Robertson v Fife, a Scots case, suggests that it will be relatively easy for the authority to arrive at a deprivations decision, so long as it pays attention to some basics.
On the other hand, a human rights challenge involving Dorset County Council has been won at High Court level, in relation to the compatibility of the deprivations decision-making power which the law gives to local authorities, with article 6 of the Convention.
Mr Beeson, an elderly gentleman, had gifted his property to his son in 1997, after the collapse of his son’s marriage, out of concern that his son might otherwise become homeless. He had continued to live in the property and was keen to continue living independently. However, in 1999 his health deteriorated rapidly and, after sustaining life-threatening cuts in a fall at his home, he was assessed by the local authority as needing residential care. Mr Beeson duly made an application for assistance with the cost of his residential placement.
Regulation 25(1) of the National Assistance (Assessment of Resources) Regulations 1992 states that ‘a resident may be treated as possessing actual capital of which he has deprived himself for the purpose of decreasing the amount he may be liable to pay for his accommodation…’.
The local social services authority decided that, in making a gift of his house to his son, Mr Beeson ‘deprived himself of an asset with which he could have funded his residential care’. Mr Beeson appealed against the decision through the authority’s internal complaints procedure. The appeal was rejected by the Complaints Officer and Mr Beeson’s second level appeal was also rejected. The third and final level of appeal was to a panel consisting of two of the authority’s councillors and an ‘independent’ chairperson appointed by the authority. The panel’s function was advisory, the final decision lying with the Director of Social Services.
Although Mr Beeson’s evidence to the panel was that he was unaware of the ‘deprivation of assets’ regulations when he gifted his house to his son, and that he had never imagined he would cease to live independently, and need care, the panel was of the view that ‘ignorance of the law is no defence and accordingly there had been a deprivation of assets…’. Adopting the panel’s recommendations, the Director of Social Services decided that Mr Beeson had intentionally deprived himself of an asset for the purpose of avoiding payment and informed him that either he or his son could pay the accommodation costs, or the authority could place a charge on the property.
Mr Beeson sought judicial review of that decision on the grounds that:
- his ignorance of the regulations meant that he could not have deprived himself of his housefor the purpose ofavoiding accommodation charges;
- unless judicial review provides an opportunity for a full appeal against the authority’s decision, then the authority’s complaints procedure violates article 6, notwithstanding that the procedure is in accordance with the Secretary of State’s directions and guidance;
iii. in the absence of an article 6 compliant procedure, Regulation 25 is unlawful.
It was argued that the complaints procedure is neither ‘independent’ nor ‘impartial’ given that the authority has an obvious interest in the decision in play, and the question therefore for the court is whether the article 6 defect can be cured by the judicial review process.
The Administrative Court held that the council’s decision was based on a legal misdirection in that it had failed to apply a subjective test in deciding the purpose for which Mr Beeson had gifted his house to his son. It also held that the complaints procedure by itself was inadequate to secure the requisite degree of independence and impartiality (bearing in mind the councillors’ membership of the panel and the obvious resource implications a deprivations decision carries with it) and was therefore incompatible with article 6 ECHR.
The judge however went on to say that the appointment of a fully independent panel, when combined with the supervision of the court on judicial review, would provide a sufficient procedural safeguard to make the process article 6 compliant. The Complaints Procedure Directions 1990 required the council to appoint a panel of three people, ‘at least one’ of whom must be an independent person; so the appointment of three independent persons would be in keeping with the Directions. No change in legislation was therefore necessary to achieve article 6 compliance: it simply required a change of practice, so no declaration of incompatibility was granted.