Tackling funeral poverty

“A new report on funeral poverty has found funeral director and local authority costs should be more consistent and bereavement support more widely available.

The report by John Birrell, chair of the Scottish Working Group on Funeral Poverty, and Citizens Advice Scotland, highlighted factors that contribute to funeral poverty and called on the UK and Scottish Governments, the funeral industry, local authorities and others, to take action.

The independent report’s recommendations include:

• Ensuring social security funeral payments meet the real costs of a funeral
• Parity in burial and cremation charges charged by local authorities
• Licensing of funeral directors
• Encouraging people to talk about their own funeral wishes with their families
• A new national ‘Scottish Funeral Bond’ to standardise costs and allow more people to save for their own funeral”

More on this can be found here.

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‘Cremation Act 1902′ used to prevent the opening of a second Borders crematoria

“Plans to open a £2m crematorium in the Borders have been put on hold after a nearby objector threatened to invoke a 112-year-old law.

Dr Fraser Quin’s house lies within 200 yards of the chimney stack of the Houndwood Church site.

The 1902 Cremation Act states that a crematorium must have written approval of property owners within that range.”

The full Act can be found here.

The report from the BBC news website can be found here.

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ZYN, R v Walsall Metropolitan Borough Council [2014] EWHC 1918 (Admin) – personal injury compensation fund must be disregarded in means-testing

The England and Wales High Court has ruled that a local authority was acting unlawfully in deciding that an individual’s access to a large personal injury compensation fund required her to pay the full cost of her care services.

This is from the case report:

“The claimant, whom I will refer to as “ZYN”, is severely disabled. She has a need for community care services, part of which is provided by the defendant local authority (“the Council”).”

“The issue raised by this case is whether capital derived from a personal injury settlement which is managed by a deputy appointed by the Court of Protection must be disregarded by a local authority when deciding whether the injured person can be required to contribute to the cost of care services which he or she receives.”

“It is common ground that all the capital derived from ZYN’s personal injury settlement falls within paragraph 44(2)(a) of Schedule 10 to the Income Support Regulations, being “an award of damages for a personal injury” to ZYN. It is her case that this capital is to be disregarded because it also falls within paragraph 44(1)(a) and/or (b), being capital (a) which is administered on behalf of ZYN by the Court of Protection and/or (b) which can only be disposed of by order or direction of the Court of Protection.”

“In my view, the only interpretation of paragraph 44(1)(b) which makes rational sense is an interpretation which treats the whole of the capital of ZYN as falling within its scope even after an order has been made which permits a deputy to withdraw a sum of money either for a particular purpose or for the general use and benefit of ZYN. There is no difficulty as a matter of language in saying that, until the money is actually spent, it remains part of a fund which can only be disposed of by an order or direction of the court: it does not cease to be part of such a fund simply because the court has made the requisite order. Moreover, for the reasons indicated, an interpretation which treats a sum as falling outside the scope of the provision when an order permitting disposal is made just because no further order of the court is now needed leads to absurd consequences and is not in my view a result which any rational legislator could have intended.”

“I therefore conclude that the whole of the capital of ZYN falls within paragraph 44(1)(b) of Schedule 10 to the Income Support Regulations.”

The full case report can be found here.

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Walford, R (On the Application Of) v Worchestershire County Council [2014] EWHC 234 – care fees and the family home

The England and Wales High Court has stopped a local authority selling an elderly lady’s house to pay for her care fees, because her daughter kept a room in the house and had invested in maintaining it while living elsewhere.

This is from a report of the case from STEP:

“After a long correspondence the case eventually came to court in January. The court’s decision turned on the exact wording of paragraph 2(1)(b)(ii) of Schedule 4 of the National Assistance (Assessment of Resources) Regulations 1992 and whether Glen Walford’s relationship with Sunnydene fell within it. The relevant passage states that the value of any premises is to be disregarded for a residential care fees assessment if it is ‘occupied in whole or in part as their home by the resident’s other family member or relative who is aged 60 or over’. This test is further qualified by Section 7 of the CRAG [Charging for Residential Accommodation Guidance] rules.

