Special case feature...

Robertson v Fife Council.

Relevance of the individual’s own resources to obtaining care. 25.7.02[2002] UKHL 35

The House of Lords has confirmed that an individual’s own resources are not relevant for the purposes of assessment of their needs. Although a Scottish case it is relevant to English and Welsh law as time and time again practitioners are faced with the

contention that a self-funding client is not the responsibility of the council. This case was particularly important because it centred on resources that comprised of notional capital. If finances were held to be relevant at the needs assessment stage it was possible for a person to be denied care based on notional capital leaving them particularly vulnerable and possibly destitute.

The facts

The case concerns Mrs Robinson who inherited her home from her mother when the property was divided between her brother and herself. On 9 October 1995 Mrs Robertson gave her property to her three sons for love, favour and affection but she continued to occupy the house as her home. During 1997, she began to suffer from dementia but by March 1998 she had become incapable of living on her own.

Fife Council’s social services department assessed her needs and concluded she was in need of long-term care. As such she was admitted into a residential care home.

As would happen in England, a financial assessment of her means was conducted in accordance with the National Assistance (Assessment of Resources) Regulations 1992 in order to determine her ability and liability to pay for the cost of her accommodation under s 22(1) of the National Assistance Act 1948. On the basis that she had under the prescribed limit (then £16,000), the council concluded that she did not have to fund her care.

As time passed Mrs Robertson’s mental health deteriorated she was re-assessed as requiring nursing home care and moved on 1 December 1998 to a nursing home. A further financial assessment was conducted and it was at this point the council became aware of the prior gift of the home. They concluded that the gift was made, partly at least, for the purpose of reducing the charges which she would be liable to pay for her accommodation and nursing care and as such she had notional capital of between £35,000-£40,000. They informed her that they would not continue to provide her with residential nursing care until her capital assets, including her notional capital had been reduced to below the upper threshold of the prescribed limit. However, pending the final legal outcome, the council were continuing to fund Mrs Robertson’s care in the nursing home.

The council’s case

The council’s argument, which was upheld on the appeal in April 2001 was that the statutory authority for the decision was found in sections 12 (3A) and (3B) of the 1968 Act, which provides as follows:

“S12 (3A) In determining for the purposes of this section 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. (3B) For the purposes of subsection (3A) of this section:

(a) A person’s capital shall be calculated in accordance with assessment regulations in the same way as if he were a person for whom accommodation is proposed to be provided under this Act and whose ability to pay falls to be assessed for the purposes of section 22(3) of the National Assistance Act 1948;

(b) “The capital limit for the purposes of section 22 of the National Assistance Act 1948” means the amount for the time being prescribed in assessment regulations as the amount that a resident’s capital (calculated in accordance with such regulations) must not exceed if he is to be assessed as unable to pay for his accommodation at the standard rate.”

The council argued that section 12 A (1), which creates a wide duty to promote social welfare by making available advice, guidance and assistance (which includes the provision of residential accommodation) should be read with section 13 A (1) which creates a duty to provide suitable residential nursing accommodation for persons who appear to them to be in need of such accommodation because of infirmity, age, illness or mental disorder. As such, they argued, it permits a local authority to take into account a person’s finances (including notional capital) in deciding whether or not to provide the person with residential nursing accommodation under section 13A (1).

The section 12 issue

The first issue the court considered was whether the decision to provide residential accommodation under section 12 had anything to do with the provision of residential accommodation with nursing under section 13A. These sections are quite unlike the provision to arrange residential accommodation contained within section 21 of the National Assistance Act 1948. In England and Wales the term residential accommodation has in case law1 been widely interpreted to include hostel accommodation, although in its more usual context it involves residential as well as nursing home accommodation². Statutory provision in Hope J made clear that Sefton had made two errors. The first was to ignore the National Assistance (Assessment of Resources) Regulations and the second was to take finances into account at the needs assessment stage separate in Scotland.

Prior to the landmark Sefton³ case, which resulted in changes in particular to section 12 (3A) and 3(B) (see above), subsection 12 (4) had provided that assistance might be given unconditionally or subject to such conditions as to the repayment of the assistance, or of its value, whether in whole or in part, as the local authority might consider reasonable having regard to the means of the person receiving the assistance and to the eligibility of the person for assistance from any other statutory body. Such a section shows that a person in need requiring assistance was not to be denied assistance merely because the means of the person were such that he would be able to repay its value in whole to the local authority⁴. Guidance issued stated that the assessment of finances should follow the needs assessment and the provision of services should not be related to the ability of the user to meet the cost⁵. Guidance issued in England and Wales is similarly worded⁶.

Lord Hope of Craighead was of the opinion that the effect of section 12(2), which simply defines in general terms the persons to whom the local authority may provide the social welfare services defined in section 12 (1). Although sections 12 (1) and 13A (1) are similar they are not identical as the latter contains its own definition of the persons to whom such services can be provided which states, “(1) Without prejudice to section 12 of this Act, a local authority shall make such arrangements as they consider appropriate and adequate for the provision of suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such accommodation by reason of infirmity, age, illness or mental disorder, dependency on drugs or alcohol or being substantially handicapped by any deformity or disability”. In addition there are no words, which could indicate that the service under section 13A is to be provided under section 12.

Hope L concluded on this point that the local authority does not have power under section 12 to provide nursing home accommodation but only residential care and as such the duty to provide nursing accommodation under section 13A is self contained and freestanding.

