Case digest

Public law:

Breach of the right to a family life was justified by the high demand for care for the elderly in the context of a restricted budget
R (On the application of Dudley) v East Sussex County Council:
R (On the application of Whitbread) v East Sussex County Council (2003) QBD 16/4/2003

Morton care home, a council-owned, long-term residential care home for the elderly, had permanent residents, day-care users, respite-care patients and benefited the carers of the respite-care patients. Each group was represented at the hearing but all parties agreed that the issues could be decided by a consideration of Mrs Dudley’s (D) case.

On the 18 December 2002, East Sussex County Council (the council) decided to close the home on the basis that alternative appropriate care could be provided more cheaply in the private sector and the existing site could be used for the provision of much needed intermediate care with the aid of a £1m government grant. The council had consulted those affected to make representations and there had been assessments of the needs of the individuals concerned.

The residents sought judicial review of the council’s decision to close the home. D argued that:

The consultation had been unfair because:

The information provided by a letter of 7 October 2002, used euphemistic language, avoided any direct reference to the closure of the home and had been unclear;
The council had pre-judged its decision to close the home before the completion of the consultation;
The consultation with residents had been insufficient, rushed and foreshortened;

There had been a failure to discuss re-location en masse.
The council had been unreasonable by failing to take into account a possible increase in the mortality rate for long-term care residents who had been moved, the needs of the residents and government guidelines together with a report from Plymouth;
The council had failed to take account of D’s rights under Art. 2 (right to life), Art. 3(prohibition to degrading or inhuman treatment) and Art. 8 (right to family and private life) of the European Convention on Human Rights.

HELD:

The consultation process had not been unfair. The council had made it clear that closure of the home was a possibility and while it might have had a pre-disposition to close the home, that had not amounted to a pre-judgement. In addition, all residents had the opportunity to make representations during the consultation, which had not been rushed or foreshortened. The consultation had been sufficient and had taken into account the special relationships between the residents so they would be re-located together;
The council had been aware in general terms of the risk of mortality. The care assessments had been sufficient to properly consider the needs of residents. The Plymouth report had merely been a local-area report that did not have the authority to set guidelines for all. The government report concerned long-stay NHS patients, which was different from residential-care patients;
The evidence had not supported a breach of Art. 2, the threshold to engage Art. 3 had not been crossed and any breach of Art. 8 had been justified by the high demand for care for the elderly in the context of a restricted budget.

Public law case digest compiled by Caroline Bielanska, a solicitor, TEP and freelance consultant. She can be contacted at: caroline.bielanska@ntlworld.com.

Private law:

Re Clough-Taylor deceased, Coutts & Co v Banks & Others [2003] WTLR 15

This case considered an executor’s duty to collect assets specifically bequeathed and whether it included a duty to recover assets by litigation.

Mrs Clough-Taylor made a specific bequest of a chattel to the first defendant as specific legatee. After Mrs Clough-Taylor’s death, someone else removed the chattel, claiming that it was his by virtue of a lifetime gift. The specific legatee argued that the executor was obliged to take steps, including litigation, to recover the chattel. In making this contention, she relied on Section 25 Administration of Estates Act 1925, which provided that personal representatives were under a duty to collect and get in the real and personal estate of the deceased and administer it according to law. The executor applied for directions as to whether to start proceedings to recover the chattel. The specific legatee, unsurprisingly, also wished the residuary estate to bear the costs and risks of litigating to recover the chattel. The residuary beneficiaries of the estate (who were charities) argued that the executors should assent the chattel and therefore assign any cause of action, including the right to litigate, to the specific legatee who could then exercise it if she wished to do so, but at her own cost.

It was held that, although the chattel may or may not have been an asset of the estate at death, on the basis that it was not required for the payment of debts or expenses or for any other purpose of administration, it was open to the executor to vest it by assent in the specific legatee. An executor was only under a duty to take normal or routine steps to collect in any assets and see that they were delivered to the legatee. The court said that it was not saying that it was not proper for the executor to have investigated the position regarding the chattel, but having done so, it was right for the executor to then “draw a line” and not to take further steps other than to assent. The specific legatee would, therefore, bear the costs and the risk of failure of any steps taken to recover the asset but would also obtain the benefit if successful.

The decision is, therefore, a natural extension of the rule that, unless stipulated otherwise, specific legatees bear the cost of expenditure such as packing, transport, insurance, upkeep and foreign duties. It might be a useful case in seeking to restrain executors who believe that disputes over assets, which do not form part of residue, can be conducted at the expense of the estate.

Marshall & Others v Hills & Others (Lawtel 20 March 2003)

Taking into consideration the factual background to the making of a deed of variation, in this case the term “as shall survive me” included grandchildren of the first claimant who were born after the death of the testatrix but before the first grandchild attained the age of 25.

The first claimant had applied for a declaration as to the true construction of a deed of variation; she was the daughter of the testatrix who had died in 1993 and the second and third claimants were her grandchildren, both of whom had been born after the death of the testatrix. The first defendant was the only grandchild of the first claimant born before the testatrix had died. The testatrix’s will left her residuary estate on trust for such of her daughters as should survive her and in equal shares if more than one.

Three daughters survived the testatrix and, as a result, the first claimant became entitled to one third of the estate. She decided to vary £60,000 of her entitlement for the benefit of her grandchildren. At a time when she only had one grandchild (the first defendant) she entered into a deed of variation that provided that the £60,000 be directed to “such grandchildren as survive me and reach the age of 25 and if more than one, in equal shares”. The first claimant submitted that the court should apply a purposive construction to the deed of variation and as a result, hold that the grandchildren born after the testatrix’s death but before the first grandchild attained the age of 25 should be included.

Mr P Leaver QC agreed, holding that the true construction of the deed was to include all the first claimant’s grandchildren born after the testatrix’s death but before the first grandchild attained the age of 25. He had approached the matter on the basis that the primary meaning of “survive” was to outlive and that having decided this, the court had to bear in mind the factual situation in which the deed of variation was entered into and the wording of the deed itself.

Langham (Inspector of Taxes) v Valdema [2002] EWHC 2689

This case concerned the circumstances in which an inspector of taxes could make adjustments to a self-assessment return after the deadline for so doing had expired.

The inspector justified adjustments made to the taxpayer’s self-assessment return after the deadline, on the basis that he was entitled to make such adjustments under Section 29(5) Taxes Management Act 1970 (as amended). He said this was because, on the basis of the information made available to him before the deadline date, he could not reasonably have been expected to realise that there was an error in the assessment of the tax payable. The general commissioners upheld the taxpayer’s appeal against the adjusted assessment and the inspector appealed to the High Court.

It was held by Park J that the words of Section 29(5) did not restrict the sources of information, which it was reasonable to expect the inspector to have to the return itself and the accompanying documents. In this case, it might be true that the error could not have been discovered solely from those documents, but that did not mean that information that the inspector could reasonably be expected to have known or have found out (and which was readily available to him) could be excluded. He had plenty of time before the deadline to take the few simple steps that would have led him to conclude that the self-assessment return was insufficient and it was reasonable to expect him to have taken those steps. The appeal was dismissed.

Private law case digest compiled by Julia Abrey, a partner at Withers LLP. She can be contacted at: julia.abrey@withersworldwide.com.