The Secretary of State for Health v The Personal Representative of Christopher Beeson [2002] EWCA Civ 1812

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law "

"(1) Subject to subsections (5) and (6) below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority - (a) shall carry out an assessment of his needs for those services; and (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any services."

"(1) The Secretary of State may by order require local authorities to establish a procedure for considering any representations (including any complaints) which are made to them by a qualifying individual, or anyone acting on his behalf, in relation to the discharge of, or any failure to discharge, any of their social services functions in respect of that individual. (3) A local authority shall comply with any directions given by the Secretary of State as to the procedure to be adopted in considering representations made as mentioned in subsection (1) above and as to the taking of such action as may be necessary in consequence of such representations. "

"A resident may be treated as possessing actual capital of which he has deprived himself for the purpose of decreasing the amount that he may be liable to pay for his accommodation [then there follow immaterial exceptions]."

"In assessing a less dependent resident's ability to pay for his accommodation a local authority need not apply Parts II to V of these Regulations (treatment of income, treatment of capital, liable relatives and students) if they consider it reasonable in the circumstances not to do so."

"'[P]anel' means a panel of three persons at least one of whom must be an independent person as defined in paragraph (3)"

"The expression 'independent person' in these Directions means a person who is neither a member nor an officer of that authority, nor, where the local authority have delegated any of its social services functions to any organisation, a person who is a member of or employed by that organisation, nor the spouse of any such person."

" Local authority action 4(1) The local authority shall appoint one of their officers to assist the authority in the co-ordination of all aspects of their consideration of the representations. (2) The local authority shall ensure that all the members or officers involved in the handling of representations under section 7B(1) are familiar with the procedures set out in these Directions. Preliminaries 5(1) Where a local authority receives representations from any complainant they shall attempt to resolve the matter informally. (2) If the matter cannot be resolved to the satisfaction of the complainant, the local authority shall give or send to him an explanation of the procedures set our in these Directions and ask him to submit a written representation if he wishes to proceed. (3) The local authority shall offer assistance and guidance to the complainant on the use of this procedure, or give advice on where he may obtain it. Consideration by local authority 6(1) The local authority shall consider the representations and formulate a response within 28 days of their receipt, or if this is not possible, explain to the complainant within that period why it is not possible and tell him when he can expect a response, which shall in any event be within three calendar months of receipt of the representations. (2) The representations may be withdrawn at any stage by the complainant, in which case the procedure set out in these Directions shall no longer apply to that case. Notification of complainant and reference to panel 7(1) The local authority shall notify in writing the result of their consideration to - (a) the complainant; (b) the person on whose behalf the representations were made, unless the local authority consider that that person is not able to understand it or it would cause unnecessary distress; (c) any other person who the local authority considers has sufficient interest in the case. (2) If the complainant informs the local authority in writing within 28 days of the date on which the notification mentioned in paragraph (1) is sent to him that he is dissatisfied with that result and wishes the matter to be referred to a panel for review, the local authority shall appoint a panel (including any independent person) to consider the matter which the local authority shall refer to it. (3) The panel shall meet within 28 days of the receipt of the complainant's request for review by the local authority to consider the matter together with any oral or written submissions as the complainant or the local authority wish the panel to consider. Recommendations 8(1) Where a panel meets under direction 7, it shall decide on its recommendations and record them in writing within 24 hours of the end of the meeting. (2) The panel shall send written copies of their recommendations to - (a) the local authority; (b) the complainant; (c) if appropriate, the person on whose behalf the representations were made; and (d) any other person who the local authority considers has sufficient interest in the case. (3) The panel shall record the reasons for their recommendation in writing. (4) The local authority shall consider what action they ought to take, and notify in writing the persons specified in paragraph (1) [sic: it must be a misprint for ('2')] (b), (c) and (d) of the local authority's decision and of any action which they have taken or propose to take within 28 days of the panel's recommendation."

