OAP wins landmark free care case

A landmark ruling on free personal care could pave the way for scores of other legal cases where elderly people may have been overcharged by local authorities.

David Boath, 95, took legal action against Perth and Kinross Council, arguing that legislation introducing the flagship policy meant that he and his wife Janet should not have been charged for some of the care they received.

He sought £3081 plus interest for payments made for assistance with preparation of food, laundry charges, housework and meals on wheels.

At the Court of Session in Edinburgh, Lord Kinclaven said that although the council could charge for providing meals on wheels, it could not charge for the food preparation element of the service.

Douglas McLellan, a policy advisor in local government and health for Age Concern and Help the Aged in Scotland, said: “Lord Kinclaven has opened the door for older people and their families across Scotland to reclaim the food preparation charges that local authorities have levied against them.

“We now call upon Perth and Kinross Council, as well as all the other local authorities that have yet to reimburse older people and their families to do so without delay. We also call upon local authorities to immediately revise their charges for meals on wheels.”

Mr Boath’s lawyers argued that he required assistance with all aspects of living following a stroke in July 2000 and the council had arranged for him to have home help seven days a week and meals on wheels three days a week.

Mrs Boath, who died in January 2004, suffered from Parkinson’s Disease and was incontinent. From 2000 she was assessed as needing meals on wheels, day care and assistance with personal care, housework and laundry.

Under the Community Care and Health (Scotland) Act 2002 – which makes provision for the delivery of free nursing care and free personal care to those aged over 65 – Mr Boath argued some services provided between July 1, 2002 and June 15, 2003, should have been free.

Perth and Kinross Council said it had relied on guidance from the former Scottish Executive that assisting with food preparation was not included in free social care, but this advice had been changed in September 2004. The council agreed to repay £1338 for meal preparation.

The local authority maintained that meals on wheels was a chargeable service but Mr Boath’s lawyers said that this was “equivalent of payments for assistance with preparation of food and did not include the cost of food”.

Lord Kinclaven said: “I agree with the pursuer that the provision of meals on wheels to the petitioner and his wife includes an element of assisting with the preparation of food’ and that the defenders should strip out’ that element. To that extent, the pursuer’s argument prevails.”

In his ruling, the judge found that laundry services provided to Mrs Boath as a result of her incontinence should have been free, but charges could be made for other laundry and housework carried out for the couple.

Clare Macpherson, partner at Thorntons solicitors, which acted for Mr Boath, said: “The money involved in this case was a small amount however Mr Boath’s family were driven on the point of principal.”

A spokesman for Perth & Kinross Council said: “The council will require further time to consider carefully the judgment.”

A hearing has been set for Friday to allow the two sides to resolve how much of the meals on wheels charges is attributable to food preparation.

An independent review by Lord Sutherland last year found that eight local authorities were still charging for food preparation. The Scottish Government has since introduced an amendment to the Act which specifies tasks which are classed as food preparation and are not chargeable.