denotes premium content | Sep 5 2008 Regular
posted 11 Mar 2008 in Volume 13 Issue 3
Case Digest
Provision of accommodation under the National Assistance Act 1948
R (Pajaziti) V Lewisham LBC [2007] EWCA Civ 1351
Rasim and Hylkije Pajaziti were from Kosovo, and had arrived in the
Mr Pajaziti applied to the Council for assistance under s.21 of the National Assistance Act 1948. The local authority would be under a duty to arrange residential accommodation for him if they were satisfied that he was in need of care and attention that was not otherwise available. For asylum seekers, such accommodation was not to be provided if the care and attention had arisen solely as a result of being destitute or because of the physical effects, or anticipated physical effects,of his being destitute.
Mr Pajaziti relied on the reports of a consultant psychiatrist, who concluded that both he and Mrs Pajaziti had suffered “a major depressive episode,” and that “the most powerful intervention” would be to offer them “settlement,” or in Mrs Pajaziti’s case “permanent settlement,” in
The Council decided that the need for care and attention had not been made materially more acute by circumstances other than a need for accommodation and funds and refused accommodation. Its decision was upheld by the High Court and so the case was appealed.
HELD:
The Council had made their decision on the erroneous basis that at all stages, Mr and Mrs Pajaziti’s care and attention needs had been solely for medical services. They had and continued to have such needs, but also had a separate and additional need for care and attention that was required by all who were condemned to a life on the streets, being care and attention in the shape of shelter and warmth, capable of being provided by the type of residential accommodation available under s.21.
As they were ill, the crucial question was whether their need for this separate head of care and attention was made more acute by the depressive disorder from which they were both suffering and the fact that, absent any s.21 assistance, they would have to cope with that disorder on the streets (R v Wandsworth LBC Ex p O (2000) 1 WLR 2539 applied). The council had failed to answer this decision and their decision was materially flawed. As such the decision was quashed by the Court.
Potentially exempt transfer mistake
Executors of the estate of Ronald Griffiths v Trustees Of
Mr Griffiths had in April 2003, following tax advice, transferred shares into a short term discretionary trust with reverter to settlor, jointly with his wife granted a deferred lease of their home to be held in favour of trustees and, in February 2004, transferred his reversionary interest in the shares to a third trust.
Unfortunately in 2004, Mr Griffiths was diagnosed with lung cancer and died in April 2005. As all the dispositions were potentially exempt, they fell to be chargeable, leading to an inheritance tax bill in excess of £1m. Mr Griffiths had made a will leaving a life interest in his residuary estate to his wife. Had he not made the transfers there would have been no inheritance tax immediately payable.
His executors brought proceedings to set aside the PETs on the basis that the transfers were made under Mr Griffiths’ mistaken belief that there was a real chance that he would survive for seven years, and that equity would set aside a voluntary transfer in such circumstances.
The court considered all the medical evidence at length, and found that Mr Griffiths did not suffer from lung cancer in April 2003 and that he had a life expectancy of between seven and nine years at that point, but that he was suffering from lung cancer in February 2004.
HELD:
1. A mistake about an existing or pre-existing fact of a sufficiently serious nature, was capable of bringing the equitable jurisdiction into play (Ogilvie v Littleboy (1897) 13 TLR 399 considered; Lady Hood of Avalon v MacKinnon (1909) 1 Ch 476 Ch D applied);
2. The executors had to show that if Mr Griffiths had been aware of the true facts he would not have made the PETs, rather than merely showing that he might have acted differently, (Sieff v Fox (2005) EWHC 1312 (Ch), (2005) 1 WLR 3811applied). It was not necessary for the executors to show what Mr Griffiths would have done if he had not made the mistake;
3. There was no evidence that Mr Griffiths had made any relevant mistake at the time the first two transactions had taken place or that, if he did, it had not been shown that he would have acted differently. In April 2003, Mr Griffiths did not have lung cancer. He knew that he had rheumatoid arthritis, so he did not make a mistake about his state of health. Further, in respect of the deferred lease, that was a joint grant to Mr and Mrs Griffiths, and she had not applied for it to be set aside. Even if she had it would have been necessary to show that she too made a relevant mistake. As such neither of the transactions made in April 2003 would be set aside;
4. The conditions allowing the equitable jurisdiction to be exercised were established in relation to the assignment of the reversionary interest in the shares. The court was satisfied that Mr Griffiths would not have made the PET had he known that he was suffering from lung cancer. At that time he was unaware of that fact and therefore he made a mistake about his state of health. Had he known about the cancer, he would also have known that his chance of surviving for three years, let alone seven, was remote. The assignment was voidable rather than void ab initio. It was unjust for the donees to retain the gift in circumstances, which imposed upon the donor an unintended liability to a very substantial amount of inheritance tax. The court therefore exercised its discretion and set aside the transfer of the reversionary interest in the shares.
Failure to consider housing needs against Havering London Borough Council Complaint no 06/A/10428
The local government ombudsman has found failures by Havering Council, which meant that an elderly, disabled woman had to live in completely unsuitable accommodation for at least five years longer than necessary. ‘Mrs Oak’ (real name withheld for legal reasons) was 86 years old, partially sighted, deaf, and suffered from bronchial asthma and arthritis in all major joints. She lived with her daughter and granddaughter in a second-floor three-bedroom maisonette, which was reached from street level by three sets of 14 steps. There was no lift. She could not manage the stairs to reach the property, or those within the maisonette to her bedroom and the only bathroom, without assistance.
Her daughter, the tenant, applied for a transfer for the family to a property with level access and asked the council to award her additional priority due to Mrs Oak’s medical problems. In January 2003, a council officer visited Mrs Oak to assess her housing needs, and reported that she was “practically a prisoner in the home”.
Mrs Oak complained that the council took too long to deal properly with the housing transfer application and, as a result, she had to live in completely unsuitable accommodation. This was upheld. The ombudsman also concluded that the Council neglected to consider Article 8 of the Human Rights Act 1998, which says that everyone has the right to respect for his/her private and family life.
The council offered suitable accommodation to address the family’s housing needs. In addition, the ombudsman recommended that the council pay compensation of £10,000 to Mrs Oak’s daughter, and review all re-housing applications over the last five years to see whether others have been affected in a similar way, applying appropriate compensation to anyone so affected.
Case digest prepared by Caroline Bielanska, Chair, Solicitors for the Elderly www.solicitorsfortheelderly.com
