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Personal care 'not always free' Personal care 'not always free'
(about 4 hours later)
A judge has ruled the law on free personal care does not always require Scottish councils to foot the bill.A judge has ruled the law on free personal care does not always require Scottish councils to foot the bill.
Lord Macphail has decided local authorities are only obliged to meet the costs of care provided by them. Lord Macphail found local authorities were only obliged to meet the costs of care which they provide.
He overturned a decision by an ombudsman to award backpayments to a family of an elderly man from Helensburgh, in West Dunbartonshire. He said the public service ombudsman was wrong to rule Argyll and Bute Council was legally obliged to pay for the personal care of an elderly man.
Lord Macphail, at the Court of Session in Edinburgh, said he reached his conclusion with reluctance. He said he reached his conclusion with reluctance and expressed disappointment ministers failed to make submissions.
He expressed "disappointment" that Scottish ministers had declined to make representations. Argyll and Bute Council had gone to court for a judicial review after the Scottish Public Services Ombudsman (SPSO) upheld a complaint against them by the family of William McLachlan, 90, from Helensburgh.
The Scottish Public Services Ombudsman had called on Argyll and Bute Council to award back payments to the family of 90-year-old William McLachlan. Lord Macphail's opinion is detailed and deals with what he recognises is an unusually complex legislative area Eric DrakeDirector of investigations, SPSO class="" href="/1/hi/scotland/7049520.stm">Pensioners 'let down'
Allocation spent Mr McLachlan was eligible for free personal care but the local authority said a lack of money meant it was not able to fund that care between February and June 2006.
His wife, who was his principal carer, applied for funds to assist with costs before arranging his place within a home. The ombudsman called on the local authority to make back payments.
The council said Mr A was eligible but would not receive any funds as its allocation had already been spent. Lawyers for Argyll and Bute Council argued that the legislation only applied where the local authority itself was providing the accommodation or had secured the services.
Argyll and Bute Council sought judicial review.
After considering the Community Care and Health (Scotland) Act, Lord Macphail said: "It is not possible to interpret it as obliging a local authority to make payments for social care which is not provided by them."After considering the Community Care and Health (Scotland) Act, Lord Macphail said: "It is not possible to interpret it as obliging a local authority to make payments for social care which is not provided by them."
Lord MacPhail's decision ... is deeply concerning Mary Scanlon MSPTory health spokeswoman
Lord Macphail said the matter was one of "great public interest which affects very many people".Lord Macphail said the matter was one of "great public interest which affects very many people".
And he said a submission on behalf of ministers would have been of "invaluable assistance" to the court in reaching its decision. Care homes
He added: "I can only record my disappointment that such assistance has not been afforded to the court." He said a submission on behalf of ministers would have been of "invaluable assistance" to the court in reaching its decision.
Mr McLachlan's son, also called William McLachlan, had complained to the ombudsman after the council failed to provide funding for the free personal care of his elderly father. The judge said that Mr McLachlan's care had been arranged by his family, which had considered different care homes before placing him in one.
Lawyers for Argyll and Bute Council argued that the legislation only applied where the local authority itself was providing the accommodation or had secured the services. READ THE SUMMARY OF OPINION class="" href="http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/17_10_07_judicialreview.pdf">Judicial Review of a decision of the Scottish Public Services Ombudsman [88KB] Most computers will open this document automatically, but you may need Adobe Reader href="http://www.adobe.com/products/acrobat/readstep2.html">Download the reader here
Casts doubt He added that this was done without seeking or obtaining the approval of the council and pointed out that the family met the care home fees.
Tory health spokeswoman Mary Scanlon MSP said: "My understanding of the act is that anyone assessed as being in need of free personal care is entitled to be funded for that care, irrespective of it being in their own home or in a care home - council-run or independently-run. "The council did not arrange Mr McLachlan Snr's placement, there was no contract between the care home and the council," he said.
"Lord MacPhail's decision that it was not possible to interpret the legislation as obliging a local authority to make payments for personal care which was not provided by them is deeply concerning. "On that short ground alone I consider that the ombudsman's decision that the act placed on the council a statutory duty to provide funding to him is incorrect."
"It also casts doubt on whether councils are obliged to pay for care in the independent sector." Eric Drake, the director of investigations at the Scottish Public Services Ombudsman, said the judge's opinion highlighted the importance of reviewing the policy of free personal care.
She added: "If the SNP government had cooperated with the court by advising counsel to appear, this may have been clarified." He said: "Lord Macphail's opinion is detailed and deals with what he recognises is an unusually complex legislative area."
Argyll and Bute Council welcomed the judge's findings.
A spokeswoman for the authority said: "The decision by Lord Macphail is lengthy and the council is now taking time to consider the findings fully."
The health secretary Nicola Sturgeon said lawyers had not been sent to court because Scottish ministers were not a party in the case.
"It would therefore be highly unusual to be represented in a case on which they were not direct participants," she said.