REF/2012/886

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY
LAND REGISTRATION ACT 2002

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

BETWEEN

JOHN PAUL HARRISON
(as administrator of the estate of the late David Jackson)

 APPLICANT

and

SOUTH TYNESIDE COUNCIL

RESPONDENT

Property Address:   50 Ullswater Avenue Jarrow NE32 4EY
Title Number: TY130959
 
Made by: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry
 
___________________________________________________________________________

DECISION

 Respondent held to be entitled to charge under section 22 of the Health and Social Services and Social Security Act 1983 although it was declared only after the death of the person provided with accommodation.
Cases referred to: St Helen’s Borough Council v Manchester Primary Care Trust, [2008] EWCA Civ 931; Coughlan v East Devon Health Authority; Wychavon  District Council v EM [2012] UKUT 12 (AAC); Kent County Council v Fremlin, REF/2010/756; Brighton & Hove City Council v Gibney, REF/2012/26; Hertfordshire CC v Wilson, REF/2004/547.
 
1.	For the reasons given below, I shall direct the Chief Land Registrar to cancel the application of the Applicant dated 24 July 2012 to cancel the unilateral notice registered in favour of the Respondent council on 17 June 2011.

2.	This decision is given without an oral hearing at the request of both parties.  Mr. Harrison’s application is made as administrator of the estate of the late David Jackson, who died on 18 January 2011 leaving a net estate certified on the grant to Mr. Harrison as not exceeding £82,000.  The principal asset in the estate and the only one of any real commercial value was Mr. Jackson’s home at 50 Ullswater Avenue, Jarrow (the property).  Mr. Jackson was the registered proprietor with title absolute at all material times prior to his death and he remains registered as proprietor.  His wife had died in 1997, and under his will dated 4 March 1982, in consequence of his wife predeceasing him, his daughter and only child, Pauline Kennedy, was appointed executrix.  It is not in evidence whether she acquired any beneficial interest under the will, and the grant to Mr. Harrison is not with the will annexed but is said to be for Mrs. Kennedy’s use and benefit until further representation is granted.  This is said by Mr. Harrison to be because she has her own claim against the estate, and he has provided details of that claim to which I shall return.

3.	For some years prior to his death, Mr. Jackson suffered from dementia, but nobody was ever appointed under a lasting or enduring power of attorney to act for him, not did the Court of Protection become involved.  By the middle of 2007, Mr. Jackson was no longer able to live alone at his home and he was placed by the council in residential accommodation from 1 June 2007 until his death in January 2011.  In doing so, the council was acting under Part III of the National Assistance Act 1948.  Under section 21(1) of that Act, it was required it to make arrangements for providing residential accommodation for persons aged 18 or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.

4.	In my judgment, Mr. Jackson did avail himself of the accommodation despite his lack of capacity.  It was accommodation which he required to receive the necessary care and attention not otherwise available to him and the fact that he lacked capacity to understand that does not mean that he did not avail himself of it within the meaning of the statute.  I would add that if that were not the case, then the provision of the accommodation would in the circumstances have been a necessary either at common law or under section 7 of the Mental Capacity Act 2005, and he would have been obliged to pay a reasonable price for it, which would have been recoverable from his estate (Wychavon  District Council v EM [2012] UKUT 12 (AAC)).

5.	Mr. Harrison, like others before him in similar cases, has sought to contend that the council was not in fact acting under those powers but was acting unlawfully both because Mr. Jackson’s dementia was so severe that he required to be provided for by the NHS, and indeed ought to have been sectioned under the Mental Health Act, because he lacked capacity to consent to being admitted to the care home, and because he had no need of accommodation because he already had his own home.