"Mr Beeson had owned and occupied his house at 7 Brownlow Street, Weymouth for many years, first with his wife and then, after her death in 1989, on his own. It was his only major asset. Mr Beeson suffered a stroke in March 1997 at the age of 90. He was discharged from hospital in early April and thereafter received intensive home care three times a day, comprising personal care, meal preparation, shopping, cleaning and laundry. For the previous eight years or so he had been in receipt of home care comprising assistance with domestic tasks for three hours a week. On 14 April 1997, about a week after his discharge from hospital, he transferred the house to his son by deed of gift. The explanation later given was 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 to should the need arise. With the benefit of the care he was receiving Mr Beeson was able to continue to live in the house for the next two years. In April 1999, however, he was admitted to hospital in a state of collapse and exhaustion. After a period of recuperation he returned home in May, but he became weaker and was re-admitted to hospital in August after a fall. Thereafter he lost confidence in his ability to look after himself. On 3 September 1999 he was assessed by the council as needing residential care. In a letter dated 9 September 1999 in support of an application for funding the residential care, his son stated: 'Following the stroke [Mr Beeson] was advised that he was really in need of residential care at that point, but because of a strong determination on his part it was agreed that with certain adaptations to his living accommodation and a high level of care provision he could return home. As was said to me only last week by a Senior Social Worker, even two years ago it was "on a wing and a prayer" that he continued to live at home.' On 20 October 1999 the son completed and submitted a formal application on behalf of his father for financial assistance with the cost of the residential placement. In that application he stated in relation to the transfer of the house: 'Transferred to son, as a result of stroke, in April 1997'. A decision letter dated 25 October 1999 from the council's Social Services Directorate noted the transfer of the house by deed of gift in April 1997 and stated: 'Following careful consideration of this matter I am of the opinion that Mr Beeson has deprived himself of an asset with which he could have funded his residential care placement. However, as this asset is in the form of a property, which is not immediately realisable, I would be prepared to fund the placement on an interim basis upon your consent to an equitable charge being raised on the property ' The letter referred to a right of 'appeal' through the complaints procedure [stage 3 in Richards J's nomenclature: paragraph 7(2) ff of the Directions]. Strictly the procedure is not one of appeal but a three-stage internal complaints procedure. Mr Beeson's son invoked stage 1 of the complaints procedure [the reference here is to paragraph 5(1) of the Directions] by letter of 13 January 2000. The matter was considered by a Mrs Yates, whose decision was communicated in a letter dated 17 February 2000: ' Having considered your earlier correspondence, the financial assessment form, deed of gift and this Directorate's earlier involvement with your father's care, I am still of the opinion that your father deprived himself of an asset when he would have been aware that residential or nursing home care may have been an option for the future.' Mr Beeson's son expressed his dissatisfaction with the decision in a letter of 7 March 2000, which was treated as a formal complaint under stage 2 of the procedure [paragraph 6(1) of the Directions]. There followed an investigation and interview by an officer who had not previously been involved in the matter, a Mrs Slade. In a letter dated 12 July 2000 she rejected the complaint: 'After consideration of all the information and documentation made available, my conclusion is to uphold the decision made by the Directorate, i.e. that your father deprived himself of an asset with which he could have funded his care.' On 30 July 2000 Mr Beeson's son requested that the matter be reviewed by a panel. The panel appointed to carry out the review consisted of Mrs Jean Churchill (independent chairperson), Mr David Crowhurst (county councillor) and Mrs Sheila Poupard (county councillor). They held a meeting on 12 September at which Mr Beeson's son presented a prepared statement, a representative of the council's social services directorate 'presented the case for Social Services', and the members asked various questions of those present. Written notes of the meeting were prepared. The statement read out by Mr Beeson's son referred to the fact that the council was claiming that a deliberate deprivation of assets took place in order to avoid paying for care which, in the council's view, was going to be inevitable. He took issue with that view, stating that 'the one certainty in my father's mind at the time of the transfer was that he was returning to live in and ultimately die in his home. The transfer of the property took place several weeks after his return home from hospital and at his request.' He repeated what had been set out in previous material, that the reasons for the transfer were that, since the death of his mother, his father had become increasingly reliant on him in all matters of finance, correspondence, household management and property maintenance. At the time in question, his father was particularly concerned that his marriage of 24 years had recently broken up, and his father's principal motivation in making the transfer was to ensure that he had a home. At the time of transfer there had been no indication from social services that residential care and funding was under consideration or ever likely to be needed. The case for the social services directorate was that Mr Beeson was aged 90 when he had a stroke in March 1997. In the letter dated 9 September 1999, his son had referred to the advice at the time 'that he was really in need of residential care at that point' and to the recent comment of a senior social worker that 'even two years ago it was "on a wing and a prayer" that he continued to live at home.' In the light of those statements it was reasonable to expect that Mr Beeson would need residential care. The application for financial assistance in 1999 had stated that the property had been transferred to the son as a result of a stroke in April 1997. Health records showed that Mr Beeson had had further strokes since then. It was natural for Mr Beeson to want his son to have the property, but he would have inherited it in any case. There was no need for the property to be transferred, other than to avoid paying for residential care. In summary, the contention was that 'the transfer was made so soon after Mr Beeson's strokes that it was reasonable to assume that a deprivation of assets was intended' (para 3.13). Among the questions asked by members of the panel were these, recorded at paras 3.16 and 3.17 of the notes of the meeting: 'Mr Crowhurst asked Mr Beeson whether he had understood in 1997 that if his father needed residential care he could be required to use his capital asset (i.e. his home) to fund this and that the local authority had a legal right to put a charge on the property. Mr Beeson said that neither he or his father knew this - it had never come into their thoughts. Mr Crowhurst said that it was important to understand whether Mr Beeson had understood this, although he needed to make it clear that ignorance of the law is not an excuse. Mr Crowhurst asked what Mr Beeson senior would have assumed about how the fees would be paid if he had to go into residential care. Mr Beeson answered that his father was on income support and would have assumed that the fees would be covered. However it is unlikely that he would have thought that far, as Mr Beeson senior did not expect to enter residential care - he was "preparing to die" at home.' After an exchange about the relevant legal provisions, the Finance Manager, Mrs Morton, 'quoted a legal ruling which said that local authorities could deem deprivation to have taken place if it could be shown that the avoidance of residential care charges was a significant motive in transferring a property' (para 3.25). After the meeting the panel made findings as follows: 'The majority decision of the panel was: (1) that there was deprivation of assets for the purpose of avoiding payment for accommodation; (2) as a consequence, the appeal against the legal charge is not upheld, notwithstanding the time that had elapsed since the property was transferred.' There followed the actual stage 3 decision, taken by the Director of Social Services. His letter dated 9 October stated: 'I have read the case file and correspondence and note that this matter has been carefully considered through all three stages of the Directorate's complaints procedure. As you will already be aware, the complaints panel upheld the original decision on deprivation of assets. I concur with that finding.' The letter went on to clarify the position concerning the legal charge, stating that the council did not have authority to declare a legal charge on the property but was prepared to defer payment of the existing debt and to continue funding Mr Beeson's care if the son agreed to a legal charge on the property. The Director, Mr Joannides, swore an affidavit relatively late in the course of the proceedings in which he set out a detailed account of the documents that he perused in making his decision, with comments on various of those documents and on his process of reasoning. He concludes: i) 'I decided that at the time of the gift, it was reasonable for me to assume that the transfer had been arranged, largely, if not solely, as a means of avoiding any charges for residential care that may have been needed in the foreseeable future. I looked at all the circumstances of the deprivation of his home and concluded that it was reasonable for me to decide that avoiding residential charges was a significant motive in Mr C Beeson's mind when he did that '"

