View source for ICLR Aster Healthcare Ltd v The Estate of Mohammed Shafi (2014) EWHC 77 (QB), (2014) MHLO 133

''PERSON UNDER DISABILITY — Necessary goods or services — Payment — Care home fees — Incapable person residing in care home under arrangement probably made with local authority exercising statutory duty — Care home claiming outstanding fees from incapable person’s estate — Whether estate liable to claimant for fees — Mental Capacity Act 2005, s 7''

'''Aster Healthcare Ltd v Shafi (Representative of the estate of Mohammed Shafi, decd)'''

'''[2014] EWHC 77 (QB);  [2014] WLR (D)  42'''

'''QBD:  Andrews J:  24 January 2014'''

Section 7 of the Mental Capacity Act 2005, which provided for payments for services by a person who lacked capacity, was not and could not be engaged where the services in question were provided to the mentally incapacitated individual under an arrangement made by the service provider with a local authority exercising its statutory duty under Pt III of the National Assistance Act 1948.

Andrews J, sitting in the Queen’s Bench Division, so held in allowing an appeal by the defendant, the estate of Mohammed Shafi, against a decision of Judge Milton in the Willesden County Court granting the claimant, Aster Healthcare Ltd, summary judgment in its claim against the defendant for outstanding care home fees.

The claimant ran a care home. Mr Shafi, was suffering from dementia and was referred to the home by his local authority, Brent London Borough Council. Fees accrued in respect of his care and a dispute arose as to who was legally liable to pay. Judge Milton held that there was an unanswerable claim under section 7 of the Mental Capacity Act 2005, that there was no prospect of the local authority having the primary responsibility to pay and that the estate was liable. The judge granted the claimant summary judgment. The defendant appealed.

'''ANDREWS J''' said that section 7 of the 2005 Act was intended to, and did enact, the common law rule. It was designed to cure the hardship that would otherwise arise where a supplier who intended the person under a mental incapacity to pay for necessary goods or services would be unable to recover payment from him under a contract, if there was one. The section could not be engaged where the services in question were being provided to the mentally incapacitated person under an arrangement made by the service provider with a local authority exercising its statutory duty under Part III of the National Assistance Act 1948. Even if an arrangement was in place under section 26(3A) of the 1948 Act, which allowed a local authority, the service provider and the individual to enter into an arrangement where it was agreed that the individual would pay his share of the fees directly to the care home, it was not intended that the individual would be indebted to the service provider for those services. The debt, if any, was owed by the individual, or his estate, to the local authority. Accordingly, the judge fell into error, the defendant’s appeal was allowed and the order for summary judgment was set aside.

'''Appearances:''' John Brennan (instructed by Harrison Clark LLP) for the claimant; Peter Knox QC and Asela Wijeyaratne (instructed by Linklaw Solicitors) for the defendant.

'''Reported by:''' Sarah Addenbrooke, Barrister.

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