Surprisingly, this is the first occasion that this particular issue has come before the courts. In the event, Mr Justice Supperstone, ruled that Worchestershire had applied the test incorrectly by looking at actual occupation or permanent residence at the time of Mary Walford’s admission into care. It had also not properly considered the submissions made by Glen Walford regarding her long-term relationship to the property, to which she ‘has a degree of attachment both physical and emotional’. He duly quashed the council’s decision to impose a charge on Sunnydene, and ordered it to reconsider its assessment.”

This decision is also important for us here in Scotland as similar rules apply.   Guidance on these rules from the Scottish Government can be found here.

More on this from STEP can be found here and the full case report can be found here.

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JO v GO & Ors [2013] EWHC 3932 (COP) – habitual residence and jurisdiction

A daughter’s decision to move her 88-year-old mother from England into a Scottish care home gave rise to a complex dispute between her children about the jurisdiction of England’s Court of Protection and our Sheriff Court and also a judicial analysis of the meaning of habitual residence in the light of the 2000 Hague Convention on the International Protection of Adults.

It was agreed between the parties that the mother did not have capacity to decide where to live.

Two statements stand out in the decision:

“Habitual residence is, in essence, a question of fact to be determined having regard to all the circumstances of the particular case.  Habitual residence can in principle be lost and another habitual residence acquired on the same day: … “

“In the case of an adult who lacks the capacity to decide where to live, the habitual residence can in principle be lost and another habitual residence acquired without the need for any court order or other formal process, such as the appointment of an attorney or deputy.”

The court found that the mother was not “habitually resident” in England and Wales and therefore in favour of the jurisdiction of the Sheriff Court.

The full judgement can be found here.

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Appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 by the Trustees of the late Mrs Hilda Pilkington, 3 September 2013 – Significance to be attached to an emerging local plan when making planning decisions

Outer House case in which property developers sought to appeal a decision of a reporter appointed by the Scottish Ministers. The reporter had refused an appeal by the developer of Perth & Kinross Council’s decision to reject a planning application for a mixed use development (initially including 1800 and latterly 1500 houses) adjacent to Huntingtower and Ruthvenfield in Perthshire.

The developers’ challenge was based on grounds of irrationality in various forms but also raised the issue of the significance to be attached to an emerging local plan as a material consideration when making planning decisions.

The Perth area local plan (adopted in March 1996) included the developers’ site as a long-term development site. However, the Council refused permission for the development on 4 January 2012 on the basis that it did not comply fully with the development plan. On 10 January a decision was made to amend a new and emerging development plan (not yet adopted) so as to remove the developer’s site from the proposed housing allocation. As a result, the emerging local plan, which was published in January 2012, did not include the developers’ site within the housing allocation.

On 12 September 2012 the Scottish Minister’s reporter refused the developer’s appeal of the Council’s refusal of planning permission. The reporter found that the emerging local development plan was a material consideration and the conflict between it and the developer’s application was sufficient to justify refusing the permission (and thus departing from the adopted existing local plan).  The developer argued (amongst other things) that the reporter had been wrong to do so and also that the decision to remove the developers’ site from the housing allocation in the emerging plan (on 10 January 2013) was simply a consequence of the Council’s rejection of the developers’ planning application (on 4 January).

Lord Glennie refused the appeal. The reporter had been entitled to consider whether the emerging local development plan was a material consideration. The developer’s site was of a scale and importance such as to make it of major significance in the development of West/North West Perth. That being so, the fact of the emergence of the local development plan was a material consideration. In such circumstances, while recognising the statutory priority given to the plan-led planning process (i.e. the existing development plan), it was legitimate, when assessing the weight to be afforded to that consideration, to take into account the benefits to the public interest of the wider planning framework of the statutory local development plan process. The reporter found these factors to be of sufficient weight to outweigh the provisions of the existing development plan and her decision had made it clear that she had approached the issue in that way.