"40 [T]he extent to which the first instance process may be relied on to produce fair and reasonable decisions is plainly an important element. But it is not to be viewed in isolation. The matter can only be judged by an examination of the statutory scheme as a whole; that is the necessary setting for any intelligent view as to what is fair and reasonable. Where the scheme's subject-matter generally or systematically involves the resolution of primary fact, the court will incline to look for procedures akin to our conventional mechanisms for finding facts: rights of cross-examination, access to documents, a strictly independent decision-maker. To the extent that procedures of that kind are not given by the first instance process, the court will look to see how far they are given by the appeal or review; and the judicial review jurisdiction (or its equivalent in the shape of a statutory appeal on law) may not suffice. Where however the subject-matter of the scheme generally or systematically requires the application of judgment or the exercise of discretion, especially if it involves the weighing of policy issues and regard being had to the interests of others who are not before the decision-maker, then for the purposes of Article 6 the court will incline to be satisfied with a form of inquisition at first instance in which the decision-maker is more of an expert than a judge (I use the terms loosely), and the second instance appeal is in the nature of a judicial review. It is inevitable that across the legislative board there will lie instances between these paradigms, sharing in different degrees the characteristics of each. In judging a particular scheme the court, without compromise of its duty to vindicate the Convention rights, will pay a degree of respect on democratic grounds to Parliament as the scheme's author."

