ZYN, R (On the Application Of) v Walsall Metropolitan Borough Council

Statutory language may require an updating construction where Parliament intended it to accommodate changes in technology, society or institutional arrangements. Subsequent legislation and the failure to amend an ambiguous provision may also support an inference about Parliament’s understanding, although later events cannot themselves alter clear statutory meaning.

The reference to the Court of Protection in paragraph 44 of Schedule 10 to the Income Support (General) Regulations 1987 includes the current court established by the Mental Capacity Act 2005. Capital from a personal injury settlement managed by a deputy appointed by that court is administered on behalf of the claimant by the court. The whole fund remains disposable only by order or direction of the court until actually spent. A charging policy taking that capital into account was unlawful.

The claimant was severely disabled and received community care services from the defendant local authority. Her capital, approximately £550,000, derived from a clinical negligence settlement and was managed by a deputy appointed by the Court of Protection.

The Council’s charging policy treated persons with capital exceeding £23,250 as liable for the full cost of non-residential care. The claimant argued that her settlement funds had to be disregarded under paragraph 44 of Schedule 10 to the Income Support (General) Regulations 1987, as applied through the relevant charging guidance and regulations.

The issues were whether paragraph 44 applied to the new Court of Protection, whether funds managed by its deputy were administered by the court, and whether the whole fund could only be disposed of by order or direction of the court.

1. Interpretation of “Court of Protection”. The expression in paragraph 44 was capable of historical and updating interpretations. An updating construction was appropriate because Parliament had enacted the Mental Capacity Act 2005 before the current wording of paragraph 44 was introduced, and the new court exercised substantially similar functions. Parliament could not reasonably be taken to have intended the provision to become redundant when the old court ceased to exist.
2. Although subsequent legislation cannot itself change the meaning of an earlier enactment, it may be considered where the earlier language is ambiguous. The fact that paragraph 44 was left unchanged when the new court came into force supported the inference that Parliament understood the provision to continue applying to the current Court of Protection.
3. Administration by a deputy. A deputy appointed under section 16 of the Mental Capacity Act 2005 exercises powers delegated by the Court of Protection. The deputy’s status as the claimant’s agent is not inconsistent with the deputy also carrying out a function delegated by the court. Capital managed by the deputy therefore fell within paragraph 44(1)(a).
4. Disposal by court order. The deputy’s authority to withdraw up to £50,000 annually without obtaining prior approval did not remove the fund from paragraph 44(1)(b). Treating only the balance not immediately withdrawable as disregarded would produce arbitrary and irrational results depending on the timing and structure of the deputy’s authority. Until money was actually spent, it remained part of a fund which could only be disposed of by order or direction of the court.
5. The whole of the claimant’s settlement capital therefore fell within paragraph 44(1)(b). The Council’s charging policy was unlawful insofar as it took any of that capital into account.

Not an appeal. The judgment determined a claim for judicial review in the Administrative Court.