Lord Glennie also noted that the reasons for removing the developers’ site from the emerging local development plan (other than the simple refusal of the developer’s application on 4 January) had been before the reporter and that her reference to them had made it clear she had taken account of them.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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The Firm of Archid for Judicial Review of a purported decision of Dundee City Council, 20th August 2013 – Effect of planning decision notice granted in error

Outer house case concerning a planning application made by Archid in October 2009 to convert an office on Thomson Street in Dundee into a residential building.

Archid received a notice dated 1 December 2009 advising that Dundee City Council had granted planning permission for their development on 26 November 2009. The notice also contained the reasons for the decision and, although the notice purported to grant the permission, the reasons appeared to be justifications for a refusal of permission. Archid then applied for and were granted (on 18 March 2010) a building warrant in connection with the works.

However, on 11 May 2011, Archid received a second notice (also dated 1 December 2009) from the Council advising that planning permission for the works had in fact been refused on 26 November 2009 and that an incorrect decision notice had been issued[1]. The covering letter also stated that the Council’s Enforcement Officer had visited the site, asked that all works cease and that the site be restored to its original condition.

Archid sought judicial review. They argued that, having issued their original decision notice, the Council could not thereafter just ignore it and issue a new decision letter refusing the permission. Until the planning permission was revoked or modified in accordance with the statutory procedure[2] (which provides protection for the applicant in respect of work already carried out and provides a separate review process[3]) or reduced by an order of the court, the permission stood.

The Council argued that the person within the planning department who sent out the first notice had had no authority to do so. His authority extended only to giving notice of decisions taken to grant or refuse planning permission. The decision taken by the Council was to refuse permission. In those circumstances he had no authority to give notice that permission had been granted. It followed, they contended, that the first notice was simply a nullity and could be ignored.

Lord Glennie took the view that the presumption expressed by the maxim omnia praesumuntur rite esse acta (“all things are presumed to have been done duly and in the usual manner”) was applicable with the consequence that the first notice was presumed to be validly made and to have legal effect unless and until reduced following a court process.

 “An interested member of the public should be able to rely upon a notice issued by a public authority as having been issued correctly and with the appropriate authority; that is all the more pertinent in the case of a document granting planning permission, since the grant of planning permission runs with the land, and may be relied on by persons who were not party to the original application or privy to any correspondence or telephone communications passing between the applicant and the authority.”

The validity of the second notice depended on the status of the first notice (at the time the second was issued). The first notice being valid, the Council could not[4] then correct it as the Council was functus (i.e. having discharged its duty, the Council could not then review its own decision.).  Also it could not simply ignore it and make another order, because then there would be two conflicting orders in respect of the one matter. Lord Glennie therefore concluded that the first notice was valid and that the second notice was ultra vires (i.e. outwith the Council’s powers) and had to be reduced.[5]

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.


[1] No attempt to withdraw the notice was made by the Council.

[2] Contained in the Town and Country Planning (Scotland) Act 1997.

[3] In particular, ss 55, 56 and 76.

[4] Subject to the statutory powers to revoke or modify contained in the 1997 Act and mentioned above.

[5] Lord Glennie also rejected the council’s preliminary plea of mora, taciturnity and acquiescence and an attempt to rectify the first notice in terms of section 8(1)(b) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

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The Cairngorm Campaign and Others v. The Cairngorms National Park Authority and Davall Developments Limited and Tulloch Homes Limited and An Camas Mor Developments LLP, 3 July 2013- planning, adoption of local plan

Inner House case in which the Cairngorms Campaign and others applied to the court for reduction of a decision by the Cairngorm National Park Authority to adopt the Cairngorm’s National Park Local Plan. In particular they complained about the adoption of development policies in the Local Plan which made provision for developments at Nethy Bridge (40 dwelling houses and business units),  Carrbridge (up to 117 dwelling houses), An Camas Mòr  (1,500 dwelling houses) and Kingussie (300 dwelling houses).