"60 In my view it is necessary, in the application of the Convention, to focus carefully on the facts and issues relevant to the particular case. In the present case the assessment of need had been made and was not in dispute. A duty to provide Mr Beeson with accommodation had arisen under the statute and a decision had been taken as to the accommodation to be provided. The provisions relating to the making of payments or the recovery of refunds had been engaged. The regulations concerning the assessment of his ability to pay had not been disapplied under regulation 5. Although it was for Mr Beeson to satisfy the council under s.22(3) or s.26(3) that he was unable to pay or to make a refund at the full rate, a crucial component in that decision was the determination under regulation 25 as to whether he had deprived himself of his house for the purpose of decreasing the amount that he might be liable to pay. If his case with regard to purpose was accepted, then he was entitled not to have the value of the house taken into account (and in reality, as the other circumstances of the case make clear, he could not reasonably be required to pay at the full rate). If his case was rejected, he was liable to have the value of the house taken into account, albeit that the council still had a discretion not to take it into account. This was a means-testing exercise in which a wrong decision had potentially serious economic consequences for Mr Beeson: it would expose him to a liability to make a payment which he could not afford to make out of his retained assets. 61. In my judgment those considerations bring the particular situation within the scope of the reasoning that led the Court to hold in Salesi and Schuler-Zgraggen that Article 6(1) applied "

"The assessment of need and decisions as to whether they call for the provision of any of the community services come first. The assessment of means, and the requirement to pay what a person can afford, comes afterwards."

"37 Assuming only that in any particular milieu disputes of fact may arise, it is necessary also to confront the question whether the 'first instance' decision-maker – internal review, Review Board, whatever it may be – is established and constituted in such a way that it may be expected to arrive at fair and reasonable decisions. That may be a live and real question even though, for want of sufficient independence, or publicity, or any other factor, such a first instance decision-maker does not itself satisfy Article 6. Its failure to meet the Article 6 standards by no means closes off the relevance of its processes for the overall judgment that has to be made which takes account also of the second stage review or appeal in an independent court. 38. This aspect of cases like the present is I think reflected in Waller LJ's reasoning in McLellan at paragraphs 99 and 100: "99 It is in my view legitimate to take into account in this context that the review panel is a body chosen by Parliament. If, of course, it was simply impossible for such a tribunal to reach a fair decision, that would lead inevitably to the conclusion that the scheme could not work without infringement of Article 6. Would it be impossible for there to be a fair decision from any person who would be appointed to review matters under the introductory tenancy scheme? Would a court inevitably come to the conclusion that any officer, however senior, could not constitute a fair tribunal for hearing the matter? Is the position such that judicial review could not provide the check as to whether a decision had been reached fairly and lawfully? 100 One has to remember that the council are in reality making decisions which are not simply decisions as to whether it has a right to terminate. The council is not anxious to terminate unless other considerations prevail. The council is having to have regard to competing interests of other tenants and the competing interest of others who need the housing that they can supply. In my view there is no reason to think that such a decision cannot be taken fairly at a senior level of the council reviewing the decisions already reached by less senior people. Furthermore it seems to me that judicial review will be able to check the fairness and legality of decisions taken."

" the scheme is one which may generally and systematically be characterised by the exercise of value judgments as to need and whether accommodation was otherwise available. This places, to my mind, this case at the edge of the range of cases concerning civil rights and as I have already remarked is the type of judgment which is more likely to lead to judicial review satisfying compliance with Article 6."