On Thursday 24 August 2010, RBS undertook to the court not to remove his father from X Manor without the prior agreement in writing of the county council. The Honourable Mr Justice Singer made an interim declaration that it was in RGS's best interests to live at X Manor and for contact with his son to be supervised and regulated by the council (and, if necessary, temporarily suspended). The matter was transferred to a district judge of the Court of Protection, for a one hour directions and review hearing on the first available date after 11 October 2010. In the event, the order was not sealed until that date.
On 9 November 2010, I received a consent order declaring it to be in RGS's best interests to continue to reside at X Manor, and for contact with his son to be supervised and regulated by the council (and, if necessary, temporarily suspended). RBS, who was legally represented, was one of the parties who consented to that order.
On the same date, having also been informed by RBS's then solicitors that he had withdrawn his objection to the council being appointed as his father's deputy for property and affairs, I appointed the county council to act in that capacity.
Because of the history, I made a further order requiring RBS to transfer to the deputy all money belonging to his father over which he had control, and all records in his possession concerning his father's property and finances. He was forbidden from making any withdrawals or payments from his father's assets or accounts without the deputy's permission, and from dealing with or diminishing the value of property or assets belonging to his father. Having regard to RBS's health and circumstances, he was permitted to reside in his father's cottage for the time being, and the deputy was required to keep his needs under review, in particular the need to provide for his maintenance or needs from his father's estate.
On 29 March 2011, following an application by the county council, I ordered RBS to comply with the directions of 9 November 2010. It appeared that he still possessed money belonging to his father, which 'my Father asked me to keep for him, to use, on his return home …'
On 18 May 2011, RBS attended court. He admitted unauthorised dealings with his father's money and shares. Given his fragile health, and the fact that he was very anxious about the possible consequences of his actions, the court took no action in respect of his breaches of the previous order, but reserved the right to do so if similar problems arose in future.
For a period after that hearing, RBS tried his best to resolve the outstanding litigation issues but progress seemed to halt towards the end of 2011. Consequently, in the spring of 2012, the deputy applied to the court for permission to sell his father's paintings in order to meet some of his outstanding — and mounting — liabilities.
On 21 May 2012, RBS's solicitors offered £33,175.92 in respect of the authorised dealings with his father's property.
The litigation took a strikingly different direction shortly after this offer was made, possibly because the deputy did not agree the offer.
RBS decided to publicise the deputy's application. On 1 June 2012, the Independent made its application, followed by the Press Association, Guardian and Telegraph groups.
At an attended hearing on Thursday 14 June 2012, when the Joint Applicants were all either present or represented, the parties agreed that RBS's litigation capacity was in issue. He agreed to being examined by one of the court's Special Visitors and directions were given to enable that to take place.
The trigger was a general concern that he did not understand the possible implications of having his own conduct publicised in national newspapers.
The order made that day asked the Special Visitor to file a report by 25 August 2012, which addressed the following issues:
Subsequently, RBS withdrew his agreement to seeing the Special Visitor, who was unable to report to the court. RBS gave brief reasons in his email of 23 July 2012:
'Since the report on BBC1 about history of English Law & HABEAS CORPUS, I have carefully considered my position, and clearly state I do not agree to a special visitor arranging to see me.'
Since then, he has published a great deal of information about the proceedings on Facebook and by way of local newspaper articles.
Having regard to his refusal to see the Special Visitor, the history of the case, recent events, his breaches of orders, his misunderstanding of the last order and the content of his emails, the court considered that his litigation capacity remained an issue requiring determination.
Because he had not co-operated with an assessment of his litigation capacity, the court proposed to hold a fact-finding hearing to determine whether he lacked litigation capacity. He was notified that he could give oral evidence at the hearing and call his care co-ordinator to give oral evidence on his behalf. If he required or wished to call any other witnesses, he should discuss this with his solicitor. In the event, he called three witnesses.
That therefore was the purpose of this particular hearing.
§4 — LITIGATION CAPACITY
The following summary draws on relevant —
• Statute law (Mental Capacity Act 2005);
• Case law (including Masterman-Lister v Brutton & Co and Jewell & anor [2002] EWCA Civ 1889 , [2003] 1 WLR 1511 ; Re MM [2007] EWHC 2003 (Fam) , [2009] 1 FLR 443 ; Sheffield City Council v E & Anor [2004] EWHC 2808 (Fam) (02 December 2004) Munby J);
• Textbooks, papers and authoritative legal updates (Court of Protection Practice 2012, Ashton et al, Jordans; 39 Essex Street's monthly Court of Protection newsletter, Eds. A Ruck-Keene, V Butler-Cole, J Norris, N Allen); Unfitness to Plead , Consultation Paper No 197, The Law Commission, 2010).
In order to make the decision as readable as possible, I have not given the statutory authority for propositions which are not in any doubt; for example, that in law there is a presumption of capacity. This document is a district judge level decision for the parties, not a legal precedent.
To summarise:
to understand the information relevant to the decision,
to retain that information,
to use or weigh that information as part of the process of making the decision, or
to communicate their decision (whether by talking, using sign language or any other means).
(a) A person 'should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language.' [8]
(b) A person should not be regarded as lacking capacity to litigate merely because their litigation decision is one that 'would not be made by a person of ordinary prudence.' [9]
(c) The 'mental abilities required include the ability to recognise a problem, obtain and receive, understand and retain relevant information, including advice; the ability to weigh the information (including that derived from advice) in the balance in reaching a decision, and the ability to communicate that decision.' [10]
(a) The court should investigate the question of capacity whenever there is reason to suppose it may be absent;
(b) Doubts should be resolved and proceedings stayed until this has been done;
(c) The rules assume that it is known whether a party lacks capacity, so any doubt must be addressed as an issue in the proceedings and a finding of fact made;
(d) 'Where significant doubt arises, the court will expect this party to produce evidence to dispel that doubt. Proceedings may be stayed until the party submits to a medical examination … The court has no power to force the party to submit to an examination.'
§5 — PARTIES' POSITIONS CONCERNING RBS'S LITIGATION CAPACITY
The county council and Mr A took neutral positions concerning RBS's litigation capacity. They saw their function as being to assist the court to determine the issue.
The council did observe in its position statement that RBS 'either does not understand the nature of the present proceedings or chooses not to accept the authority of the court. That may be because he is too unwell to do so or that he has the capacity to do so and chooses not to.'
RBS apart, no representations were received from the other parties.
There is a presumption of capacity and lack of capacity must be established on evidence. In this sense, RBS has nothing to prove.
It seems proper therefore to set out first the evidence which may indicate that he lacks litigation capacity — what he naturally described as 'the case against him' — before setting out his response.