In the Outer House Lord Glennie rejected the campaigner’s arguments finding that, in adopting the Local Plan, the Park Authority had neither acted unlawfully or illegally (in the Wednesbury sense – i.e. it had not reached a decision that no reasonable person in that position properly informed of the facts could have reached) nor had it failed to give adequate reasons for its decision, the reasons given for the decision being clear. In coming to his decision, Lord Glennie also rejected a number of more specific arguments made by the campaigners.

The campaigners argued that Lord Glennie had erred in law by failing to appreciate what was necessary in terms of the  “appropriate assessment” required  under  the Conservation (Natural Habitats etc) Regulations 1994 (implementing Habitats Directive 92/43/EEC) when assessing the implications of the Local Plan on the Park’s conservation objectives. They contended that a far more detailed assessment should have been made at the point the Local Plan was approved.

This argument was rejected by the Inner House which agreed with the decision of Lord Glennie. Although referred to as an appeal, it was appropriate to consider the campaigners’ action on judicial review grounds. Taking that approach, the Park Authority’s appropriate assessment could not be said to be one which no reasonable authority would have produced in the circumstances. It was, therefore, open to the Authority to adopt a Local Plan which relied on that assessment.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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K2 Restaurants Limited v. Glasgow City Council, 8 May 2013 – Council liable when demolition works result in damage to neighbouring property

Inner House case concerning Glasgow City Council’s liability for damage caused to an Indian restaurant on the ground floor of a tenement building following the Council’s demolition of the floors above.

The Council had carried out the demolition work under s13 of the Building Scotland Act 1959 and argued that they should be free of responsibility for the collapse as, after the works had been completed, they had written to the restaurant owners indicating that future maintenance of the structure would be their responsibility. However, in the Outer House, the temporary judge had found that, whilst the Council had initially acted under the 1959 Act, after it had made the decision to demolish part of the building, a relationship had been created between them and the neighbouring proprietors that gave rise to a common law duty of care. The Council had carried out the demolition without carrying out gable stabilisation works, without which, it knew would there would be a material risk of harm to people or property in the vicinity of the wall. There was no evidence of the restaurant owners having been advised that the exposed wall lacked stability and they were entitled to assume that the Council had carried out the demolition works in a manner that did not create a new structural instability. As a result, the Council was found to be in breach of its duty.

The Inner House dismissed the Council’s appeal, finding there to be no error in the temporary judge’s decision. The duty breached was not a breach of statutory duty nor a failure of duty of care in the manner in which the Council exercised their statutory discretion to carry out the works. Rather it was a purely operational duty arising after the decision to carry out the demolition works was made: i.e. a duty not to create a reasonably foreseeable risk of harm by reason of the way in which the Council carried out the works.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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Scottish Water v Dunne Building and Civil Engineering Ltd, 8 August 2012, negligence for damage caused by roadworks and the balance of proof

Sheriff Court case relating to the blockage of a sewer on Queen Anne Street in Dunfermline which Scottish Water were responsible for maintaining. A monobloc thought to be causing the blockage was discovered by Scottish Water in February 2009 after excavating and opening the pipe.  Scottish Water claimed damages from Dunne who had carried out reconstruction and resurfacing works for Fife Council in November 2007. The works had involved replacing the surface of the road and pavement with monobloc.

At first instance the sheriff found that on the balance of probabilities the blockage had been caused by the monobloc used by Dunne to resurface the road but was unable to make a finding as to how the monobloc had found its way into the sewer. As the Scottish Water had no direct evidence as to what had happened in 2007 and were not able to prove that there was no other way the block could have entered the sewer, the sheriff refused Scottish Water’s action for damages.

However, the sheriff principal allowed an appeal, finding that Scottish Water’s evidence was sufficient to raise a prima facie inference of negligence which had not been answered by Dunne. As such, damages of £12,585 were awarded to Scottish Water.

The full judgement is available from Scottish Water here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.


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