Free Elderly Care Row Hits Courts Over £1700 Bill

The growing row over free personal care for the elderly is to go to the courts, with a test case challenging a council over a £1700 bill for a pensioner’s meal service.
Meanwhile, a group of councils is going to the Court of Session to clarify the law.
The question of whether food preparation should be free under the Scottish Executive’s flagship policy is the focus of a stand-off between councils, clients and ministers.

Pressure on councils to seek a definitive Court of Session declarator interpreting the law has risen with the case of Mary Russell from Muirend, who has dementia. Her lawyer, Cameron Fyfe, is acting for her family in suing East Renfrewshire Council over a food preparation bill of £1721, which she paid between May 2004 and November last year when she moved into a Whitecraigs care home.

The action has been raised in Paisley Sheriff Court, and the council is to prepare its initial defence by mid-June. Mr Fyfe said several people had approached him with similar complaints. He said: “We feel that the legislation makes it quite clear that the council is responsible for the cost of these services. It may be that Mrs Russell’s case sets a precedent, which could help many others in her situation.”

Following reports in The Herald this week, it was yesterday discussed in cabinet, with Andy Kerr, health minister, expressing concern and frustration that although the policy was being resourced, it was running into problems. “There are issues with various local authorities and we are having discussions with them to try to make sure the problems being highlighted are resolved,” said an Executive spokesman.”

With consequences for the taxpayer that may top £100m, according to councils, a consortium of councils is preparing a case that would force clarification of whether they are liable for providing preparation of food for older people who are receiving care in their homes.

In the next two months, they are expected to go to the Court of Session with examples of the complex caseload of older people who have limited ability to prepare food. This is a grey area in that the assessments carried out by social work staff have to make a judgment on whether clients can make a cup of tea, heat soup or make a simple meal.

The 2002 law that brought in free personal care for the elderly states that “assistance with the preparation for food should not be charged for”. This clashes with guidance from the executive in 2002 that it could be charged. In September 2004, the executive issued guidance that said the opposite, and apologised for misleading councils.

Three months later, it said it was reconsidering that guidance, and last month – 17 months later – Lewis Macdonald, the Deputy Health Minister, issued a statement. It said a definitive decision on the law could only be made by the courts, but that ministers believe an elderly person assessed as needing help with food should have that for free.

The councils’ organisation, Cosla, has been frustrated by the lack of clarity, and fears a series of legal cases could reach different sheriff courts and add to the confusion. That is why it has decided to go to the Court of Session for an interpretation of the law that will act as guidance for sheriffs.

Cosla’s reckoning is that the £150m councils receive from the executive to implement the flagship policy is £70m less than councils are spending, with money being taken from other budgets to meet ministers’ demands. The executive has countered that it is fully funding the policy, with allocations for the policy continuing to rise year on year.

The alleged shortfall has led to one council, Argyll and Bute, claiming it does not have enough money, and that elderly people in need of care should be put on a waiting list.