R (ZYN) v Walsall Metropolitan Borough Council

Summary: In this judicial review application, Leggatt J was asked to decide whether the coming into force of the Mental Capacity Act 2005 had altered the way in which funds received from personal injury awards and held by deputies should be treated for the assessment of capital resources when local authorities consider charging for domiciliary services.

The argument centred around the fact that in the labyrinth of regulations and guidance, it was a requirement for capital to be disregarded that the capital must be administered on behalf of P by the Court of Protection.

The local authority argued that the relevant regulations (the Income Support (General) Regulations 1987 (as amended)) referred to the Court of Protection as it existed before the Mental Capacity Act and, therefore, did not refer to the Court of Protection as it now exists. Further, the local authority argued that a deputy administers the capital on behalf of P and it is not administered by the Court of Protection whereas under the previous law the receiver acted as agent of the Court of Protection.

Both these arguments were rejected. In the result, Leggatt J found that the coming into force of the Mental Capacity Act 2005 had made no change to the way in which capital deriving from a personal injury award and administered by the Court of Protection is to be treated (that is to say, disregarded). He noted, in particular that the suggestion that Parliament may when bringing into for the 2005 Act simply have overlooked the reference to the Court of Protection in the relevant paragraph (44) of the Regulations. Leggatt J noted that:

"65. That suggestion might have force if ascertaining the intention of Parliament involved a sociological inquiry into what was actually in the minds of individual legislators. However, that would be to mistake the nature of the interpreter's task. When courts identify the intention of Parliament, they do so assuming Parliament to be a rational and informed body pursuing the identifiable purposes of the legislation it enacts in a coherent and principled manner. That assumption shows appropriate respect for Parliament, enables Parliament most effectively to achieve its purposes and promotes the integrity of the law. In essence, the courts interpret the language of a statute or statutory instrument as having the meaning which best explains why a rational and informed legislature would have acted as Parliament has. Attributing to Parliament an error or oversight is therefore an interpretation to be adopted only as a last resort.

66. In the absence of any compelling indication to the contrary, it must therefore be assumed that when the 2005 Act was brought into force Parliament left paragraph 44 unchanged advisedly. That could only be because Parliament was proceeding on the basis that the term "Court of Protection" in paragraph 44 remained apposite when the office of the Supreme Court with that name ceased to exist and was replaced by the new Court of Protection. In these circumstances, any ambiguity in paragraph 44 should be resolved by construing it in a way which accords with Parliament's presumed understanding of its meaning and which treats it as having current effect rather than as an empty legacy of an earlier regime which has been left uselessly on the statute book."

Comment: The result is unsurprising. Parliament is very unlikely to have intended, by a side wind, to alter the basis upon which such capital is treated by the reforms to the law introduced by the Mental Capacity Act 2005. The judgment is useful, however, for a resumé of the labyrinth of the guidance and the regulations.