6.	These points are misconceived and self-contradictory.  It is clear that the NHS was refusing to pay for Mr. Jackson’s care and that there is currently an appeal against that refusal.  In the ordinary course of events, if that appeal is successful, as I understand it, the NHS will reimburse the council and there will no longer be any sums for which the estate is liable.  However that may be, it is plain that as a result of the NHS refusing to take responsibility, and given the severity of Mr. Jackson’s dementia, as described by Mr. Harrison, he needed care and attention because of his disability which was not otherwise available to him.  As I have pointed out before, the alternative would have been to leave the claimant in his own home without the care and attention he needed.  The local authority had no power to compel the NHS to take responsibility even if, which I understand to be the subject of an appeal by Mr. Harrison or Mrs. Kennedy against the NHS decision, it should have done so (St Helen’s Borough Council v Manchester Primary Care Trust, [2008] EWCA Civ 931).  The fact that Mr. Jackson had his own home is irrelevant if he needs care and attention which is not available to him there.

7.	It is also plain that the fact that Mr. Jackson had no capacity to consent to being admitted to the care home does not detract from the statutory obligation of the council to provide residential accommodation for him if he needs care and attention not otherwise available to him.  I am sure that no such contention would have been made if Mr. Jackson’s assets had not been such as to result in an obligation to pay part of the costs.  The whole tenor of these submissions is that if the NHS will not pay for care, the person with the care needs must be left untended in his own home, or possibly even homeless, until it changes its mind.  

8.	The next issue raised by Mr. Harrison is whether Mr. Jackson’s capital was such that the council was entitled to charge him at all for cost of the accommodation.  That turns on a contention, made initially in the broadest terms that there were others with beneficial interests in the property which reduced the value of Mr. Jackson’s interest to nil for care fees purposes.  The only indication of any such beneficiaries was that it was said that Mrs. Kennedy had a claim to the property under the doctrine of proprietary estoppel.  In a statement dated 5 November 2012, Mr. Harrison stated that this claim was based on her having looked after both her parents for many years due to their dementia, and that Mr. Jackson had told her that the house would be hers after his death.  It is possible that if Mr. Jackson had then made a will leaving the house to somebody else, there might be a claim against the estate on this basis.  There is no possible way, however, that such a claim could be raised against a creditor of the estate.  The doctrine of proprietary estoppel is dependent upon unconscionable conduct by the person against whom the estoppel is alleged and is given effect to, if at all, by a court on the basis of the facts as they then exist at the date of the hearing.  There is nothing unconscionable in a creditor seeking repayment of its debt from the debtor just because the debtor has promised to leave his assets to somebody on his death.

9.	In assessing Mr. Jackson’s capital, the council correctly assessed the property at its open market value at the relevant date.  As it was well in excess of the capital limit at that time, it also correctly determined that Mr. Jackson was under a liability to contribute to the costs of his accommodation. I am unable to understand Mr. Harrison’s attempt to rely on Article 6 of the European Convention on Human Rights in this context.  The council is performing its duties under Part III of the 1948 Act and any question whether it is doing so correctly is something that can be determined by appropriate legal proceedings.  

10.	Mr. Harrison has also sought to rely on Articles 8, 14 and 17 of the Convention, and Article 1 of Protocol 1 of that Convention, in each case misdescribing them as being part of the Human Rights Act 1998.  He has given no explanation why these are relevant to this case and I am satisfied that they have no relevance.  It is entirely compatible with Mr. Jackson’s human rights that he should be provided with accommodation that he needs due to his dementia, while at the same time being required to contribute to the costs.  The real grievance is, as usual, on the part of those who inherit from him, at having their inheritance reduced as a result.  Nor can I detect any basis for the claims that this decision would deny the right to seek a judicial review of any future decision of the Primary Care Trust, that the council abused its authority or that the decision of the council is contrary to public policy.  

11.	There may be an issue to be investigated whether, in the light of Coughlan v East Devon Health Authority, on which Mr. Harrison also relies, some part of the expenditure for nursing or health care fell outside the scope of section 21 of the 1948 Act, but it is plain that a very substantial part of the cost must have related to the accommodation and had to be paid by Mr. Jackson.  The fact that there may a question as to whether part of the sums claimed was properly incurred does not prevent either the declaration of a charge or its registration if there has been a failure to pay what is on any account due (Kent County Council v Fremlin, REF/2010/756; Brighton & Hove City Council v Gibney, REF/2012/26).

