Free Care : Judge Rejects Scottish Watchdog Ruling

Scotland’s public service ombudsman was wrong to rule that a council was legally obliged to pay for the personal care of an elderly man, a judge ruled today.

Lord Macphail backed Argyll and Bute Council in a landmark case on free personal care for the elderly.

He also rapped Scottish ministers for failing to make a submission to the court.

advertisementThe council had gone to court for a judicial review after the ombudsman had upheld a complaint against them by the family of William McLachlan.

But upholding the council’s plea that the ombudsman’s decision was wrong, Lord Macphail said the legislation did not oblige authorities to pay for care not provided by them.

After considering the Community Care and Health (Scotland) Act the judge 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”.

And he said a submission on behalf of ministers would have been of “invaluable assistance” to the court in reaching its decision.

He added: “I can only record my disappointment that such assistance has not been afforded to the court.”

It was the first time an application had been presented to the Court of Session for judicial review of a decision by the ombudsman.

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.

Mr McLachlan Snr had been placed in a nursing home by his family and while Argyll and Bute Council funded his personal care from June 28 2006, it did not backdate this to February that year, when he had been assessed as being eligible for services.

In November last year the Scottish Public Services Ombudsman ordered that the council make back payments for the four months.