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Bloomsburry Family law

Family

The treatment of capital: disregards

In the second of three articles, Alan Robinson, of Legal and Welfare Rights Training continues his discussion on the effect of capital on entitlement to income based benefits. Here, he considers what capital is disregarded and when.

Enforcing the new care home regulations and standards

This year, care homes across England and Wales will face a new regulatory framework brought under the Care Standards Act 2000. Professor Jeremy Cooper, a chief training consultant on health and social care examines the implications of the directives on the registration, inspection and regulation of standards in care homes.

Fairer charging policies for non- residential care services

The Department of Health have finally issued their guidance to local authorities on charging policies for home care and other non- residential social services.[1] Caroline Bielanska, a solicitor, lecturer and freelance consultant explores the confusing content of the guidance and its impact on the older client.

Case digest

Case digest Duty to provide accommodation under s21 National Assistance Act 1948R v Tower Hamlets London BC ex parte Abdul Wahid QBD 23.8.01 Mr Wahid (“W”) suffered from schizophrenia and in the past had been admitted as an in-patient for treatment. His health was managed by community support. W lived with his wife and their 8 children in a two-bedroom flat in a large block owned by the council. He was on the council waiting list for a house with 4 or 5 bedrooms but had been informed that the chances of obtaining such a property were “zero”. An assessment of W’s needs were made pursuant to Section 47 of the National Health Service and Community Care Act 1990 which concluded that “his mental stability can only be safely maintained by his transfer into a more congenial and relaxed environment”. W claimed that he needed a housing transfer because of his medical condition and the local authority had a duty to provide such accommodation as the accommodation he needed was not otherwise available to him pursuant to section 21 National Assistance Act 1948. W alleged that his situation was indistinguishable from R v Islington London Borough Council ex parte Bantantu and R v Bristol City Council ex parte Alice Penfold and the council was under a duty to provide the accommodation irrespective of the council’s own resources. HELD There was a clear and binding authority that meant the meaning of  “residential accommodation” could include housing accommodation. If an applicant was in need of care and attention that was not otherwise available to him the local authority were under a duty to provide the accommodation as assessed. However in W’s case the council had not assessed him as having a need for such care. He was mentally stable and was receiving the care and attention he required. The risk that he might become ill exasperated by his unsuitable accommodation was not a present need for care and attention. The need was not urgent and therefore the local authority did not have a duty arising under S.21.Home for life - another case Frank Cowl & Oths v Plymouth City Council 14.9.01 (unreported) Granby residential home was owned and run by the council. The residents of the home were aged between 66 and 92 frail and in poor health. Social services had overspent on their budget and as part of the council’s cutback they approved the closure/transfer of specified residential units for older people which was subject to consultation. In November 2000 two homes were selected for closure one of which was Granby. The Council wrote to the residents stating that: - No decision would be made until full consultation with them and their relatives had taken place; Services would continue until after the consultation process was completed and a decision had been made; And In the event that Granby was to close each resident would be involved in the selection of a suitable alternative home. During the consultation process the council asked the residents and their families whether they had been promised a home for life. In January 2001 the Director for Social and Housing Services produced a report which confirmed that the needs of the residents could be met at other homes and there was no evidence other than assumptions that the residents would have a home for life. On this the Director recommended that the home should be closed. The full council agreed with the recommendation as to the closure of Granby (and the other home) selected for closure. Three of the residents submitted a claim that they had a legitimate expectation that Granby would be their home for their life following express assurances from council employees. They also claimed that the decision to close the home was an infringement of their rights under Articles 2 3 and 8 of the European Convention on Human Rights. HELD The council were aware of the need to consider whether the residents had been promised a home for life and had asked the residents about this. The council had full information of each resident including background health and their abilities and had up to date care plans in respect of those residents. Although not absolutely essential there was no documentary evidence to support the claim of legitimate expectation of a home for life. No evidence was produced which was clear or precise to form an actionable representation made by council employees. The evidence did not establish a home for life promise on which the residents could rely and the council had not been irrational in making their decision. The Court could not interfere in local authority decisions regarding expenditure and budgets where the decisions were lawful in particular as the consultation by the council was adequate The claims under the Convention of Human Rights did not need to be considered until each resident’s case had been considered in the context of a full needs assessment and against the alternative available accommodation. The Convention did not give a right to a home. The council had to balance the right to family life under Article 8 with the financial decisions to close the home something which the council was answerable to the electorate.The deceased had been trading from the property as an Indian restaurant when he purchased the freehold at the same time as completion he entered into the trust deed. The deceased died in July 1997 and his estate was partially insolvent. The deceased had purchased various properties out of business profits that he had not declared to the Revenue hence their interest in his estate. There was evidence that the deceased had wanted to provide for his son but there was no direct evidence that the deed was to put the property beyond the reach of creditors. However from the Revenue’s investigation into the deceased’s entire businesses it could be inferred that putting the asset beyond creditors reach was one of the purposes. The Court held: (1)   The deceased was aware that the transaction put the property beyond creditors reach; (2)   The motive to defeat creditors and the motive to provide for Omar co-existed. There was no overwhelming evidence that the deceased intended to benefit Omar at the date of the Trust deed and therefore the dominant purpose was to ensure the asset was not part of his estate. As such the transaction was to be set aside. Home was not transferred as a deliberate disposal of avoidance of care fees.PR’s of Christopher Beeson v Dorset County Council and the Secretary of State for HealthQBD 30.11.01 Christopher Beeson aged 90 suffered a stroke in March 1997. He was discharged from hospital in early April to his own home where he received intensive levels of home care. (Since 1989 he had been receiving 3 hours per week of home help care.) He was on income support and his home was his only major asset. About a week after returning home he transferred his home to his only child his son. This was due to a concern on his part that following the breakdown of his son’s marriage his son might become homeless; he wanted his son to have somewhere to move should it be necessary. Mr Beeson wanted to live and die in his home and continued to live independently there with community support for two more years when in April 1999 he was admitted to hospital in a state of collapse and exhaustion. He returned home in May but after a fall was admitted back in to hospital in August. In September 1999 he was assessed as needing residential care. The council treated the house as notional capital for the purpose of Regulation 25 of the National Assistance (Assessment of Resources) Regulations 1992. At the time of the transfer the council had not discussed with Mr Beeson the possibility of residential care however the council in making their decision took the view that residential care was inevitable and as such was Mr Beeson’s motive in the transfer. The PR’s challenged the decision on the grounds that the council had misdirected itself in law when reaching their decision and that the decision infringed Mr Beeson’s Human Rights under Article 6(1) (the right to a fair trial) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights which is now embodied within our domestic law. HELD (1) The council had failed to apply the correct test which was to determine the subjective purpose of the disposal. When making the decision the council must have material from which to draw its conclusions that there was a deliberate deprivation of capital for the purpose of reducing liability for accommodation fees. The council had failed to consider properly the circumstances of the disposal and as such had not applied the subjective test in concluding that the motive was a deliberate deprivation. The council’s decision was quashed. (2) The decision by the council under regulation 25 was an issue involving Mr Beeson’s civil rights and obligations within the scope of Article 6 (1) as the council had a statutory duty to provide accommodation and to make a financial assessment of Mr Beeson. The internal complaints procedure was not impartial or independent with no right of appeal to an independent tribunal. Judicial review was not adequate to ensure that the council’s procedures complied with Article 6(1) as the court could not substitute a decision only quash a decision. (3) The claim of discrimination against Mr Beeson failed. (Further and detailed analysis of this case will be in the next edition of this journal) compiled by Caroline Bielanska Solicitor Lecturer and freelance consultant .

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