Dear Convenor,
Comhairle convened 3rd March 2020 approved “That Comhairle suspend any ongoing action in respect of taking croft property into consideration when making financial assessments for care charges until such time as the Comhairle has considered its policy position.”
The Agnew Opinion dated 2nd April 2020 excludes Schedule 4 - CAPITAL TO BE DISREGARDED of the National Assistance (Assessment of Resources) Regulations (the 1992 Regulations, the Regs) in response to the Comhairle question framed to exclude Schedule 4 on the basis of “other than that already provided for in Schedule 4;”.
The correct interpretation of this is that Schedule 4 - CAPITAL TO BE DISREGARDED has never formed any part of the Agnew Opinion of 2nd April 2020 therefore Schedule 4 is still applicable. Comhairle convened on 6th May 2020 Item 11 3.1 (b) “notes that, in the light of that Opinion, the suspension of the assessment has accordingly been lifted.” Schedule 4 - CAPITAL TO BE DISREGARDED does not form any part of the Agnew Opinion so the Agnew Opinion can not be used to justify lifting the suspension when it specifically excludes Schedule 4 - CAPITAL TO BE DISREGARDED.
Comhairle policy approved by amendment on 3rd March 2020 is therefore competent and is extant Comhairle policy “until Comhairle has considered its policy position.”
Croft property refers to land in tenure. Land subject to decrofting and any permanent improvements acceding to the land removed from tenure is consequently no longer croft property.
The suspension can not be lifted as Schedule 4 - CAPITAL TO BE DISREGARDED which refers in Clause 18 to capital occupied in whole or in part by a third party, which is the absolute description of land in tenure, still applies as it does not form any part of the Agnew Opinion being used to justify lifting the suspension. Schedule 4 - CAPITAL TO BE DISREGARDED must be considered relevant, as the Agnew Opinion used to lift the suspension excludes Schedule 4, resulting in the suspension approved by Comhairle on 3rd March 2020 being current Comhairle policy.
It is therefore necessary for you as Convenor to confirm that Item 11 3.1 (b) presented to Comhairle on 6th May 2020 is not Comhairle policy and that the policy approved on 3rd March 2020 by amendment to “suspend taking croft property into consideration” is still current Comhairle policy. Arising from this, it is necessary for you to confirm that no actions have been taken in contravention of extant and competent Comhairle policy approved on 3rd March 2020 by amendment to “suspend taking croft property into consideration”.
Yours sincerely
Calum Mac Millan
A journal written by the SNP opposition group on the Comhairle nan Eilean Siar (Western Isles Council).
