This decision, also by Sheriff P J Braid at Edinburgh, did not involve any disclosed element of intellectual disability, but did concern a situation not uncommon in relation to people with disabilities, generally those whose disabilities are increasing. Argyll and Bute Council sought to recover costs of the provision of care to an elderly lady, since deceased. She had gratuitously alienated her dwellinghouse to the defender. The Council argued that their determination that the alienation had been made knowingly with the intention of avoiding the accommodation charges could only be challenged by way of judicial review in the Court of Session.
The Council raised the action, seeking to recover the care costs, under section 21 of the Health and Social Services and Social Security Adjudications Act 1983. Section 22 of the National Assistance Act 1948, along with the National Assistance (Assessment of Resources) Regulations 1992, empowered the Council to treat a resident as possessing actual capital of which the resident had deprived herself for the purpose of decreasing the amount that she might be liable to pay for the accommodation. Sheriff Braid held that as between the Council and the resident, any such determination under section 22 of the 1948 Act was challengeable only by judicial review, since the local authority was exercising the function conferred upon it by the 1948 Act. He held, however, that it was not anomalous that the Council could make a decision which was binding in relation to the service user but not binding in relation to the transferee. Even if that was anomalous, it would be a matter for Parliament to resolve. The defender, as transferee, was entitled to defend the action on the basis that the conditions in section 21 had not been satisfied, and that she accordingly had no liability thereunder. Unlike the position of the service user, this was not a matter which the defender could challenge only by judicial review. Sheriff Braid allowed a proof.