Case digest

Public law

Person was not a patient pursuant to Section 94(2) Mental Health Act 1983

TAIT v WEDGWOOD & ANOR (2002)

Ch.D (Rimer J) 29/10/2002

In 1976, the claimant had suffered brain damage as a result of leaning out of a train window and hitting his head on a railway bridge. He was awarded damages of £77,000 plus interest against the British Railway Board and he, his father and his solicitor gave undertakings to the court that they would hold the damages on trust for the claimant. Prior to the accident, the claimant had been described as being a slow learner with a below normal IQ.

A recent medical report concluded that, although the claimant still suffered from the disabilities he had before the accident, he had very good verbal comprehension and when facts were explained carefully and slowly he could grasp a situation, make decisions and manage his affairs. He was now married with a child and intended to emigrate to India with his family where he planned to use most of the trust assets to buy a property, and to live on the remainder.

The claimant applied to the court for him and the two defendants as trustees, to be released from undertakings given to the High Court in 1982 in order to wind up a trust and distribute the trust assets.

He submitted that he was not a ‘patient’ pursuant to section 94(2) Mental Health Act 1983 and accordingly had capacity for the purpose of the rule in Saunders v Vautier (1841) Cr & Ph 240.

Held:

In allowing the application, there was evidence that the claimant suffered a degree of mental disorder as defined in s.1(2) of the 1983 Act. However, he had conveyed to the court that he fully recognised his own limitations and that he was always able to make his own decisions. There was no question of him being a ‘patient’ within the meaning of s.1(2). While the court recognised that the claimant suffered intellectual limitations he did have the insight to recognise what they were. As such, he had the requisite decision-making capacity and should be allowed to exercise it. The court considered the case of Martin Masterman- Lister v Jewell & Home Counties Dairies [2002] EWHC 417. Damages awarded under the Human Rights Act 1998 for failure to provide residential accommodation under s21 of the National Assistance Act 1948

R v ENFIELD LONDON BOROUGH COUNCIL, EX PARTE BERNARD (2002)

QBD Administrative Court (Sullivan J) 25/10/2002

This case concerned a husband and wife. The wife was severely disabled with limited mobility, was dependent on an electronic wheelchair, and suffered from incontinence and diabetes. The husband, as his wife’s carer, also looked after the couple’s six children. Following the build up of mortgage arrears, the family was forced to move from its fully-adapted house and took a tenancy in an unadapted property. When the tenancy expired, the couple applied to the local authority for accommodation. The couple argued that the housing provided was not properly adapted to meet the wife’s needs and they were re-housed on 30 June 2000 in a property where they remained until 14 October 2002.

On 15 September 2000, the social services department undertook a number of assessments of the wife’s needs, which indicated that the property was unsuitable since she could not use her wheelchair or access the first-floor accommodation and was confined to the lounge. The care plan stated that the wife needed assistance to move to a suitably-adapted property. An occupational therapist concluded that the property was not adaptable. Eleven months later, the family solicitor wrote to the local authority in astonishment that they had been left in accommodation that did not meet their basic community-care needs. The local authority responded that it was awaiting fresh instructions and failed to respond to a subsequent independent report or to any of the solicitor’s correspondence.

On 12 February 2002, the local authority notified the couple that they were to be evicted from the property but subsequently withdrew this threat, when judicial review proceedings were commenced and the local authority had failed to serve an acknowledgement of service.

The local authority accepted that it was under a duty to make arrangements for the provision of suitably-adapted accommodation under s. 21(1)(a) National Assistance Act 1948, but provided no explanation for the failure to comply with that duty or to act on social services’ recommendation. Judicial review was granted and the local authority was ordered to provide the couple with suitable accommodation within six months. The claim for damages was adjourned. The order was not complied with until 14 October 2002 during which the local authority made no offer of suitable accommodation until they were threatened with court action to show cause why the Director of Social Services should not be committed to prison for contempt of court. The local authority gave no explanation for the delay or failure to respond to correspondence.

