REF/2012/026

 

ADJUDICATOR TO HER MAJESTY’S LAND REGISTRY

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

 

BRIGHTON & HOVE CITY COUNCIL

 

APPLICANT

 

and

 

1. PETER DAVID GIBNEY
2. JOHN EDWARD GIBNEY

As personal representatives of the late Thomas Edward Gibney

 

RESPONDENT

 

Property Address: 160 Donald Hall Road, Brighton BN2 5DJ

Title Number: ESX155215

Before: Mr. Michael Mark sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Victory House

On: 26 September 2012

 

Applicant Representation: Ranjit Bhose QC

Respondent Representation: First Respondent in person

___________________________________________________________________________­

 

 

The Respondents have no arguable case in law on the facts alleged by them for contending that the Applicant was not entitled to declare a charge over the above property to secure payment to it of the sums due in respect of the provision of accommodation by it for the late Thomas Edward Gibney under section 21 of the National Assistance Act 1948

 

1.       These are the reasons for the decision which I gave following a hearing yesterday to determine whether the Respondents’ Statement of Case disclosed any ground for objecting to the application of the Applicant which had any realistic prospect of success or whether the Adjudicator should now direct the Chief Land Registrar to give effect to the Applicant’s application dated 12 July 2011 to register the charge declared by it in respect of 160 Donald Hall Road, Brighton BN2 5DJ. At the end of the hearing I gave my decision that the Respondents could not succeed in their objections and that I would direct the Chief Land Registrar to give effect to the Applicant’s application.

 

2.       The essential facts of the case are that the Respondents’ father, Thomas Edward Gibney (Mr. Gibney), was born in 1922. By late 2010 he was 88 years old and suffering from advanced Parkinson’s disease and other ailments as a result of which his sons, who were also his attorneys under a power of attorney, contended he needed 24 hours care a day. It appears that he had been in hospital, but on 12 December 2010 the NHS Primary Care Trust (PCT) carried out a continuing healthcare checklist and concluded that there was no need to refer him for NHS continuing healthcare. His sons were notified by letter dated 23 December 2010, but they protested against this conclusion and it was reconsidered on 24 December 2010 with the same result. The decisions were notified to the Respondents who were also advised that Mr. Gibney had been found to be eligible for NHS funded nursing care, which was a contribution of £108.70 per week towards his registered nursing care, if he were resident in a registered nursing home. The Respondents have pointed out alleged defects in the procedure adopted and plainly consider the decision to have been improper and illegal. Subsequently, on 5 April 2011, Mr. Gibney was fully assessed by the PCT, but it again concluded that he had no primary need for healthcare. This decision has again been attacked by the Respondents.

 

3.       Meanwhile, in January 2011, the Applicant arranged for accommodation to be provided for Mr. Gibney, doing so, as it claimed, under section 21(1) of the National Assistance Act 1948, which 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. Mr. Gibney was accommodated by the council initially in a temporary home under transitional care provisions in respect of which he could, subject to his means, be required to pay up to £158.31 a week. He remained there until April 2011, when he was moved to a nursing home where the charge was £554.40 per week, of which £108.70 was paid by the PCT. Sadly, he died in July 2011. The Respondents have since become his executors and obtained a grant of probate to his will.

 

4.       The Applicant sought to recover from Mr. Gibney the cost of his accommodation but the Respondents as his attorneys refused to pay. As a result the Applicant declared a charge over his interest in his home, 160 Donald Hall Road. It then applied to the Land Registry to register that charge and the Respondents objected.

 

5.       Although the Respondents were invited to complete information as to Mr. Gibney’s capital and income they refused to do so, and still contended that both the PCT and the Applicant were acting unlawfully. Although they never appealed against the PCT’s decision, they have claimed that the Applicant was acting unlawfully and not in accordance with s.21 of the National Assistance Act in that (a) the Applicant was paying health care costs that should have been met by the PCT and (b) the accommodation provided by the council was not provided pursuant to s.21 of the National Assistance Act as Mr. Gibney had other accommodation available, namely the hospital where he was in December 2010 and also his home.

 

6.       In directing the hearing, I drew the attention of the parties to my decisions in Surrey County Council v Burt, REF/2005/1677, Kent County Council v Fremlin, REF/2010/756 and Torbay Council v Westwood, REF/2011/65.

 

7.       In the last of those cases, the Westwoods, assisted by a Mr. Squires, who has also assisted the Respondents in this case, contended that the accommodation was not provided under s.21 of the National Assistance Act because it was the duty of the NHS to provide that accommodation and it had unlawfully refused to do so. As I pointed out then, although Mr. Squires appears not to have drawn this to the attention of the Respondents, there was nothing even arguably unlawful in a council providing accommodation under s.21 of the National Assistance Act where the PCT had refused to provide or pay for it. Mr. Gibney was manifestly in need of accommodation for the reasons given in s.21 even if the PCT was acting unlawfully in refusing to pay for it, and the Applicant then came under a duty to provide it. For this purpose, as I held, accommodation which had been refused by the PCT was not accommodation otherwise available to a person in the position of Mr. Gibney, even if the refusal was wrongful. This is so even though Mr. Gibney had until then been in hospital since the PCT was not prepared that he should remain there. It is for the person who is unlawfully refused NHS funded care and accommodation, or those acting for that person, to take the appropriate steps to challenge that refusal, but in the meantime, a council must provide accommodation that is reasonably required under s.21.

 

8.       Nor was Mr. Gibney’s home relevant for these purposes. The Respondents accepted and indeed contended that he could not be expected to live at his home because of his care needs. Because of his problems and the refusal of the PCT to provide accommodation, Mr. Gibney was in need of care and attention which was not otherwise available to him.

 

9.       The Respondents’ final argument was that the charges made by the Applicant were unlawful in the light of the decision of the Court of Appeal in R v North Devon Health Authority ex parte Coughlan, [2011] 1 QB 213, and the decision of Charles J in R on the application of Grogan v Bexley NHS Trust, [2006] EWHC 44 (Admin). Those cases decide that certain care which ought to be provided free of charge by the NHS cannot be provided by a council and charged for under s.21 of the National Assistance Act. Even if, which I doubt in the light of the provision by the NHS of £108.70 per week towards those costs, the sums paid by the Applicant included sums which ought not to have been included, it is clear that the actual accommodation required to be provided and the sums paid in respect of that accommodation were properly paid and are recoverable. The question whether there is some element of the sums paid that go beyond what the Council could lawfully pay is a matter to be determined elsewhere. It does not affect the validity of the charge when nothing whatsoever has been paid for many months in respect of the accommodation ( Kent County Council v Fremlin).

 

10.   It is plain that there were substantial sums due to the Applicant from Mr. Gibney in respect of the accommodation provided to Mr. Gibney, and that Mr. Gibney, through his attorneys, failed to pay anything. In the circumstances the Applicant was entitled to declare the charge and is entitled to have it registered.

 

11.   I note that the Applicant agreed at the hearing that if the Respondents now complete the financial assessment forms they were asked to complete when Mr. Gibney was first taken into care, providing full details of his capital and income at that time, they will re-assess the amount of his contributions and only seek payment of the amount which would have been payable had those forms been properly completed when they should have been. This may lead to a reduction of the contribution for the first 12 weeks of the time Mr. Gibney spent in care.

 

Costs

12.   The Applicant has succeeded and, as I held at the hearing, for the reasons which I gave, it is entitled to its costs of these proceedings, which I assessed in the sum of £7732.

By Order of The Adjudicator to HM Land Registry

 

dated the 27 ^th day of September 2012