Free Care: Landmark Ruling Not Legally Binding

A landmark ruling which brought hope to thousands of elderly people waiting for free personal care was yesterday exposed as utterly toothless. The Court of Session heard a decision by the public services watchdog was not legally binding, and regardless of whether it was judged to be right or wrong in law it would not end the row about councils operating waiting lists for free personal care.

The issue essentially remains one for councils and ministers to resolve, Lord Macphail was told. The frank admission came on the first day of a judicial review hearing, brought by Argyll and Bute Council against Professor Alice Brown, the Scottish Public Services ombudsman. Also present in court was William McLachlan, son of the 91-year-old man at the heart of the case.

In her first decision on free care, Prof Brown ruled last December that Argyll and Bute was wrong to delay four months of payments to Mr McLachlan’s father, identified only as Mr A, and told the council to make good the payments it had missed – around £3000.

Argyll and Bute argued it was forced to make Mr A wait for free care as the executive did not give it enough funding – a charge the executive denies – and case law allowed it to operate waiting lists when resources were tight.

However, Prof Brown ruled the 2002 act which created free care obliged the council to provide payments and the case law cited by the council predated its introduction.

She said that although councils could use waiting lists for some services, they could not use them for funding free personal care. The decision raised hopes free care waiting lists would end.

Argyll and Bute yesterday asked the Court of Session to strike down Prof Brown’s ruling on the grounds it was wrong in law, irrational and ultra vires. Morag Ross, junior counsel, said the key section of Prof Brown’s report, giving her decision, was “flawed in every respect”.

Ms Ross said Prof Brown had misconstrued the 2002 act, had been wrong to say waiting lists could not apply to free personal care and had created an illogical distinction between services and funding.

Jane Munro, junior counsel for the ombudsman, admitted the ruling was not legally binding and the power of ombudsmen lay in focusing attention on grievances. “It really is a matter of no moment whatsoever whether the ombudsman was correct or not correct in her interpretation of the 2000 act.”

She questioned what practical purpose would be served by striking down Prof Brown’s ruling and said the controversy over waiting lists remained to be resolved within the political process.

Lord Macphail observed striking down the decision might stop the ombudsman pursuing complaints and wasting councils’ time, if that was what she had been doing.

Ms Munro said it had been clear since the Sutherland Commission’s report into care for the elderly in the 1990s what politicians and others had intended by free personal care, and the 2002 act could only be “intelligibly understood” as putting local authorities under an obligation to meet the costs of personal care.

Mr McLachlan, 61, who expects to speak in court today, said for him the issue was clear – free care delayed was free care denied. He also hoped Lord Macphail would give a view on waiting lists, adding the case affected people with “limited life expectancy”.