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Last Updated: Wednesday, 17 October 2007, 16:05 GMT 17:05 UK
Personal care 'not always free'
Pensioner
Lord Macphail ruled councils need only pay for care they provide
A judge has ruled the law on free personal care does not always require Scottish councils to foot the bill.

Lord Macphail found local authorities were only obliged to meet the costs of care which they provide.

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.

He said he reached his conclusion with reluctance and expressed disappointment ministers failed to make submissions.

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.

Lord Macphail's opinion is detailed and deals with what he recognises is an unusually complex legislative area
Eric Drake
Director of investigations, SPSO

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.

The ombudsman called on the local authority to make back payments.

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.

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 said the matter was one of "great public interest which affects very many people".

Care homes

He said a submission on behalf of ministers would have been of "invaluable assistance" to the court in reaching its decision.

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.

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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.

"The council did not arrange Mr McLachlan Snr's placement, there was no contract between the care home and the council," he said.

"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."

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.

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.

SEE ALSO
6m 'diverted' from care budget
29 Jan 07 |  Glasgow, Lanarkshire and West
Council appeals free care ruling
20 Dec 06 |  Glasgow, Lanarkshire and West
Council ordered to pay care costs
29 Nov 06 |  Glasgow, Lanarkshire and West

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