The section 12 (3A) issue

The lower courts had held that in performing their duties under s.13 A, the local authority were simultaneously performing their duty under s.12. They could have regard to the person’s resources when, in the light of the assessment carried out under section 12A, they are determining whether to arrange residential nursing care in fulfilment of the duty imposed on them by sections 12 and 13A .

The second issue on the appeal fell into two parts: (a) whether the direction in section 12 (3A) (“In determining for the purpose of this section whether to provide assistance by way of residential accommodation to a person...”) applies to the question whether they should provide residential nursing accommodation under section 13A and (b) whether the direction to ‘disregard’ capital under the limit in answering that question indicated that capital above the limit is to be brought into account at that stage.

Hope L could find no reason to interpret the words in any way other than in their ordinary meaning. As such, there is no indication that the words were intended to be applied to a determination of whether to provide residential nursing accommodation under section 13A⁷.

In Sefton, the local authority had assessed Mrs Blanchard as being in need of residential accommodation once her finances fell below the prescribed limit. Due to a funding crisis the council operated their own system of prioritising and would only consider funding when Mrs Blanchard’s funds were reduced to £1,500. As a consequence they had ignored the National Assistance (Assessment of Resources) Regulations 1992. The Court of Appeal had held that the council were wrong in their approach and they should have had regard to the statutory provisions. Hope J made clear that Sefton had made two errors. The first was to ignore the National Assistance (Assessment of Resources) Regulations and the second was to take finances into account at the needs assessment stage.

The effect of the amendment in English law to section 21 of the 1948 Act, which was made by section 1 of the Community Care (Residential Accommodation) Act 1998⁸ was to make it clear that capital under the limit set by the Regulations was to be disregarded when determining whether the person was in need of care and

attention that was not otherwise available to them. The alteration in Scotland however was not so well drafted and as a result the majority of the Inner House had interpreted section 12 (3A) and (3B) as containing a direction that the person’s capital was to be taken into account by the local authority when they were considering whether the person was in need of assistance by way of residential accommodation⁹. The direction in section 12 gives no indication that it is to be applied when making decisions for nursing accommodation under section 13A.

In respect of the second limb of the issue Hope L said that the Inner Court had read too much into the words “shall disregard”. The subsections do not say that any capital, which the person has which is above the limit is to be taken into account in determining whether to provide assistance at the needs assessment stage. The words are simple and unambiguous in that all they say is that capital below the limit is to be disregarded for that purpose. Capital is only relevant at the financial assessment stage and should follow the needs assessment and not come within the needs assessment.

The section 12A issue

The third issue was whether, assuming that the assessment required by section 12(3A) did not apply to the provision of residential nursing accommodation under section 13A, the local authority were entitled to have regard to the person’s capital resources when they are considering under section 12A (1) (b) whether the person’s needs ‘call for’ the provision of this service by them.

Section 12A is similarly worded to section 47 of the National Health Service and Community Care Act 1990, which creates a duty on local authorities to assess needs for community care services and then having regard to the assessed needs consider whether the needs call for the provision by them of such services. Fife council had argued that it was at the second stage of making a decision that they were entitled to take capital into account. Again Hope L interpreted the words ‘call for’ in their simple meaning. He said that the words are directed to the person’s needs for services, which the local authority is able to provide not to whether the person is able to pay for them. There is no indication in section 12 that it is concerned with the person’s means or that it is proper to take account of the person’s capital at any stage during the needs assessment.

Hope J concluded that the council were wrong to take into account capital, albeit notional capital when assessing Mrs Robertson’s need for nursing home care. The guiding principle is that the provision of services is not to be related to the ability of the person to pay. Finances follow the needs assessment, not the other way around.

Thoughts on the case

The fear of clients not obtaining services on the basis of notional capital has, notwithstanding Department of Health Guidance hung over practitioners heads like a dark cloud. This case is good news as it reinforces what should be happening in practice but which experience shows does not always. In particular, it may also assist those clients who have had their residential care arranged by social services pending the sale of their home and are then notified (sometimes by the home itself) that the person is deemed to be self funding their care and ‘the contract is broken’. As such the resident is requested to pay the usually higher accommodation fee to the home. If the needs remain as originally assessed then the local authority must continue to fulfil that need¹⁰. Practitioners should ensure clients pay the assessed fees direct to the local authority. There is no loss to the local authority if the resident pays the full contract or standard rate, other than the cost of administration. Until care homes have one price for all there remains the incentive to go via the local authority for placements, so clients can take advantage of the local authorities relatively strong bargaining position.

The case confirms that residents who are treated as having notional capital remain the responsibility of the council in the event they are unable to fund their own care.

It can only be hoped that all future guidance issued from the Department of Health keeps reiterating like a mantra ‘finances follows needs’ until such time as all local authorities follow this instinctively.

Reference:

R v Bristol City Council ex parte Alice Penfold [1998] 1 CCLR 315
S.49 Health and Social Care Act 2001 excludes nursing care from community care services.
R v Sefton MBC Ex parte Help the Aged [1997] 4 All ER 532
Par 32 of the judgement
Par 11 Social Work Group Circular SWSG/91
See Guidance on Fair Access to Care Services LAC (2002) 13
Par 45
This has now been repealed by section 53 of the Health and Social Care Act 2001.
Par 714 A of the judgment, which can be found on www.scotscourt.gov.uk/opinions
R v Kensington & Chelsea ex parte Kujtim [1999] 2 CCLR 340

Caroline Bielanska is a solicitor, TEP, lecturer and freelance consultant. She can be contacted at caroline.bielanska@ntlworld.com