As will be seen, he had in his favour the presumption of capacity, reinforced by his evidence and that of the witnesses he called, and by his position statement and oral submissions.
§6 — EVIDENCE INDICATING A POSSIBLE LACK OF LITIGATION CAPACITY
In simple terms, two things must be proved:
I do recognise the constitutional importance of a citizen having access to the courts and, wherever possible, being able to argue and present their case as they wish. The appointment of a litigation friend in circumstances such as these can only ever be a regrettable necessity.
Evidence of an impairment or disturbance of the mind or brain
Because RBS refused to undergo a medical examination, the main evidence of an impairment or disturbance of the mind or brain was as follows:
(a) His first admission to a psychiatric unit was at around the age of 16. He is now 58 years old. He has had approximately six in-patient admissions, two under section, the longest for 28 days.
(b) For many years, he was diagnosed as suffering from paranoid schizophrenia. Recently, his diagnosis was changed to bipolar disorder.
(c) Consistent with this diagnosis, his current medication consists of sodium valproate, a mood stabiliser, and sertraline, an anti-depressant, both in low dosages.
(d) He has had periods of elevated and depressed mood, and some of his hospital admissions have occurred when his mood has been elevated. He told the court that he can do risky things 'when high'.
(e) He accepts that his illness has a disabling effect in some areas of his life in that he receives the lower rate of the mobility component, and the middle (day) rate of the care component, of Disability Living Allowance. In both cases, this is because of a need for supervision on account of his mental health problems. The statutory criteria for such an award are as follows:
(f) He accepts that his illness has an incapacitating effect, in that he is unable to work for reasons of mental ill-health, and so receives Incapacity Benefit. (In one email, he stated that he has been on Incapacity Benefit since 1989.)
(g) He accepts that his letter to the court of 17 January 2011 gives an accurate picture of how he was at that time. In this letter, he stated:
(h) According to his COP9 application notice of 12 May 2011, 'My own health diagnosis is Bi Poler Effective Disorder [sic]. I do not wish to end up back in hospital, or be in contempt of court.'
(i) He accepts the accuracy of his solicitor's letter to the deputy of 4 August 2011:
(j) He accepts that his solicitor's letter of 6 October 2011 fairly stated how he was, and how things were for him:
Although RBS told me that he is more settled now that his divorce proceedings have ended and he can concentrate on his father's situation, he did not contest that he has 'an impairment of, or a disturbance in the functioning of, the mind or brain,' namely a bipolar disorder.
Given his long history of ill-health, the fact that he continues to receive treatment and his recent conduct, I am satisfied on the balance of probabilities that he has 'an impairment of, or a disturbance in the functioning of, the mind or brain.'
Evidence that he is or may be unable to make relevant decisions
The next issue involves examining what evidence there is which indicates that he is unable to understand the information relevant to the litigation decisions, or is unable to retain that information, or is unable to use or weigh that information as part of the process of making the litigation decision(s), or is unable to communicate his decision(s).
I decided not to hear oral evidence from the solicitor he recently disinstructed in these proceedings, who has extensive knowledge of the proceedings and attended as a friend of the court. This was because I did not wish to risk damaging their relationship which on the whole has been good, an important line of communication and of benefit to all.
It is important to realise that RBS has not been filing and serving evidence in the conventional manner. However, his emails to court staff and others, and the newspaper and internet accounts written or given by him, contain a significant amount of information about his approach to the litigation issues since around the end of May:
Evidence to suggest that two are linked and his actions are more than merely unwise
It is essentially common ground that RBS has a relevant medical condition.
His recent conduct of the litigation, and the litigation decisions he has made, have certainly been problematic.
Are the two connected?
Is he unable to understand, retain and weigh information relevant to his litigation decisions because of mental ill-health? Or have his recent litigation decisions been made autonomously, with capacity, not because his mind or brain was disturbed at the time?
Some of the evidence summarised above suggests that recent litigation decisions were the product of a disturbed or impaired mind or brain.
That therefore was the case that RBS had to answer.
§7 — RBS'S POSITION AND EVIDENCE
In his position statement for the hearing, RBS stated that he was 'tremendously shocked' that SC (his social worker and care co-ordinator) had withdrawn his original statement and would not be attending court 'as he originally promised':
He also made the following points:
He stated that his father was illegally detained by the county council for a period in the past, between October 2009 until 13 August 2010, rather than (by inference) now, although his recent habeas corpus applications suggest that this is not his position invariably.
Witnesses
I received witness statements from his friends Mrs WW (dated 28 October 2012); Mr PW, her husband (dated 28 October 2012); Ms FC; Ms JP (dated 28 October 2012); and Mr AH. The first three of them attended to give evidence and to be questioned on their statements.
Mrs WW told me that:
(a) In her opinion RBS has litigation capacity, which she understood to be 'full senses to come to court and put his father's case for coming home.' He 'is compos mentis at putting his own case,' able to understand and weigh the issues and aware of the risks involved in breaking court orders.'
(b) He 'put his father before himself and was worthy of being listened to.'
(c) She had not seen the independent visitor's report, any professional reports or the consent order which RBS approved stating that it was in his father's best interests to reside at X Manor.
(d) She did not think that all of the emails read in court helped to resolve the outstanding issues.
(e) She was not aware that he had 'disinstructed' his solicitor.
(f) She was aware that he had admitted taking some of his father's money and shares, which he had used to refurbish his father's house.
(g) She was not aware that the local authority had been appointed to manage his father's property and affairs by consent.
(h) He was a loving son, doing all he can: 'I don't condemn him.'
(i) His father should be asked whether he wishes to be in his own home, not whether he is happy at X Manor.
Mr PW, the husband of Mrs WW, adopted his wife's statement. The 'neighbourhood' would be delighted to have RBS's father back. He did not know of the consent orders, habeas corpus applications, etc, and therefore his evidence was subject to the same caveats as his wife's.
Ms FC told me that:
(a) She knew of the consent orders the week before the hearing, but not from RBS.
(b) As concerns the habeas corpus applications, RBS was just trying everything that came into his mind.
(c) She was aware that he was not following his solicitor's advice.
(d) His father had expressed a wish to come home; he could walk 'perfectly well and was a perfectly lovely man.' He would require professional carers but would benefit from his son's company and support, and from being able to see the boats: 'His life is cigarettes and .'
(e) Staff at X Manor controlled him by controlling his cigarette supply, using cigarettes as a reward. He was not empowered.
In her written statement, Ms JP stated that:
(a) She is a first cousin once removed of RBS, his mother being her cousin.
(b) RBS 'is perfectly capable of looking after his father at the family home, providing a safe and caring environment.'
