Elderly 'let down' over care case

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Scottish ministers have been accused of a "dereliction of duty" after a judge issued a ruling on free personal care.

Lord Macphail found local authorities were only obliged to meet the costs of care provided by them.

Opposition parties said pensioners had been let down by the government, which did not make submissions to the court.

But Health Secretary Nicola Sturgeon defended its actions - and said the ruling would not have any implications on how the policy currently operates.

Argyll and Bute Council sought a judicial review after the Scottish Public Services Ombudsman upheld a complaint by the family of William McLachlan, from Helensburgh.

The council argued that the legislation only applied where it was providing the accommodation or had secured the care services.

Lord Macphail's decision... is deeply concerning Mary ScanlonTory health spokeswoman

Lord Macphail found in favour of the council, adding that a submission from Scottish ministers would have been of "invaluable assistance" to the court in reaching his decision.

Tory health spokeswoman Mary Scanlon said the judge's ruling was "deeply concerning".

She said her understanding of the law was "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 Conservative MSP added: "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.

"It also casts doubt on whether councils are obliged to pay for care in the independent sector."

Scottish pensioners

She also accused the Scottish Government of letting down elderly people by not sending lawyers to the court.

That criticism was echoed by Labour leader Wendy Alexander, who said: "The SNP have let down Scottish pensioners.

"Alex Salmond and his ministers couldn't find the time to defend free personal care.

"They must now explain what they will do to ensure Scottish pensioners continue to benefit from this."

"We do not believe this ruling has any implications for the current operation of the policy Nicola SturgeonHealth Secretary

Liberal Democrat health spokesman Ross Finnie also criticised the decision not to send lawyers to court.

He said: "For them to fail to answer the call of the trial judge to help with the interpretation of a parliamentary act is an astonishing dereliction of duty.

"Ministers had a chance to defend this seminal policy, but they refused to take it."

But Ms Sturgeon said: "We do not believe this ruling has any implications for the current operation of the policy.

"The ruling reflects how the policy is operating and was intended to operate - people are entitled to free personal and nursing care following a care needs assessment and once a local authority care contract is in place.

Undue delay

"This applies to people who arrange their own care and people who have their care organised by a local authority."

She said research showed that the vast majority of people were receiving free personal and nursing care support without undue delay or complication.

Ms Sturgeon added that the government had an "ongoing engagement" with the local authorities group Cosla to ensure the effective implementation of the policy.

It is a matter for politicians from the Scottish Government and local authorities to decide on the overall direction of the policy Pat WattersCosla president

She said that Scottish ministers were not a party in the case and "it would therefore be highly unusual to be represented in a case on which they were not direct participants".

Pat Watters, president of the Convention of Scottish Local Authorities, said that his organisation's view was that the courts could not resolve this issue.

He added: "It is a matter for politicians from the Scottish Government and local authorities to decide on the overall direction of the policy.

"We still need to clarify whether free personal care is a needs-based, demand-led policy or whether local authorities can make resource-based decisions about the affordability of care."

Eric Drake, director of investigations at the Scottish Public Services Ombudsman, said the judge's opinion showed the need for a review of the policy of free personal care.

He said: "We note that although he has concluded, reluctantly, that we were incorrect in our finding that the Community Care and Health (Scotland) Act 2002 placed a statutory duty on the council to meet the care costs in this case, our understanding of the effect of that act was widely shared."

He said that the ombudsman's report into Mr McLachlan's complaint would illustrate the "real and practical difficulties" encountered by some of the people free personal care was intended to help.