12.	A further question which appears to have been raised by Mr. Harrison is whether there was any failure on the part of Mr. Jackson to pay what was due from him, this being a precondition of the right to declare a charge.  He appears to be relying on a passage in my decision in Hertfordshire CC v Wilson, REF/2004/547, where I stated at paragraph 23:

“The right to create a charge under section 22 of the 1983 Act only arose if Mr. Wilson failed to pay any sum assessed as due to be paid by him for the accommodation.  In the ordinary use of the English language, I am unable to see how anybody can fail to pay a sum when they have no knowledge or in any real sense any means of knowledge, that it is due from them (if it was indeed due in the present case), and where they have been told that some other sum was due, which they paid.”

13.	That was a case where the person for whom the accommodation was provided had his daughter acting for him under a power of attorney and where the council had sought to claim by reference to internal book entries that there was a failure to pay because those book entries showed more to be due than had been demanded.  It does not apply to case where the assessment has been properly made and the only reason the person accommodated does not know of the amount due is that he lacks the necessary mental capacity.  Otherwise in such a case it would be impossible, in the absence of an attorney or the intervention of the Court of Protection, for a council to protect itself in the way intended by section 22 of the Health and Social Services and Social Security Act 1983.  

14.	In any event, in the present case, before the charge had been declared, demand was made both of Mrs. Kennedy as executrix and of Mr. Harrison as administrator and there had been a clear failure to pay.  The charge was declared only after they failed to pay.

15.	Mr. Harrison contends that this was too late, as a charge could not be declared after the death of Mr. Jackson.  He suggests that by that time the property was vested in Mrs. Kennedy as executrix although it is plain from the Land Registry entries that it remained in the name of Mr. Jackson.  In any event, I do not follow why the death of Mr. Jackson should prevent the council from obtaining the protection afforded by a statutory charge. 

16.	Section 22(1) of the 1983 Act provides that

“Subject to subsection (2) below, where a person who avails himself of Part III accommodation provided by a local authority in England, Wales or Scotland-

(a)	fails to pay any sum assessed as due to be paid by him for the accommodation; and
(b)	has a beneficial interest in land in England and Wales,

the local authority may create a charge in their favour on his interest in the land.

17.	There is nothing in section 22(1) to suggest that this is limited to his interest in the land during his lifetime only.  In general, so long as the land remains within his estate after his death the council is entitled to declare the charge.  This is so whether it remained in Mr. Jackson’s name or had been registered in the name of a personal representative.  Either way the whole legal and beneficial interest remained part of his estate.  I leave open the question whether this will still be the case if the inaction of the council has led the personal representative to administer the estate on the basis that the council has no claim to be reimbursed.  That was not the case here.

18.	Nor do I follow why the charge should only have been declared over Mr. Jackson’s beneficial interest in the property.  In the present case, Mr. Jackson was the absolute freehold owner of the land and I am satisfied that there is no evidence before me that anybody else has any beneficial interest in it.   At best, if it has not been left to her, Mrs. Kennedy may have a claim to the net beneficial estate after payment of liabilities.  The council was entitled therefore to declare the charge as it did.  

19.	Mr. Harrison then contends that this is unfair as it gives the council priority over other creditors.  It gives the council the same priority as it would have had before Mr. Jackson died.  It is a priority which the 1983 Act intended the council to have.  In any event, on the facts of this case, there is nothing to suggest that there is insufficient in the estate to meet the claims of all the creditors.

20.	Mr. Harrison contends finally that the council are protected in any event as he has a duty as personal representative to collect get in and administer Mr. Jackson’s estate according to law.   I do not see how that can disentitle the council from registering the charge that I have found that it was entitled to declare.  Nor, given Mr. Harrison’s vehement attacks on the council’s claim and on the council itself, am I surprised that the council was unwilling to trust itself to his judgment in these matters.

By Order of The Adjudicator to HM Land Registry

dated the 21st day of March 2013