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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Derbyshire County Council & Anor v Akrill & Ors  EWCA Civ 308 (16 February 2005)
Cite as:  EWCA Civ 308
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY COUNTY COURT
(HIS HONOUR JUDGE INGLIS)
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE NEUBERGER
LORD JUSTICE LATHAM
|DERBYSHIRE COUNTY COUNCIL & ANR||Respondents/Appellants|
|STEPHEN AKRILL & ORS||Appellants/Defendants|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MS C DAVIES (instructed by Messrs Chambers & Hind) appeared on behalf of the Respondents
Crown Copyright ©
"The local authority may, and must as directed by the Secretary of State, make arrangements for providing residential accommodation for persons in need of care and attention not otherwise available to them."
"The local authority providing the accommodation shall recover from the person accommodated the amount of the payment he is liable to make."
"As far as material, no resident should be assessed as unable to pay for his accommodation at the standard rate if his capital calculated in accordance with Regulation 21 accedes £16,000."
"A resident may be treated as possessing actual capital of which he has deprived himself for the purpose of decreasing the amount that may be liable to pay for his accommodation."
"I am persuaded also that the real questions that Mr Akrill wants to raise -- namely, firstly, whether it was open to the local authority to revisit the matter after their previous decision had undoubtedly been made and, secondly, whether in any event the revisited decision can stand as being within the scope of what a reasonable authority would decide -- are not matters for this court. The internal procedure of the local authority having been exhausted, the challenge to that decision as emerged would seem to me to be entirely a public law challenge. The arrangement under which the local authority seek to recoup their money was one under which Mr Akrill agreed to pay the assessed amounts due from him. That assessment changed and the amount due from him under the regulations changed also. If there were flaws in the decision-making and in the way in which the result of it was notified to the Akrills as there may have been on any view and as to my mind there plainly were, I do not think that it affects the amount due under the assessment."
"(1) This section relates to transactions entered into at an undervalue and a person enters into such a transaction with another person if --
"(a) he makes a gift to the other person or he otherwise enters into a transaction with the other on terms that provide for him to receive no consideration.
"(2) Where a person has entered into such a transaction the court may, if satisfied under the next subsection, make such order if it thinks fit for --
"(a) restoring the position to what it would have been had the transaction not been entered into, and
"(b) protecting the interests of persons who are victims of the transaction.
"(3) In the case of a person entering into such a transaction the order shall only be made if the court was satisfied that it was entered into by him for the purpose that --
"(a) of putting assets beyond the reach of a person who is making or may at some time make a claim against him, or
"(b) of otherwise prejudicing the interests of such a person in relation to the claim he is making or may make ..."
"(1) an application for an order under section 423 shall not be made in relation to a transaction except --
"(c) in any other case by a victim of the transaction."
"51. Under Section 423 the claimants in each case have to prove, firstly, that in November 1997 Mr Akrill entered into a transaction at an under value by making a gift of his house, which is not a contentious assertion; secondly, that the transactions entered into by him for the purpose of putting assets beyond the reach of a person who may at some time make a claim against him or otherwise prejudice the interests of such a person. The orders that can be made if the above is proved are orders for the purpose of protecting persons who are victims of the transaction and a victim is a person who is or who is capable of being prejudiced by the transaction. The key matter that has to be proved is the relevant intent or purpose of Mr Akrill when he executed the Deed of Gift. I take it to be the law that what has to be determined is his subjective intent or purpose. It can be gathered or inferred from all the circumstances in the absence of direct evidence from him either as recorded in the Deed of Gift, where he did not record any relevant intention, or from what he has said on other occasions.
"52. Nonetheless, his actual purpose has to be determined and it is not sufficient simply to look at the result, although subsequent events may be material. The intent does not have to be shown to be dishonest or fraudulent nor to have any other such qualification attached to it. It simply has to be proved to be a substantial purpose of the transaction.
"53. The person who the donor must have in mind as the object of his relevant purpose is a person who may at some time make a claim against him. At the time of the gift the person need not be a creditor or actually identifiable but no doubt the more remote such a person is from the circumstances existing at the time of the gift, the less likely it is that claimants will be able to establish the requisite purpose in the donee."
"I am influenced in my decision by these considerations. Firstly, Mr George Akrill was ill and having to go into a care home for an indefinite period. Secondly, there was knowledge in the family generally that a person's resources, capital resources, including their home, are called upon to pay care home fees. Thirdly, Mr Akrill had never before made legal documents but in contemplation of going into a care home, not knowing how long he would have to be there, he made five of these documents within three weeks of going into The Grange. Unfortunately there is no revealed explanation that stands scrutiny of why there should at that time have been a gift of the house to his children when at the same time he was making a Will that left the whole estate to them equally, other than to achieve some other purpose than simply making the gift, particularly since the arrangement formally was that there was a Lease-back so that in no circumstances that anyone considered would the house be sold whilst he was still alive. Fifthly, he was not a sophisticated man used to legal dealings but had a number of meetings with his solicitor during the course of which in the relevant few weeks the proposed transactions were no doubt explained to him and his instructions taken. I don't think that from his family's knowledge he would be ignorant of and not have in mind that his house could be used if necessary to fund care fees if it was available to do so and his stay in The Grange was prolonged.
"62. Overall, I find that a real and substantial purpose of making the gift of the home to his children as and when he did was to put the house beyond the reach of people who, in the future, might make a claim against him in respect of the costs of his residential care. I find that he anticipated that those costs would be incurred on a continuing basis for an indefinite period, even though he may have harboured some hope of returning to what had been his own home and that those costs would be incurred to the homeowners for the time being and he knew that at some stage the local authority might have to become involved in providing finance if he himself had not got the means. I infer that a substantial reason for the gift was to protect the house for that purpose. It is a very common, understandable and in no way morally reprehensible reason, but a clear purpose nonetheless.
"63. Once that finding is made, I do not think it is difficult to fit both these claimants into the position of victim within the meaning of section 423, Sub-section 5, as persons who are capable of being prejudiced by the gift. Both were, in the passage of time, likely to become involved in being owed money in respect of care home fees that they would look to Mr Akrill to pay if he had the means and his means had been diminished by the gift. It will be plain to those in court that I have not found it easy to come to the conclusion that I have expressed above."
"Where the financial circumstances of a Resident change, the Derbyshire County Council's net contribution could vary."
"1. The Judge ignored and did not take account of the Appellants' Defence to the 1st Claimant's Claims on public law grounds."
Order: Appeal allowed on one ground only