(c) To the best of her knowledge, he had put in place a 'twenty-four hour complete care package.'
(d) In her opinion, he 'has full capacity to litigate in person and put forward his case in a court of law.'
In his written statement, Mr Hodgson, the builder involved in renovating the cottage, stated that:
(a) RBS 'has full capacity to Litigate in a Court of Law to contest the case brought against him by [the] COUNTY COUNCIL, to enable the return of his Father to his own Home … with 24/7 care.'
(b) RGS was 'bored out of his mind' at X Manor, 'together with inmates who much worse than himself, institutionalised by the carers and frightend to have any empowerment to complain as they have control over his cigarettes.'
I was impressed by the three witnesses who attended court. They were kind-hearted, compassionate, truthful, intelligent and loyal to their friend. However:
(a) Much of their evidence concerned the question of whether it is in his father's best interests to return home, which they seemed to believe was a purpose of the hearing. Presumably, RBS told them this. In fact, he had not made a personal welfare application or asked for a review of the consent order.
(b) Because capacity is issue-specific, it is RBS's capacity to conduct these particular proceedings that is in issue. However, his witnesses were unaware of much of the relevant litigation history. For example, they had not seen the independent visitor's report or any other professional reports. Nor had they seen the consent orders approved by RBS, declaring it to be in his father's best interests to reside at X Manor and appointing the county council as his deputy. Nor had they seen many of his emails. Mr and Mrs W were not aware that he had 'disinstructed' his solicitor. One friend thought that a 'twenty-four hour complete care package' was in place. Necessarily, these caveats affect the weight to be given to their opinions concerning his litigation capacity.
For reasons which are explained below, the court will now review the personal welfare of RGS, the feasibility of him returning home and whether this is in his best interests.
The evidence of RBS's witnesses demonstrates that his father has a loyal, intelligent and kind-hearted group of friends who provide him with valuable social support. That is a very relevant factor when it comes to reviewing the feasibility of a return home. However, neither RBS nor their friends are able to provide personal care, so that (and the affordability of paid care) will also be a critical issue.
The evidence of RBS's witnesses as to his litigation capacity indicates that they believe he has capacity to make decisions for himself (and indeed his father) on a general day-to-day basis, and that he is able to articulate his beliefs and argue his point of view.
However, capacity is issue-specific and the weight of their evidence is affected by the caveats referred to above. In my opinion, their evidence had less impact in relation to the litigation capacity issue.
§8 — FINDINGS CONCERNING RBS'S LITIGATION CAPACITY
Having regard to the evidence and the law, on the balance of probabilities I find as follows:
(a) He no longer understood, or retained, the very relevant information that he consented to a declaration stating that it was in his father's best interests to reside at X Manor.
(b) Consequently, when it came to deciding how to progress the Court of Protection litigation, he was unaware that his habeas corpus applications were effectively an attack on his own order. Since June, he has made three habeas corpus applications, and an application to the ECHR, but no personal welfare application to this court.
(c) Likewise, he was unaware that the court had not 'imprisoned' his father by rejecting an application for his father to live at home; rather, he had not made such an application since consenting to him residing away from home.
(d) Similarly, he no longer understood, or retained, the very relevant information that he had consented to an order appointing X County Council as his father's deputy for property and affairs.
(e) There was no 'secret hearing' at which these decisions and orders were made; he consented to them being made.
(f) His misunderstanding of important aspects of the litigation includes a failure to understand or retain the fact that I have not gagged the media — not yet anyway. On 1 June this year, the media applied for permission to attend future court hearings and I readily agreed. The newspapers have not yet made their substantive application to be allowed to report the proceedings. However, I have already indicated to RBS on more than one occasion that as a public servant I have no objection at all to him criticising me or the court publicly. However, how that is done must be decided after all the parties have had an opportunity to make their representations. It is unjust, and an abuse of other people's legal rights, for him to try to determine that issue unilaterally and pre-emptively by publishing information on Facebook.
(g) His tendency to make inappropriate applications, because he cannot understand or retain the relevant litigation history, has led to the other parties being caused significant anxiety, abuse, work and expense. It has also prevented any continuing dialogue on the litigation issues.
(h) He was reminded by his legal advisors of the need to be sensitive, to make sure that he sent emails 'only to those needed,' and of the dangers of posting comments about 'local council officers' on his Facebook page. He did not speak with his solicitors before making the habeas corpus applications and he has now 'disinstructed' them. He no longer seeks 'the assistance of necessary explanations from legal advisers and experts,' with which assistance previously he was able to conduct the litigation.
(i) Since the end of May, he seems to have bombarded the court, the deputy and his solicitors with emails, requests, demands and snippets of information. This chaotic approach has made it virtually impossible to progress the litigation and resolve the issues. Some of the emails appear to have had little or no relevance to the litigation issues, such as those concerning the acquisition of an Indian takeaway restaurant. This also suggests that his litigation capacity is impaired.
(j) He has sent unwelcome and inappropriate emails to a member of the court's Listing & Appeals office which have interfered with the management and resolution of the litigation.
(k) There is a persecutory flavour to some of his thinking which results in him misinterpreting the causes of other people's decisions and actions. He accused the county council of 'perverting the course of justice' by forcing one of his witnesses to withdraw. As concerns his first habeas corpus application, he said that the Official Solicitor 'mysteriously refused to pick up the case. It is obvious to me that this was because [the council] just didn't want the hearing to go ahead.' He explained his lack of success in securing his father's return home on the basis that all complaints departments in the UK take 'the official Political stand point.' He wrote that his neighbour had kept him 'under 24/7 observation' and it was because of the greed and interference of a neighbour that he and his family were 'in this predicament.'
(l) Some litigation decisions appear to have been influenced by extraneous factors. His decision to withdraw his consent to having his litigation capacity assessed was taken following a BBC report on English law, habeas corpus and the Star Chamber (as, presumably, were his habeas corpus applications).
(m) At times he seems to have misunderstood or misreported court orders, claiming that the court has allowed the proceedings to be reported and that this case is 'conjoined' with other litigation involving him. Although the purpose of this hearing was to consider his litigation capacity, much of his position statement and evidence was concerned with 'obtaining his father's release from over two years imprisonment.'
(n) His positions and evidence have often been highly inconsistent. Intellectually, he can understand information relevant to the litigation when it is explained to him in broad terms, at the time it is explained. However, he veers from one position to another within lines of the same email or within a minute or two in oral evidence. One moment he acknowledges a fact or legal requirement, the next moment he denies it. Not surprisingly, therefore, recently he seems to have found it impossible to adhere consistently to any rules, directions or advice. He tends to say that I have quoted his emails out of context; but when I ask him to correct me by telling me the proper context within which to understand the passages, he is unable to do so.
