The free care scheme set up by the previous Scottish Executive suffers a significant setback as Lord Macphail handed down a ruling declaring that councils had no obligation to cover costs of pensioners who had made their own care arrangements.
The Scotsman reports :
HAMISH MACDONELL AND JOHN ROBERTSON
SCOTLAND'S flagship free care scheme for the elderly was in turmoil last night after a judge ruled that it was wrong for councils to pay the care costs of thousands of pensioners in private nursing homes.
In a landmark judgment at the Court of Session, Lord Macphail declared that councils did not have to cover the costs of pensioners who had made their own care arrangements in such homes.
According to official figures, there are 9,100 of these so-called self-funders in private care homes, each receiving £145 a week from their local council towards personal care costs - at a cost to the taxpayer of £68 million a year.
Lord Macphail also delivered a sharp rebuke to Scottish Government ministers, revealing that he had asked them to come to the court and explain how they felt the free care legislation should work, but they had refused to do so.
This is the latest in a series of blows to the Scottish Government's vaunted free care for the elderly policy, which was originally costed at £125 million a year. It now costs £259 million and is likely to keep rising.
Since it was introduced in 2002, there have been numerous problems, particularly because of the way different councils interpreted the law. Some charged for food payments that should have been free and one council, Dumfries and Galloway, was reported to the police by a pensioner after it did not refund the food payments immediately.
Many councils introduced waiting lists for pensioners, first for their assessments and then for the payments - with some having to wait six weeks or more for their money, even after they had qualified for the payments.
However, Lord Macphail's judgment represents potentially the most serious attack on the flagship policy and last night it sent shockwaves through Holyrood and Scotland's town halls.
Experts said they did not expect any local authorities to withdraw funding for pensioners already in private care, but there were concerns some councils might use the judgment to delay payments for new cases unless the loophole in the law was closed immediately.
Nicola Sturgeon, the health secretary, refused to accept there was any need for emergency legislation to change the law and even insisted that the ruling did not have "any implications for the current operation of the policy". She said the ruling simply confirmed the proper workings of the policy.
She also defended the refusal to appear before the judge, saying: "Scottish ministers were not a party in this case. It would, therefore, be highly unusual to be represented in a case on which they were not direct participants."
But Ms Sturgeon's interpretationwas not shared by her political opponents or those involved in the case. Eric Drake, of the Scottish Public Services Ombudsman, said ministers and the parliament had to review the legislation again.
Mary Scanlon, for the Conservatives, said the judgment cast doubt on whether councils had to pay for anyone in private care homes, and she criticised the refusal to appear before the judicial review.
Wendy Alexander, Labour's leader in Scotland, said: "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."
Ross Finnie, for the Liberal Democrats, 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."
The elderly-care legislation was designed to introduce free personal care for all pensioners, regardless of income. Instead, according to Lord Macphail, the "unusually complex" and "ambiguous" legislation did not do that.
It only provided councils with an obligation to cover the care costs of pensioners in their own homes, in state-run homes or of pensioners in private care homes who have gone there on the council's authority. It did not cover elderly people in private homes whose care was arranged by their families.
Lord Macphail's judgment makes it clear he believes the original legislation was badly drafted and confusing and that there is a big gap between what ministers intended and what they delivered. The judgment came in response to a long-running battle involving Argyll and Bute Council and the Public Services Ombudsman.
The judge knew the implications of his judgment, saying: "I am acutely aware that my decision means that since the coming into effect of the new regime on 1 July, 2002, there has been a widespread misapprehension as to the meaning and effect of the legislation on the part not only of local authorities but also of the Scottish Executive and of persons over 65 in private care homes and their families."
Argyll and Bute Council welcomed the finding, while Pat Watters, president of the local authority umbrella group COSLA, said its view was "that the courts cannot resolve this issue - 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."
Paul Edie, convener of the health and social care committee of City of Edinburgh Council, said last night: "This may have far-reaching implications and we will be examining these with care."
Dismay over bombshell judgment on 'badly drafted' law
BILLY McLachlan, who has been fighting Argyll and Bute Council for more than a year for money to cover his father's care costs, said yesterday he was disappointed by Lord Macphail's ruling.
In late 2005, his father, William McLachlan, 90, was assessed by the council as requiring residential care and, after looking at a number of private homes, his family arranged for him to go into the home of their choice.
He was a "self-funder", someone whose fees were paid by himself or by his relatives.
Billy McLachlan applied to the council for the £145 a week available under the Scottish Government's policy of free personal care for the elderly. Initially, the council said its budget from the government for personal care was exhausted, and William McLachlan would be put on a waiting list.
When more funds became available, the payments began. William McLachlan died in April this year.
