not known or even suspected at the time of the transfer, and she did not need care until 1998, the Council took the view that she had transferred the ownership of her house to her children for the purpose of reducing the charges for which she would be liable. Fife Council then included in its assessment of the client’s resources the value of her family home as notional capital, which took her over the then capital limit of £16,000. The Council’s argument that it was entitled, in those circumstances, to refuse to even enter into arrangements for the provision of residential accommodation, was accepted at first instance and by the Scottish Court of Appeal.
The House of Lords, however, reversed those decisions, stating that s13A was a stand-alone section. The duty to be performed under section 13A was not to be seen as a particular example of the general duties to be performed under section 12 but as a separate and distinct duty. The Council was therefore not entitled, as it had argued, to rely on s12A, when read with s13A, as providing authority for the proposition that an authority could take financial resources into account in deciding whether to provide residential accommodation with nursing under that section.
Their Lordships further reasoned that the direction in s12(3A) that a local authority disregard capital under the limit in determining whether to provide assistance by way of residential accommodation under s12, could not be read to imply that a local authority might properly take a person’s capital, including notional capital, into account at that stage as relevant to need. A person’s capital was only relevant at the later stage of deciding whether to make a charge for the accommodation provided. Their Lordships referred to the Sefton case, in which the local authority had erred by taking into account capital below the limit set by the regulations and by taking account of capital in considering the question whether care and attention was ‘otherwise available’, rather than at the charging stage, which is the stage to which the regulations are directed. That case had resulted in an amendment to s21 NAA 1948, directing local authorities to disregard so much of a person’s capital as does not exceed the limit, in determining whether care and attention are otherwise available to that person. S12(3A) Social Work (Scotland Act) 1968 was the equivalent of the new sections 21(2A) and (2B) NAA 1948 which applied to England and Wales.
Their Lordships added that the guiding principle was that the provision of community care services to a person who was in need of them was not related to the ability of the person to meet the costs. The assessment of need and decisions as to whether they called for the provision of any of the community services came first. The assessment of means, and the requirement to pay what the person could afford, came afterwards. Notional capital could be taken into account at the stage when charges were being made for the services. But it had to be left out of account at the earlier stage when decisions were being taken whether the duty to provide those services has been triggered.