(o) Making litigation decisions in Court of Protection proceedings often requires being able to understand and weigh the private nature of information seen by the party, or discussed in their presence, and the fact that much of it was provided and received subject to a duty of confidentiality. There is some evidence that RBS is unable to understand or give proper weight to these considerations before making litigation decisions. Having publicised matters in China, in an email addressed 'TO JUDGE' dated 9 June 2012, he wrote: I trust you will now accept, accountability to the international community.' His approach to this hearing was to seek as many witnesses as possible to 'totally embarrass both [the council] & the court …' His A4 poster publicising the hearing and inviting local people to attend, was handed to local shops, including a kebab takeaway and fish and chip shop. Seemingly, he could not understand that this level of local knowledge of his father's circumstances might embarrass his father if he returns home, either permanently or for visits. Nor could he see that it might affect his position and standing in his local community. He seemed unable to understand why confidentiality is important, the harm one may do to others if confidences or privacy are breached, the possible penalties and the appropriate way to contest the issue if publicity is desired. Simply taking the matter into one's own hands, without allowing others an opportunity to present any competing considerations, is potentially damaging to his father, because the decisions are taken without proper, calm, deliberation.
(p) His highly adversarial approach to the litigation suggests that he is unable to understand that the deputy has been caring and generous towards him. He has been permitted to reside rent-free at his father's cottage, there have been no applications to commit him, despite fairly vicious public attacks on council staff, and his unauthorised dealings with his father's assets have been discounted. This is not a case of a bullying local authority abusing its powers over a vulnerable adult and their family; quite the opposite.
(q) When the subject came up at the hearing, it clearly had not occurred to him that if he was persistently breaking my orders and directions, this was likely to have some impact on the extent to which I feel that I can trust him to comply with undertakings or orders that he may ask the court to make. For example, that he will return his father to the care home if he is permitted to take him home or on visits; that his visits do not need to be supervised; that he will adhere to any financial compromises; that he will co-operate with the deputy in relation to financial assessments of home care plans; and that he will co-operate with social services and paid carers if his father can return home. He seemed impervious to the fact that his conduct might be damaging the case he now wants to put to the court.
(r) He lacks capacity to take a decision to compromise the various claims and an understanding of the effects of agreeing or refusing a particular compromise. His negotiating demands have been unrealistic to an extent that in my opinion indicates impaired or disturbed thinking. The council is subject to national laws concerning the financial contributions which people who receive care are required to make. Rather than repay some of the money used by him without proper authority, he now demands that the council pays him and his father compensation, and sacks staff. His father must be 'released immediately from imprisonment' despite the consent order and the lack of any application to review it. He describes the care home as X Prison and his father as a prisoner-of-war. For himself, he demands 'a trial by jury as is my right.'
(s) Any compromise of these proceedings will not be a self-contained transaction but inseparably part and parcel of the proceedings as a whole, involving making intertwined decisions most of which could only be split in a narrow, artificial, way.
§9 — MOVING FORWARD: ISSUES FOR THE COURT
The following matters must be addressed:
Litigation costs and other costs of the parties
The general rule in property and affairs cases is that the parties' legal fees are chargeable to 'P's estate,' i.e. to RGS.
In personal welfare proceedings, the general rule is that each party pays their own costs.
Where proceedings involve property and affairs and personal welfare issues, the costs are to be apportioned between the respective issues.
I can depart from the general rule in the circumstances set out in rule 159. Broadly speaking, I can order one of the parties to pay all or part of the costs of the other parties if I believe that their conduct has been sufficiently unreasonable to justify doing so.
RGS's funds are limited. It is critical that the financial cost to him of these proceedings does not affect his future care options or exceed what is in his best interests.
Given that the trigger has been whether heirlooms have to be sold, a 'Jarndyce v Jarndyce' situation cannot be allowed to develop which means they have to be sold to pay the legal costs incurred in deciding whether they should be sold.
RBS's conduct has resulted in a great deal of local authority and legal time being spent trying to keep abreast of rapidly-changing developments.
Hopefully, the appointment of a litigation friend for him will help to ensure that the approach in future is more proportionate to what his father, the local authority, the court and others can afford.
Sale of paintings and/or other assets of RGS
By consent, the county council was appointed to make decisions for RGS about his property and affairs because he was found to lack capacity to make these decisions for himself.
RGS's approximate weekly income is £256 and his outgoings £513. This includes care home (and other care fees) of £390 and personal spending of £50.
There is, therefore, a monthly shortfall of approximately £1200, or £14,400 per annum.
That has to be budgeted for in the same way it would have to be if he still had capacity to pay the bills himself.
It is simply that, because he lacks capacity to decide 'how to balance the books', the deputy must make that decision for him, or (where there is a significant dispute) the court.
In addition to this monthly shortfall, RGS may have liabilities of around £107,800 in unpaid taxes, care home fees, legal fees, accountancy fees, deputy costs and other professional costs.
Sadly, I have to say that it seems plain to me that his son is responsible for the greater part of the legal and deputy fees.
To recap, there are liabilities of around £107,800 and his assets are reducing at a rate of £14,400 per annum. Where is this money to come from?
If RGS had capacity, it would be for him to decide how best to meet his liabilities and satisfy his creditors. However, it now falls to me.
There are unsold foreign shares of £10,000 which may not be easy to realise; savings of £8,500 or so; and miscellaneous items in storage worth around £10,000, some of which may be heirlooms or have a family sentimental value. We are still well short and so must turn to other possible sources, none of which are ideal from RBS's perspective:
£78,283.78 owed, or possibly owed, to RGS by his son, RBS
£22,000 owed, or possibly owed, to him by his daughter, L.
His cottage, which has a sale value of £475,000 (but is subject to one or more charges) and a rental value of around £1,680 per month.
His paintings, worth perhaps £50,000. These include a Lucien Pissarro dated 1906, worth £20-30,000.
Other possible options
What is crystal-clear is that RBS's current demands are unrealistic. He has not paid back any money owed to his father; he claims that the cottage should be excluded from all calculations and opposes the sale of any heirlooms. His actions have inflated the costs chargeable to his father and the amount that must now be found to balance the books — making it less likely that his father will be able to afford the sort of expensive 24/7 care package that may be a prerequisite of any return home. Apart from asking his father to pay some of his own legal fees, his answer to this problem is that,
That takes matters no further.
