Harrison v South Tyneside Council HM Land Registry Adjudicator Decision Ref/2012/886
Mental capacity – residence
Summary and comment
We would not usually cover decisions of Her Majesty’s Land Registry Adjudicators but this one is of interest, not least because it demonstrates how broad ranging the MCA 2005 can be. It involved a common dispute. The late Mr David Jackson had dementia, lacked residential capacity and was placed by the council in residential accommodation until his passing. The administrator of his estate pursued a range of arguments in respect of the fees. For example, he contended that the costs should have been borne by the NHS; indeed, that Mr Jackson ought to have been sectioned under the Mental Health Act 1983 because he lacked capacity to consent to be admitted to the care home and did not require it because he had his own home.
Unsurprisingly, the arguments were rejected. The Deputy Adjudicator held:
“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 [National Assistance Act 1948]. 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  UKUT 12 (AAC)).”
The fact that he had his own home was irrelevant if he needed care and attention which was not available to him there (para 6). Thus, the local authority was able to declare a charge on the property pursuant to section 22 of the Health and Social Services and Social Security Act 1983 which provides: 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-
fails to pay any sum assessed as due to be paid by him for the accommodation;
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.
If an assessment of the accommodation costs has been properly made, and the only reason the person accommodated does not know of the amount due is because they lack the necessary mental capacity, they are still liable. Otherwise it would be impossible for a local authority to protect itself in the way intended under section 22 without there being a lasting power of attorney or the intervention of the Court of Protection (para 13).