Council has no power to rule on care adult's asset transfer

A local authority providing residential care to an adult has no power to decide whether a person to whom the adult has transferred an asset at an undervalue is liable to contribute to the cost of the residential care, but must take the matter to court, the Sheriff Appeal Court has ruled.

The court gave the decision in refusing an appeal by Argyll & Bute Council, which had sought to recover £42,750 from Josephine Gordon as the sum assessed by the council in respect of the provision of care accommodation to a Mrs Duncan Jones. Mrs Duncan Jones had been cared for from 2005 until her death in 2013. She had met the cost from her own resources until 2010; the council sought to recover the cost for the last three years of her life. In 2005 she had transferred title to her house to the defender and her late husband out of love, favour and affection. The defender contended that the transfer was not made knowingly and with the intention of avoiding accommodation charges.

The council purported to make its determination under s 21 of the Health and Social Services and Social Security Adjudications Act 1983. The sheriff held that s 21 did not confer a jurisdiction to make such a determination; it simply set out three conditions that might give rise to liability to make payment, and if the transferee denied liability the council had to seek redress in court in the usual way. He allowed proof on disputed matters.

Before the Appeal Court the council argued that the intention of the Act was to reduce the administrative burden placed on local authorities for the assessment and collection of charges, and adopting a purposive interpretation, the exercise of determining liability for care charges incurred by the service user, and the liability of a third party for capital knowingly transferred by the service user with the intention of avoiding accommodation charges, was a single scheme. The defender's remedy was to seek judicial review.

Delivering the opinion of the court, Sheriff Principal Duncan Murray, who sat with Sheriff Principal Ian Abercrombie and Sheriff Nikola Stewart, said the sheriff's reasoning had been correct. The matter could be determined simply on the terms of s 21, which differed from s 22 of the National Assistance Act 1948 which created the charging regime in relation to the service user. “We find nothing untoward in Parliament having determined that the separate question of whether another party may be liable to pay for charges is left to the courts to resolve”, he commented.

There was no ambiguity such as to give rise to consideration of parliamentary material; in any event, such material as there was supported the defender's position.

Sheriff Principal Murray added: “We were invited by the appellant to give some direction as to the legal issues in order for liability to be determined; we do not consider it is appropriate for to do so. If necessary this court can do so when it is faced with established facts.”

The case was remitted to the sheriff to proceed.

Click here to view the opinion of the court.