I shall be happy to accept all realistic proposals and advice from the parties. However, failing fairly swift agreement, I shall have to cut the Gordian knot. The main possibilities appear to involve the following options or a combination of them:
• Renting the cottage at a rent of £16,800 per annum, with RBS returning to his previous place of residence (This may involve authorising the council to take possession proceedings).
• Renting the cottage to RBS at an under-value of £1,000 per month, provided this does not disadvantage the public or his sister (perhaps by off-setting it against any money which she owes her father, or by bringing it into hotchpot).
• The sale of the cottage, or further charges on it.
• The sale of properties belonging to RBS.
• The repayment of some or all of the £78,283.78 owed, or possibly owed, to RGS by RBS.
• The repayment of some or all of the £22,000 owed, or possibly owed, to him by his daughter, L.
• The sale of paintings, furniture and heirlooms.
• Deferring the payment of some family debts by the use of a hotchpot clause, provided that this does not disadvantage the public and leaves enough money for RGS's future care.
It is not appropriate for RBS to be appointed as his father's deputy for property and affairs, in place of the county council. The conflict of interest is too great and, in any case, his previous unauthorised dealings with his father's assets make this impractical.
The statutory Will application
The deputy has applied to the court for it to determine whether it is in RGS's best interests to make a statutory Will on his behalf and, if so, in what terms.
That application did not include the information required by Practice Direction 9F.
The usual procedure in such cases is that the Official Solicitor, or another suitable person, is invited to act as litigation friend for the person thought to need a statutory Will.
Before determining the terms of any Will made for RGS, the court will need to consider the case for a hotchpot clause and ensure that the Will is in RGS's best interests, when viewed in the round with any orders made in relation to the repayment of debts by his children, the sale or occupation of his cottage, the disposal of heirlooms and so on.
The court is aware of the following history:
I am concerned by the possibility that a Will of questionable validity exists which excludes person(s) whom the testator might be expected to provide for. I will listen carefully to the representations of the parties but, if lack of testamentary capacity is established, at present my view is that it is in RGS's best interests to make a statutory Will. It would be prudent, avoid upsetting and expensive litigation later and ensure that his grandchildren's situation is considered fairly.
I also believe that it would be helpful, and actually cost-effective, to have the Official Solicitor's expertise as the litigation friend. This will also help to ensure that the final orders are in RGS's best interests when viewed in their entirety.
It seems to be common ground that the starting point for the Will should be an equal division of the estate between both children. The evidence, I am told, indicates that he wished to treat both of them equally.
The issues to be determined therefore appear to be:
Residence, contact and other personal welfare issues concerning RGS
RBS is very clear that it is in his father's best interests to return home. According to RBS's email to his father's social worker PF, dated 8 April 2010:
The friends who gave oral evidence would also welcome this. They told me that RGS has expressed a wish to go home, can 'walk perfectly well' and is 'a perfectly lovely man.' He would require professional carers but would benefit from his son's company and support, and from being able to see the boats: 'His life is cigarettes and [his home].'
RGS's preference is disputed — as probably is the extent to which any preference is based on an adequate understanding of his care needs, the feasibility of home and residential care, the extent to which he will enjoy living at home and so forth.
His wishes and feelings are critical. After all, why would anyone wish to inflict care on a fellow human-being that is contrary to their wishes if they can be cared for in accordance with their wishes?
His daughter seems to believe that her father is well placed, and best placed, where he is, as do the professional carers.
On 20 May 2010 the Age Concern IMCA (Independent Mental Capacity Advocate) reported that:
Apparently, RGS did not think that it was worth extensively adapting his home to make it fit for him to return.
Some people were concerned about his food and fluid intake, and 'general neglect,' before his hospitalisation and transfer to residential care.
On 18 August 2010, the social worker PF stated that RGS had poor short term memory, was disorientated in time and space and could remember his name but not his date of birth. He found 'it difficult to cope with the behaviour of his children and, as a result, restrictions were placed on their visits to him at [X] Manor.'
On 16 September 2012, a report was prepared by an independent visitor, S, who is a member of the Association of Independent Visitors and who, coincidentally, has 16 years experience as a Court of Protection visitor.
She visited RGS at X Manor on 6 September 2012. She found it to be 'a very comfortable and homely environment providing good quality accommodation for its residents' [29]. Furthermore, in her opinion, he 'is well placed in this home where his needs, both care and material, are being met. The client was able to tell me that he is very happy in the home and staff are kind to him' [30].
S reported that RGS is an active and willing participant in all activities and also that:
I am told by RBS that that his aunt does not wish to see her brother just at the moment. The 'immediate, urgent, issue' therefore is to arrange a visit home for his father [51].
RBS 'totally' objected to any visit being made to his father by a court visitor without him being present as 'a waste of time and public money' [51]. I don't agree. The court visitors will need to see his father alone but no doubt will also wish to speak with RBS. Whether they also need to see father and son together is a matter for their professional judgement.
I understand that RBS also considers that I should not give advance warning of any visit I make to his father, on the basis that I will receive a false impression of the care home. It is not my function to assess the suitability of the care home. I am not an expert. It is my function to ensure that I have an accurate understanding of his father's wishes and feelings. RBS's litigation friend and solicitor can accompany me and, as an officer of the court, make a note of what his father tells me, for copying to RBS and the other parties.
Two other issues to consider in terms of RGS's current residence are his smoking rights and his access to the internet.
Smoking is a legal activity and he is allowed to smoke, but apparently he smokes less than he would like. He has extreme vascular problems which resulted in toe amputation. He is subject to the usual indoor smoking regulations; and it may be that his opportunities are also limited by needing staff to accompany him outdoors and/or by his vascular condition. He was a 40-60 a day man, apparently, and it is common ground that he is an enthusiastic smoker who has always derived pleasure from the habit, which he wishes to continue. It would be impertinent of me to interfere with his life-long pleasures and habits — his preferences are perfectly clear — provided that he is not about to cause himself significant pain or distress, such that if he had capacity he would be likely to limit his smoking to the current level. If a choice has to be made, my duty to him is to make decisions that help him to live out his life as a happy man, who does not suffer unduly, rather than as a sensible man.
As concerns his internet access, this issue involves freedom of expression and, if a form of contact, cannot be prohibited by a deputy. I am not sure if this is something RGS seeks, or something which RBS wishes to arrange so that his father can access his Facebook pages. As a general principle, he ought not to be denied any internet and email facilities that the other residents enjoy provided he has the capacity to derive some benefit. The only caveat would be if lacks capacity to decide this for himself and using the facility causes him more distress than benefit because of misinformation and/or interference with his care.
