ARGYLL AND BUTE COUNCIL v JOSEPHINE CLARE LINZEE GORDON [2016] ScotSC 0 (10 February 2016)

ARGYLL AND BUTE COUNCIL v JOSEPHINE CLARE LINZEE GORDON [2016] ScotSC 0 (10 February 2016)

Section 21 of the 1983 Act does not confer on local authorities the power to make binding determinations of liability against transferees; it sets out factual conditions for liability, which are to be determined by the court. The sheriff court is competent to determine whether those conditions are met, and the matter should proceed to proof. The pursuer’s preliminary plea is therefore repelled.

Citation
[2016] ScotSC 0
Parties
Pursuer: Argyll and Bute Council; Defender: Josephine Clare Linzee Gordon
Jurisdiction
Scotland
Judgment Date
10 February 2016
Procedural Posture
Civil / Interlocutory Judgment on Relevancy of Defence; Preliminary Plea Repelled, Proof Allowed
Outcome
Pursuer’s preliminary plea repelled; proof allowed; procedural hearing assigned.
Legal Topics
Recovery of Care Accommodation Charges, Gratuitous Alienation, Statutory Interpretation, Liability of Transferees, Judicial Review Vs. Ordinary Action
Social Care Law Local Government Law Property Law Recovery of Care Accommodation Charges Gratuitous Alienation Statutory Interpretation Liability of Transferees Judicial Review Vs. Ordinary Action

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Parties

Argyll and Bute Council

Pursuer

Josephine Clare Linzee Gordon

Defender

Procedural Posture

Civil / Interlocutory Judgment on Relevancy of Defence; Preliminary Plea Repelled, Proof Allowed

Legal Issues

  1. 1 Does section 21 of the Health and Social Services and Social Security Adjudications Act 1983 confer on a local authority the power to make a binding determination of liability on a transferee?
  2. 2 Is the only means of challenging such liability judicial review, or can the sheriff court determine the factual basis for liability under section 21?
  3. 3 Are the statutory regimes under section 21 of the 1983 Act and section 22 of the National Assistance Act 1948 part of a single unitary scheme?

Ratio Decidendi

Section 21 of the 1983 Act does not confer on local authorities the power to make binding determinations of liability against transferees; it sets out factual conditions for liability, which are to be determined by the court. The sheriff court is competent to determine whether those conditions are met, and the matter should proceed to proof. The pursuer’s preliminary plea is therefore repelled.

Court Disposition

Pursuer’s preliminary plea repelled; proof allowed; procedural hearing assigned.

Orders

  • Repels the pursuer’s second plea in law.
  • Allows parties a proof of their respective averments on dates to be fixed.