Held:

Although the conditions in which the couple were forced to live could be seen by some as degrading, the court was not persuaded that the minimum level of severity threshold had been crossed. Although not conclusive, the fact that there was no intention to humiliate or debase the couple was an important consideration. Cases concerned with prisoner’s rights were referred;
Following the needs assessments, the local authority was under an obligation to take positive steps to enable the couple and their children to lead as normal a family life as possible, which would have secured the wife’s physical and psychological integrity and restored her dignity as a human being. The failure to act showed a singular lack of respect for their private and family life;
If the local authority had taken steps once a problem had been drawn to its attention, it might be the case that nothing more would be required in order to afford just satisfaction. That was not the case here and the court was satisfied that an award of damages was necessary to give just satisfaction;
The court said it was difficult to see why awards should not be comparable to tortious awards, although on the facts of this case there was no comparable tort. However, the awards recommended by the local government ombudsman were of great assistance. The consequences of minor injuries were not totally comparable with the humiliating conditions endured by the couple in the 20-month period and different policy considerations were in play. The award set should not be minimal because that would diminish respect for the policy underlying the Human Rights Act. There was no justification for a reduction that would push damages under s.8(3) of the 1998 Act below the level of tortious damages. The local government ombudsman’s recommended awards were the best available comparison because this case was, in essence, a case of maladministration. The couples’ problems were compounded by the local authority’s conduct and the award should be at the top end of the £5,000 to £10,000 range. The appropriate award was £10,000 to be divided as £8,000 to the wife and £2,000 to the husband.

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

Private law:

1. Race -v- Race [2002] (ChD) 25 July 2002 (unreported)

The case considered whether there was a presumption of ademption in the situation where, the testator of the Will having given a half share of residue, which half share included the interest in a property, the testator then made a lifetime gift of half his interest in the same property to the same donee. It was held (Behrens J) on the basis of the presumption against double portions, that the presumption of ademption could arise and that the gift of the half interest in the property was indeed an acceleration of the bequest in the Will. In reaching this conclusion, the judge relied heavily on Lindsay J’s Judgment in Cameron [1999] Ch 386 which held that the presumption against double portions is rebuttable but arises on the basis that a donor did not intend to give two portions to the same donee. Where, therefore, a donor had made two gifts, both having the characteristics of a portion to the same donee, unless a contrary indication could be shown by evidence, the latter gift would be presumed to be wholly or in part in substitute for the former which would therefore adeem.

The interesting point arising in this case was whether the rule against double portions applied to bequests of land. It was submitted on behalf of the donee that a gift of the half share was a gift of realty rather than personalty (as a result of the Trusts of Land and Appointment of Trustees Act 1996) and thus fell outside the double portions rule. This was rejected by the court on the basis that when the Will was drafted, the doctrine of conversion applied to land held on trust for sale and thus the bequest would have been treated as personalty. This is an odd conclusion, however, as it is based on the presumed intention of the donor being dependent on the coming into force of an Act of which he probably had no knowledge.

2. Soutter’s Executry -v- IRC [2002] STC [SCD] 385

This Scottish case would appear to support the Revenue’s recent contentions that Deeds of Variation must be capable of taking effect “in the real world”.

The testator was the sole owner of a property in which she resided with G. By the terms of the testator’s Trust Disposition and Settlement, G was granted a liferent (akin to an interest in possession) and occupation of the property if the testator predeceased her. This occurred and G continued to live in the property until her own death a year later. As G died within two years of the testator, the executors and beneficiaries of both estates agreed to vary the testator’s estate to remove the liferent provision. A Deed of Variation was executed and a claim made under section 142 IHTA 1984.

The Revenue contended that, for the deed to be effective, the right being assigned or renounced had to belong to the donor or the person renouncing at the time of the assignment. Because the liferent had ceased on G’s death, it could not be passed to her executors and consequently, they held no property which could be varied within section 142. Although the deed was deemed to be made by the testator, this was only a deeming for tax purposes and could not affect the law of property. The testator’s executors appealed, arguing that as G could have varied the testator’s Will by renouncing her liferent, her executors could do the same standing in her shoes. It was held that G’s executors could not have continued to receive the liferent after G’s death and therefore they had nothing to give up or vary. The liferent was not (and could not) be assigned to them. The Deed of Variation had to vary disposition and in this case there was no disposition after G’s death for the executors to vary as the deeming provisions in section 142 did not create any property in the hands of the executors and their appeal was dismissed.

Although this case does seem to strongly support the Revenue’s present argument, it is worth remembering that it turned very much on its facts and the special provisions of Scottish trust law. Commentators on the case have argued that had the Will Trust maintained property which produced income, the variation would have been effective. The case itself did not consider the interpretation of section 142 very closely.

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