In order to keep the rising costs as proportionate as possible, I have decided to commission visits and reports from two court visitors: A Special Visitor and a General Visitor. As I explained to the parties at the hearing, a set fee is payable to court visitors. Given the fee, and the complexity of the issues, these reports will be in the nature of 'scoping reports'. If, when taken with the other independent evidence, they indicate very firmly that it is in RGS's best interests to remain at X Manor then I will consider whether it is appropriate to proceed any further with the review. If, however, the reports suggest that there is a feasible alternative to the current arrangements, which accords with RGS's wishes and may be in his best interests, then I will consider with the parties how this can be explored and/or progressed in a way that is affordable. I will also be visiting RGS myself, to hear what he wants to say to the judge in his case.
The steps to be taken in respect of the personal welfare issues are therefore:
Litigation capacity
RBS's litigation friend should explore with the deputy and the other parties ways of advancing and, where appropriate, agreeing litigation issues. However, the court does not envisage approving any consent orders until a final declaration has been made as to his litigation capacity.
If RBS has (or regains) litigation capacity, the court will need to take a robust approach to some issues so as to ensure that the costs are proportionate to their significance and what his father can afford.
Unauthorised publication of information about the proceedings
One can legislate for marriage but not for a happy marriage. The law provides a framework for dealing with or containing disputes but it cannot remedy the underlying realities and relationships. Things are as they are. RBS has endured mental health problems since the age of 16 and quite often this has been trying for him, and no doubt for his father, to cope with. His father appears no longer to have capacity to decide how to deal with, or to respond to, his son's behaviour when it affects his own well-being and interests. I must decide for him. On the current evidence, I think his father is devoted to his son and would wish me to take the same forgiving approach to his actions that he seems to have taken over the years. At present, therefore, I continue to prefer not to take any formal steps against RBS. The position remains the same as set out in my order of 18 May 2011:
Put differently, I am counting the breaches and reserve the right to take the conventional action in respect of all of them, but hope to avoid having to do so. Ideally, he will bear in mind the benefit to him of now seeing the court visitor, and the cost to him of continuing to breach orders, such that when the time comes I cannot trust him to observe undertakings he offers, or orders he asks me to make, concerning his father's personal welfare. He must also refrain from doing anything that injures the children's interests and feelings, and those of his sister and individuals who are simply doing their job by carrying out the court's or deputy's instructions. Hopefully we will not reach the tipping point.
Media applications concerning attendance and reporting of proceedings
The final matters to be determined are the press applications and (in effect) RBS's own request that he be allowed to speak directly with the media, who should be permitted to report the case freely:
Precisely how these important issues are resolved will depend on the discussions between the parties, their legal submissions and the outcome of the visitors' reports concerning litigation capacity, best interests, and other relevant matters.
I have made it clear to RBS that in principle I have no objection at all to him criticising me and the court publicly, calling for the court's abolition, and so on; and, of course, he has already made a head start in this respect. I have no wish to restrict his freedom to express himself publicly more than is absolutely necessary.
How this is done needs to be carefully considered before a decision is made, because it could have a detrimental impact on his father (who may lack capacity to consent to confidential information about him being publicised) and on the welfare of others, in particular the children and his sister.
Some of the obvious considerations include the private lives, feelings and Article 8 rights of RGS, his children and their children; Article 10; the importance of freedom of expression and a free press; the risk of (public) self-incrimination; the fact that some information is already in the public domain, but not nationally; the likely effect of publicity on RGS's health, treatment and care; its likely effect on his son's mental health and welfare; how useful the usual rules and principles are in this case given RBS's medical history and the likelihood of future periodic breaches; and the need for the deputy and care home to be able to respond to unauthorised disclosures of information, and unfair or inaccurate accusations — which, if uncorrected, may discourage vulnerable people to seek or accept the professional help they need. [20]
What I would hope RBS can reflect on is that the unilateral disclosure of information by him is both unfair and unsafe, and that there is a difference between secrecy and privacy.
When he refused to disclose what property he owns, he can only have been claiming a right to privacy. I assume he did not see it in terms of secrecy or being secretive. Similarly, when he refused to see the court-appointed doctor, I assume that he was claiming a right to privacy.
His own GP is not a 'secret doctor' because the press have no unqualified right to be present during their consultations, or to report what is said. All patients have a right to expect that information about them will be held in confidence by their doctors and social workers, and to expect that any overriding, future, need to breach this right will go no further than necessary, and only exceptionally involve seeing it in national newspapers.
Everyone in court on 2 November benefits from, and enjoys, their privacy. This is not part of an over-powerful state but traditional English liberalism, a way of preventing the state and the public from over-powering the individual. Society is made up of individuals, and each individual has distinctive feelings, personal goals, traits, habits and experiences. Because this is so, most individuals wish to determine and develop their own interests and course in life. The existence of a private sphere of action, free from public coercion or control, is indispensable to that independence which everyone needs to develop as an individual. That is not secrecy or an abuse of state power, but John Stuart Mill:
'To individuality should belong the part of life in which it is chiefly the individual that is interested; to society, the part which chiefly interests society.'
Not to allow an incapacitated person the same right to privacy or confidentiality that we claim it for ourselves would be to discriminate against them because of their mental illness and vulnerability.
The one, highly important, difference is that whilst in an ideal world incapacitated people would have exactly the same right to privacy and confidentiality that the rest of us enjoy, when judges make decisions for them this brings into play the competing consideration that the public ought to know how courts of law function and administer justice on their behalf: what kinds of decisions they are making, the quality of those decisions, and so forth. There is a high public interest in seeing that hearings which determine the rights of incapacitated people, and their families, are fair and properly administered.
If anonymity is in RGS's best interests, I hope that the court and the parties can agree a way forward that allows the key issues and the respective views of the parties to be reported: X's son said that, his witnesses said that, etc. The press has worked well with the court and the other parties, and hopefully this constructive relationship will continue.
§10 — ISSUES TO BE KEPT UNDER CONSIDERATION BUT ON WHICH FURTHER EVIDENCE AND SUBMISSIONS ARE NOT REQUIRED AT PRESENT
RBS has alleged that the deputy has intercepted his 'personal confidential mail,' contrary to Article 8 of the European Convention on Human Rights and data protection legislation. This may, perhaps, be an error on the Post Office's part. The court's initial interim order of 20 May 2010 authorised the local authority to ask the Post Office to redirect his father's mail. It is possible that the relevant sorting office is not distinguishing between letters to R[G]S and R[B]S, who presently occupies his father's cottage.
For the moment, I will simply direct that the deputy reinvestigates what has occurred and reviews the current arrangements with the Post Office, in order to try and ensure that RBS's mail is not redirected accidentally.
