Robertson (AP) v. Fife Council

A local authority must decide whether an assessed need calls for community care services without regard to the person’s ability to pay. The assessment of means, including notional capital deliberately disposed of, occurs afterwards when charges are determined.

Residential accommodation with nursing under section 13A of the Social Work (Scotland) Act 1968 is a free-standing service. Section 12(3A), which requires capital below the prescribed limit to be disregarded when assistance under section 12 is considered, neither applies to section 13A nor authorises capital above the limit to be considered at the service-provision stage.

The appellant suffered from senile dementia and required permanent residential nursing care. Fife Council assessed her as needing that care but discovered that she had transferred her house to her sons. Treating its value as notional capital under the National Assistance (Assessment of Resources) Regulations 1992, the council decided to cease providing the care until her capital fell below the prescribed limit.

The Lord Ordinary dismissed her petition for judicial review: 2000 SLT 1226. The First Division, by a majority, refused her reclaiming motion: 2001 SLT 708. The issue before the House was whether sections 12, 12A and 13A of the Social Work (Scotland) Act 1968 permitted the council to take actual or notional capital into account when deciding whether to arrange assessed residential nursing care.

1. The appeal was allowed unanimously. Lord Hope of Craighead delivered the leading speech. Lord Slynn of Hadley, Lord Mackay of Clashfern, Lord Nicholls of Birkenhead and Lord Hobhouse of Woodborough agreed with his reasons.

2. Per Lord Hope, section 13A of the Social Work (Scotland) Act 1968 creates a separate and distinct duty to arrange suitable residential accommodation with nursing for persons appearing to need it for a specified reason. It is not merely a particular instance of the general social-welfare duty under section 12. Section 13A defines its own eligible class, requires arrangements with an external provider and is expressly without prejudice to section 12.

3. Section 12(3A) applies only when an authority determines whether to provide assistance by way of residential accommodation for the purposes of section 12. Its direction to disregard capital below the prescribed limit does not imply that capital above that limit may be considered when deciding whether to provide assistance. The subsection addressed the taking of capital into account at the wrong stage and for the wrong purpose.

4. Section 12A separates the process into an assessment of need and a decision whether that need calls for community care services. Per Lord Hope, the expression “call for” concerns the nature and extent of the person’s need for an available service. It does not concern ability to pay. The statutory context, including the requirement to consult a medical practitioner before deciding that needs call for nursing care, supports that construction.

5. The governing principle is that eligibility for community care depends on need. The authority must first assess need and decide whether services should be provided. Means are assessed afterwards, when the person’s contribution is calculated. Actual or notional capital may therefore affect charges, but it cannot justify refusing an assessed service.

6. Fife Council had acted unlawfully by considering the appellant’s notional capital at the service-provision stage. The interlocutor of the First Division was recalled. The necessary consequential orders were left to the Court of Session, and the council was ordered to pay the appellant’s costs in the House and in the Court of Session.

1. House of Lords: The appeal was allowed unanimously: [2002] UKHL 35. The interlocutor of the First Division was recalled.

2. First Division of the Court of Session: By a majority, the court refused the appellant’s reclaiming motion; Lord Weir dissented: 2001 SLT 708.

3. Outer House of the Court of Session: The Lord Ordinary dismissed the petition for judicial review: 2000 SLT 1226.