Robertson v Fife Council

The House of Lords held that a local authority must assess a person's need for community care services under section 12A and, where those needs "call for" residential accommodation with nursing under section 13A of the Social Work (Scotland) Act 1968, the authority may not take the person's capital or notional capital into account at that stage. Section 13A is a free-standing duty distinct from the general duties in section 12. Section 12(3A) (inserted by the Community Care (Residential Accommodation) Act 1998) requires that capital below the statutory capital limit be disregarded when determining whether to provide assistance for the purposes of section 12, but does not authorise taking notional capital into account when assessing need under section 12A or when deciding whether to provide residential nursing accommodation under section 13A. Means (including notional capital) may be taken into account at the subsequent charging stage under the National Assistance Act 1948 and the relevant assessment regulations (including the regime for notional capital under the 1992 Regulations).

The appellant, Mrs Robertson, suffering from senile dementia, required long-term residential nursing care. Fife Council had originally assessed her financial position under the National Assistance (Assessment of Resources) Regulations 1992 and, on later discovery that she had transferred her house to her children for love and affection, treated the property as notional capital under Regulation 25 and decided to stop themselves arranging residential nursing accommodation until capital (actual and notional) was reduced to the statutory capital limit (Regulation 20).

The appellant sought judicial review of the council's decision. The Lord Ordinary dismissed the petition (12 January 2000). The Inner House refused the reclaiming motion (First Division, 20 April 2001; Lord Weir dissenting). The appellant appealed to the House of Lords.

Issues framed by the court included (i) whether section 12(3A) of the Social Work (Scotland) Act 1968 (as inserted by the Community Care (Residential Accommodation) Act 1998) authorised a local authority to have regard to a person's capital (including notional capital) when deciding to provide residential accommodation with nursing under section 13A; (ii) whether section 13A is a free-standing duty or falls to be treated as performed under section 12; and (iii) whether the assessment process under section 12A(1) allows the authority to consider means when deciding whether needs "call for" provision of services.

The majority in the House of Lords analysed the statutory scheme. They concluded that section 13A is a separate, self-contained duty and that the words in section 12(3A) operate only when determining whether to provide assistance for the purposes of section 12. The mandatory phrase "shall disregard" in section 12(3A) requires capital below the statutory limit to be ignored for that purpose and does not imply that capital above the limit should be taken into account at the assessment stage. Section 12A's requirement to decide whether needs "call for" services relates to the person's needs rather than their means; assessment of means and charging follow the needs assessment. The court therefore held that the council were wrong to take actual and notional capital into account when assessing whether to provide residential nursing accommodation under section 13A; notional capital may be considered only at the charging stage under the National Assistance Act 1948 and the assessment regulations.

The Lords allowed the appeal and recalled the interlocutor of the First Division; costs were awarded to the appellant.

Appeal allowed. The House of Lords held that the local authority erred in taking the appellant's actual and notional capital into account when assessing her need for residential accommodation with nursing under section 13A read with section 12A of the Social Work (Scotland) Act 1968. Section 13A is a separate, free-standing duty; section 12(3A) applies to determinations under section 12 only and its requirement to "disregard" capital under the limit does not authorize treating notional capital as a basis for refusing to provide residential nursing accommodation at the needs-assessment stage. Means (including notional capital) are relevant at the subsequent charging stage under the National Assistance Act 1948 and the assessment regulations.

Petition dismissed by Lord Ordinary (Lady Cosgrove) 12 January 2000 (2000 SLT 1226). Reclaiming motion refused by the First Division of the Court of Session (Lord President Rodger and Lord Bonomy; Lord Weir dissenting) 20 April 2001 (2001 SLT 708). Appeal to House of Lords allowed [2002] UKHL 35 (25 July 2002).