§11 — POSSIBLE ISSUES CONCERNING WHICH THE COURT IS TAKING NO FURTHER ACTION AT PRESENT
No one has applied for a deputy to be appointed for RBS or for someone to be authorised to act as his litigation friend in other court proceedings.
Quite properly, X Council does not believe that it could also act as his deputy for property and affairs because of the likely conflict of interest.
§12 — DECLARATIONS, ORDERS AND DIRECTIONS
Having regard to the above evidence and considerations, I make the following order:
UPON
Hearing counsel for the deputy and from RBS and three of his witnesses in person
WHEREAS
(1) The purpose of the hearing was to decide whether or not RBS has capacity to litigate in these proceedings.
(2) On its own motion, the court has considered whether it would be in the best interests of RGS for the existing consent order concerning his personal welfare to be reviewed by the court.
(3) The deputy has applied for an order authorising it to execute a statutory Will on behalf of RGS.
(4) The court has given directions as to the preparation of a statutory Will on behalf of RGS and directions as to how the other outstanding issues should be progressed.
The outstanding issues are:
(a) The litigation costs and other costs of the parties
(b) The deputy's application concerning the sale of RGS's paintings
(c) The need for a statutory will
(d) A review of where it is in RGS's best interests to reside, care and contact
(e) RBS's litigation capacity
(f) The unauthorised publication of information about the proceedings
(g) The media applications
(5) The Official Solicitor already acts on RGS's behalf as his litigation friend in relation to the media applications.
(6) The court is satisfied on the evidence presently available to the court that RBS lacks capacity to litigate in these proceedings. However, being conscious that it has not received medical evidence as to this, it has decided to make an interim declaration only at this hearing, so as to give him a final opportunity to undergo a medical assessment of his litigation capacity.
IT IS HEREBY DECLARED IN THE INTERIM THAT
(1) Pursuant to section 48 of the MCA 2005, there is sufficient evidence to justify a reasonable belief that RBS may lack capacity to litigate in these proceedings.
(2) It is in his best interests that Mr A is appointed to act as his litigation friend in these proceedings until further order.
AND THE COURT NOW ORDERS AS FOLLOWS
(1) Mr A is appointed to act as RBS's litigation friend in these proceedings until further order.
Visitor Reports
(2) The Public Guardian shall arrange for a Special Visitor to visit RGS and to file a report dealing with:
(a) RGS's testamentary capacity
(b) His capacity to decide for himself where to reside, what care he requires and what contact to have with his children
(c) If he lacks capacity to decide for himself where to live and what care to receive, his wishes and preferences concerning the same, and whether it is likely to be in his best interests to receive treatment and care at X Manor, to return home or to be cared for in some other way.
(d) If he lacks capacity to decide for himself what contact to have with his children, whether his care and treatment needs mean that it is likely to be in his best interests for contact with his son to be supervised.
(e) Whether it is likely to be in his best interests to visit his cottage, either for day trips or for longer periods.
(f) Any observations as to his smoking habits and access to the internet or email, in particular his capacity to enjoy the same.
(g) The extent to which reports about him in local and national newspapers are likely to distress him and/or affect his future care (if at all) and whether he has capacity to consent to the publication of such information.
(h) When conducting their visit, the Special Visitor is requested to ask RGS where he would prefer to live, and to consider whether it will be helpful to see him with his son at some point.
(3) The Public Guardian shall also arrange for the same Special Visitor to visit RBS and to file a report dealing with:
(a) His litigation capacity in connection with these proceedings and (if the visitor does not consider it wholly artificial to give such an opinion, having regard to the fact that many issues are interconnected) whether he has capacity to make litigation decisions in relation to any of the applications before the court should they later be heard separately (deputy's application, personal welfare, statutory Will).
(b) Whether he has capacity to consent to the Joint Applicants publishing reports of these proceedings.
(c) The effect of these proceedings on his mental health and how any adverse effects can best be minimised and/or managed.
(d) The extent to which he has, and has had, capacity to decide to publish information about these proceedings in contravention of the law.
(e) Whether, having regard to his current mental health, he is likely to be able to comply with future undertakings and orders concerning his father which require him not to remove his father from X Manor without agreement and/or to return him there after visits home or out with his son.
(4) The Public Guardian shall also arrange for a General Visitor to visit RGS and his cottage and to file a report dealing with:
(a) Whether it is likely to be feasible for him to be cared for at home.
(b) The likely annual cost of such care.
(c) Whether home care would be likely to be in his best interests.
(d) If it would not be in his best interests, whether it would be in his best interests to visit his cottage, either for day trips or for longer periods.
(e) Whether it is in his best interests that his son's visits to him are supervised and, if so, to what extent.
(f) His views as to making provision for his grandchildren, now or in his Will.
(g) When conducting their visit, the General Visitor is requested to ask RGS where he would prefer to live, and to consider whether it will be helpful to see him with his son at some point.
(5) The documents copied to the Visitors shall include this judgement.
(6) The reports shall be filed by 4pm on Friday 18 January 2013.
(7) On receiving the reports referred to in the preceding paragraph, court staff shall immediately refer them to the judge and copy them to all of the parties.
(8) By 4pm on Friday 11 January 2013 , the judge will visit RGS with Mr A (his son's solicitor and litigation friend), so that he has an opportunity to tell the judge anything he wishes him to know.
(9) Mr A shall take an accurate note of what RGS tells the judge and shall file and copy his note to the parties by 4pm on Friday 18 January 2013.
Directions concerning the statutory Will application
(10) Subject to consenting, the Official Solicitor is appointed to act on RGS's behalf as his litigation friend in relation to the statutory Will application.
(11) The issues to be determined appear to be:
(a) Confirmation that RGS lacks testamentary capacity (or otherwise);
(b) Whether to include his grandchildren as substitute beneficiaries;
(c) Whether to include a hotchpot clause;
(d) Ensuring the court's orders are in RGS's best interests when taken together.
(12) Within 5 working days of receiving this order, the deputy shall send to the Official Solicitor:
(a) A copy of this judgment, pages 41-43 of which summarise the known history in relation to the statutory Will issue;
(b) Copies of all previous court orders made in these proceedings;
(c) Copies of all other information in the deputy's possession which is relevant to the statutory Will issue;
(d) Insofar as the Official Solicitor requires any or all of them, the documents listed in Practice Direction 9F.
(13) Any statements or submissions which the other parties wish to make concerning the preparation and terms of a statutory Will on behalf of RGS shall be filed and copied to the other parties by 4pm on Friday 8 February 2013.
(14) Any statement made by the Official Solicitor concerning the preparation of a statutory Will shall be filed and served by 4pm on Friday 22 February 2013.