His son complained to the Scottish public-services ombudsman that the council had failed to provide personal care funding while his father was on the waiting list, between February and June 2006.
The ombudsman, Professor Alice Brown, upheld the complaint and said that, in her opinion, the council had been obliged under the Community Care and Health (Scotland) Act 2002 to provide the funding for Mr McLachlan's personal care.
Argyll and Bute Council sought a judicial review of the ruling and the case was heard by Lord Macphail in the Court of Session in Edinburgh.
It was on the third day of the hearing that the council put forward the argument which Lord Macphail ultimately accepted, that the ombudsman had misinterpreted the 2002 act as imposing on councils a positive obligation to pay for personal care. The family selected a care home without seeking or obtaining the approval of the council and met the care-home fees. It was an entirely private arrangement with which the council was not at all concerned.
Lord Macphail said: "I consider that the ombudsman's decision that the act placed on the council a statutory duty to provide funding to him is incorrect."
Mr McLachlan said: "I am disappointed in the way the decision has gone. But what the judge has done is say that the act has been very badly drafted.
"The net result is that it is now a matter for the parliament and the Executive to sort out. The judge has looked at the law and said the law does not say what the Executive believes it says."
Mr McLachlan said he had believed, that universal free care for the elderly applied to everybody "regardless of where they were, in the care of a local authority home or in a private home".
He added: "This seems to be an administrative cock-up by the government. The law doesn't meet the intentions of the parliament ."
Q & A: WHAT YOU NEED TO KNOW
What does free personal care mean?
It means that the Scottish Government will cover the costs of care for all those aged 65 and over.
There used to be confusion over what was deemed nursing care (which was paid for by the government) and what was deemed to be personal care (which wasn't covered by the government). To end the confusion the previous Executive decided that nursing and personal care costs would be covered by Holyrood.
Who is eligible to receive free care?
Anyone aged 65 or over in need of personal and nursing care.
Pensioners are entitled to £145 each week in personal care costs as well as £65 in nursing care costs.
These are then paid directly to the care provider by the local council's social work service.
Are there any other costs to pay?
Yes, many pensioners in care homes are expected to contribute towards the remaining cost of their care: basically accommodation, food and laundry depending on their financial situation.
These are the so-called "hotel" costs - the living expenses of staying in a care home. They are paid by pensioners with capital assets and savings of £19,500 or more.
Why has the policy been controversial in UK terms?
The introduction of free care north of the Border created a fundamental difference between Scotland and England. English pensioners had to pay for their care costs while Scottish pensioners did not.
Why has the policy been controversial in Scottish terms?
The implementation of the policy has not been uniform across the country.
For instance, some local authorities charged for food preparation while others did not; some charged for assistance with medication while others did not.
There have also been problems with waiting lists, with councils running out of money before being able to cover all the costs of all their eligible pensioners.
What is the basis of this latest row?
Argyll and Bute Council refused to cover the care costs of a pensioner, William McLachlan, even after admitting he was entitled to receive free care. His family appealed to the Scottish Public Services Ombudsman, which ruled against the council. The council then went to judicial review, the results of which were announced in a judgment by Lord Macphail yesterday.
What was Lord Macphail's decision?
He ruled that the council was right not to pay for Mr McLachlan's care costs because the council had not played any part in securing Mr McLachlan's care.
The judge said that councils had an obligation to pay for the care of those they secured in care (whether in council homes or not) but did not have an obligation to pay for the care costs of pensioners who secured their own care arrangements without liaising with the council.
He said this was an "ambiguous" and "unusually complex" piece of legislation.
What are the implications of his decision?
In theory, councils could use the judgment to stop payments for all "self funders" - pensioners who arranged their own care in private care homes and who now get help with the bills from the council.
In practice, this is unlikely to happen because councils know the intent behind the law and have paid these bills until now.
There is, though, a danger that future payments for new pensioners might be delayed by councils using the judgment as an excuse to hold off payments.
What has been the Scottish Government's response?
Ministers insist the judgment does not change anything, arguing that every pensioner who gets free care for the elderly enters into a contract with their local authority and this involves the council "securing" a place for the pensioner.
In this way, ministers claim, the judgment merely reinforces the current practice of local authorities paying for all pensioners in all homes.
"No longer will someone in a nursing home have to pay for the same nursing care that would be received free in hospital or at home.
"We will ensure nursing care is finally free for all who need it- free at home, free in hospital and, for the first time, free in nursing homes."
"I have concluded it is not possible to interpret (the law) as obliging a local authority to make payments for social care which is not provided by them.
"Since 2002, there has been a widespread misapprehension as to the legislation on the part of local authorities, the Executive and persons over 65 and their families."