(15) Upon receipt of this order, the deputy shall copy to the Official Solicitor any financial information which the Official Solicitor requires for the purposes of funding legal representation for RGS.
Directions concerning the other issues
(16) Any statements and other evidence that the parties wish to rely upon in relation to the Visitors' reports and the following matters shall also be filed and served by 4pm on Friday 8 February 2013:
(a) RGS's residence, care, personal welfare and contact with his family
(b) The sale of RGS's paintings and/or other assets
(c) The future occupation and/or sale and/or rental of RGS's cottage
(d) The repayment of any monies owing to RGS
(e) How RGS's liabilities and future care needs can best be settled or financed
(17) For the avoidance of doubt, all statements filed with the court must be served on the lead Joint (Media) Applicant, namely Independent Print Ltd, as well as on the other parties.
(18) Until further order, no party, persons (whether acting by themselves or in any other way) or companies (whether acting by their directors, employees or agents or in any other way) shall publish or broadcast, in any newspaper, magazine, public computer network, internet site, social network or cable or satellite programme service:
a) any orders or directions disclosed to them in connection with these proceedings;
b) any other information relating to proceedings in the Court of Protection concerning RGS.
(19) For the avoidance of doubt, paragraph (18) has effect even if this order is not sealed.
Roundtable meetings and future hearings
(20) During the fortnight commencing Monday 25 February 2013 , the parties shall seek to agree what information or further information relating to these proceedings may be published by the Joint Applicants and upon what terms.
(21) The parties may hold a roundtable meeting at any time provided that the Official Solicitor agrees.
(22) If considered appropriate, the parties may submit a consent order for the court's attention in relation to any or all of litigation issues following receipt of the Visitors' reports.
(23) The preceding paragraph does not prevent the parties from discussing and seeking to agree litigation issues before receiving the Visitors' reports but the court will not make or approve any final orders or declarations until a final decision has been made by it as to RBS's litigation capacity.
(24) This case is to be set down for a final two-day hearing of all outstanding issues on the first-available date after Monday 18 March 2013 . The parties shall liaise with the court as to a convenient date.
(25) The deputy shall file an agreed bundle at least 7 days before the hearing and any position statements shall be filed at least 2 days before the hearing.
(26) The parties and any person affected by this Order may apply to vary or discharge it on 48 hours notice.
(27) Save as varied by this order, or inconsistent with it, the court's previous orders in these proceedings remain in force.
(28) If at any stage any of the parties consider that a hearing is likely to be necessary before 18 March 2013, whether for directions or in order to determine issues, that party must promptly file and serve an application form in Form COP9, in which is set out the reasons, a time estimate, and whether the hearing should be by telephone or personal attendance.
(29) This judgment and/or any part of it may be published by the Joint Applicants if and only if both the Official Solicitor and the deputy agree that it or that part of it may be published by them.
(30) All communications with the court in response to this order shall state the above case number and be sent to:
To: X County Council
Public Guardian (Visits Section)
Official Solicitor
Mr A (Solicitor) on behalf of RBS
L
Independent Print Limited (lead Joint Applicant)
Note 1 It does not matter whether the impairment or disturbance is permanent or temporary. [Back]
Note 2 See Court of Protection Practice 2012 , Ashton et al, at p.922. [Back]
Note 3 It is therefore going too far to say that the quality of the decision is irrelevant as long as the person ‘understands’ what s/he is deciding. As Ashton et al note, ‘in Mitchell v Alasia [2005] EWHC 11 (QB), Cox J relied on qualities such as impulsiveness and volatility when deciding that the claimant was incapable of managing and administering his own affairs.’ Similarly, in The NHS Trust v Miss T [2004] EWHC 2195 (Fam), although there was no problem in respect of T's intellectual capacity, and she was able to acknowledge intellectually that her belief was delusional, her wishes were driven by a delusional belief that any transfusion would only add to the evil circulating within her system. [Back]
Note 4 See Sheffield City Council v E & Anor [2004] EWHC 2808 (Fam) (02 December 2004). According to Munby J (as he then was), there is no principle, either of law or medical science, which necessarily makes it impossible for someone who has litigation capacity at the same time to lack subject-matter capacity. However, only in unusual circumstances will it be possible to conclude that someone who lacks subject-matter capacity can nonetheless have litigation capacity. [Back]
Note 5 See Munby J (as he then was) in Re MM [2007] EWHC 2003 (Fam) , [2009] 1 FLR 443 and Andrew Edis QC, sitting as deputy High Court Judge, in Saulle v Nouvet [2007] EWHC 2902 (QB) . Likewise, the statutory principles in section 1 by and large follow the common law approach. [Back]
Note 6 See Sheffield City Council v E & Anor [2004] EWHC 2808 (Fam) (02 December 2004), Munby J. [Back]
Note 7 Chadwick LJ in Masterman-Lister , at para. 75. [Back]
Note 8 Chadwick LJ in Masterman-Lister , at para. 79. [Back]
Note 9 Ibid. [Back]
Note 10 Kennedy LJ in Masterman-Lister, at para. 26, [Back]
Note 11 Chadwick LJ addressed the same point in Masterman-Lister , at para [83]. [Back]
Note 12 See Dunhill v Burgin [2012] EWCA Civ 397 . [Back]
Note 13 See Folks v Faizey [2006] EWCA Civ 381 . [Back]
Note 14 See B v B [2010] EWHC 543 (Fam), Bennett J. [Back]
Note 15 Ibid. [Back]
Note 16 RP and others v United Kingdom , Application No. 38245/08, 9 October 2012. [Back]
Note 17 Where a resident no longer occupies a dwelling as his home, its value should be disregarded if it is occupied in whole or in part as their home by a relative who is incapacitated (or aged over 60). Different views are taken as to whether the owner can permit a relative to move into their home after going into a care home, whether this amounts to depriving oneself of an asset, and whether the relative must already be occupying the dwelling as their home when the owner goes into a care home. If the purpose of the regulations is to protect vulnerable people from homelessness, rather than to enable them to exploit the rules as a means of acquiring a personal benefit at the public expense, i.e. getting other people to pay, RBS may have an uphill task. See the National Assistance (Assessment of Resources) Regulations 1992 and the CRAG (Charging for Residential Accommodation Guide) guidance issued by the Department of Health. [Back]
Note 18 See note immediately above. [Back]
Note 19 See the National Assistance (Assessment of Resources) Regulations 1992 , reg. 2(1), and the CRAG guidance, para. 7.002. [Back]
Note 20 RBS showed me a letter to a local newspaper in response to one article: ‘If what was written was factually correct, this has to be a case of misguided county council officials at the worst. Is this treatment of old people what our fathers and forefathers fought for?’ [Back]