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OUTER HOUSE, COURT OF SESSION [2007] CSOH 168 |
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P78/07 |
OPINION OF LORD MACPHAIL in Petition of ARGYLL AND Petitioner; against Judicial Review of a Decision of the Scottish Public Services Ombudsman Defender: ннннннннннннннннн |
Petitioners: D. E. L. Johnston, Q.C., M.
V. Ross; Brodies LLP
Respondent: Cullen, Q.C., Munro;
Interested Party: Party
Introduction
[1] This
is the first application for judicial review of a decision by the Scottish
Public Services Ombudsman ("the Ombudsman").
On
[2] The
Council have now brought the present petition in which they seek "reduction of
[the Ombudsman's] decision" on two grounds.
The first ground is that the decision is wrong in law et separatim irrational. The second is that the decision was ultra vires, but that ground has not
been insisted in. The Ombudsman is the
respondent. The petition was served on
Mr McLachlan Junior as an interested party, and was also intimated informally
to the Scottish Ministers. The Ombudsman
and Mr McLachlan lodged answers. The
Scottish Ministers did not do so and have not appeared although invited by the
Court to do so, as I shall explain. I
heard the compearing parties at the first hearing of the petition on 1 and 2
March and
[3] I shall begin by examining in Part I of this Opinion the constitutional position of the Ombudsman. I shall then set out in Part II the relevant terms of CCHSA and other legislation and the cases and materials discussed in argument. Thereafter I shall discuss in Part III the facts which have given rise to the present petition. In Part IV I shall reproduce the Ombudsman's conclusion and recommendation with respect to Mr McLachlan's complaint about the Council. I shall consider in Part V the criticisms which the Council have made of the Ombudsman's report, and in Part VI I shall notice the submissions made by Mr McLachlan. Finally, in Part VII I shall state my decision as to the nature of the interlocutor to be pronounced.
I The Ombudsman
[4] The concept of the office of ombudsman is helpfully discussed in general terms in Wade and Forsyth, Administrative Law (9th edn) at pages 83-85. In their discussion of complaints against administration the authors say (footnotes omitted):
"The primary necessity is the
impartial investigation of complaints. It
has always been possible for the government to commission a special inquiry,
but this is far too ponderous and expensive a process for the ordinary run of
grievances. What every form of
government needs is some regular and smooth-running mechanism for feeding back
the reactions of its disgruntled customers, after impartial assessment, and for
correcting whatever may have gone wrong.
Nothing of this kind existed in our system before the establishment of
the Parliamentary Commissioner for Administration (or ombudsman) in 1967,
except in very limited spheres. Yet it
is a fundamental need in every system. This
was why the device of the ombudsman suddenly attained immense popularity,
sweeping round the democratic world and taking root in
"Ombudsman is a Scandinavian word meaning officer or commissioner. In its special sense it means a commissioner who has the duty of investigating and reporting to Parliament on citizens' complaints against the government. An ombudsman requires no legal powers except powers of inquiry. In particular, he is in no sense a court of appeal and he cannot alter or reverse any government decision. His effectiveness derives entirely from his power to focus public and parliamentary attention upon citizens' grievances. But publicity based on impartial inquiry is a powerful lever. Where a complaint is found to be justified, an ombudsman can often persuade a government department to modify a decision or pay compensation in cases where the complainant unaided would get no satisfaction. For the department knows that a public report will be made and that it will be unable to conceal the facts from Parliament and the press.
"The essence of the ombudsman's technique is to receive the complaint informally, to enter the government department, to speak to the officials and read the files, and to find out exactly who did what and why. No formal procedure is involved at any stage, nor is any legal sanction in question."
[5] The distinctive nature of "any modern Ombudsman system" is described in this way by the present Parliamentary Commissioner for Administration (now usually known as "the Parliamentary and Health Service Ombudsman" or simply "the Parliamentary Ombudsman"), Ms Ann Abraham, in her foreword to The Parliamentary Ombudsman: withstanding the test of time (4th Report, Session 2006-2007, HC 421):
"The investigation and resolution of individual complaints remains the staple diet of the office's work, the evidential base against which patterns of good and bad practice can be mapped. To that task I increasingly bring the sort of 'strategic' approach expected of any modern Ombudsman system: early diagnosis, appropriate levels of response (not the 'Rolls Royce approach' for its own sake), the ability to use the intelligence yielded to aid future prevention as well as immediate cure. The Ombudsman is not a court or tribunal, certainly not a court or tribunal familiar to lawyers of a common law jurisdiction. Ombudsmen and courts are like chalk and cheese: superficially similar, but of very different texture and ingredients. Liberated from the burden of imposing enforceable remedies, with wide discretion, the Ombudsman is free to establish a very different relationship between the disputing parties, based upon trust and shared understandings, not formal compliance."
[6] These
passages from Wade and Forsyth and from the recent report on the Parliamentary
Ombudsman provide useful general indications of the character of the
Ombudsman's office. I shall now refer to
the statutory provisions relative to the respondent.
[7] In
[8] I now notice the provisions of SPSOA which are relevant to the present case. Section 1 establishes the office of Scottish Public Services Ombudsman. Section 2 confers on the Ombudsman powers of investigation. Among other things, the Ombudsman may investigate any matter, whenever arising, if the matter consists of action taken by or on behalf of a person liable to investigation under the Act, if it is a matter which the Ombudsman is entitled to investigate, and if a complaint in respect of the matter has been made to him or her (section 2(1)). "Action" includes failure to act (section 23(1)); and a local authority are "a person liable to investigation" (section 3(1) and Schedule 2, Part I, paragraph 7). It is for the Ombudsman to decide whether to initiate, continue or discontinue an investigation (section 2(3)); and he or she may take such action in connection with the complaint as he or she thinks may be of assistance in reaching any such decision (section 2(4)).
[9] Sections 5 to 8 make provision as to the range of matters which the Ombudsman is entitled to investigate. They include "any service failure" by a local authority (section 5(1)(c)). "Service failure" includes "any failure of the authority to provide a service which it was the function of the authority to provide" (section 5(2)(b)). In the present case Mr McLachlan complained of a service failure by the Council. Section 12 is concerned with the investigation procedure. Where the investigation is pursuant to a complaint, as in the present case, the Ombudsman must give the authority complained of an opportunity to comment on any allegations contained in the complaint (section 12(2)(a)). The Ombudsman gave the Council such an opportunity. Section 13 confers on the Ombudsman extensive powers to obtain evidence.
[10] Sections 15 and 16 deal with reports on investigations. Section 15(1)(a) provides that after conducting an investigation pursuant to a complaint the Ombudsman must send a report of the investigation to the person aggrieved, to the authority complained of, and to the Scottish Ministers; and must also lay a copy of the report before the Scottish Parliament. Section 15(4) requires the authority to make, and to publicise, arrangements for allowing any person to inspect the report at any reasonable time and to obtain a copy of it. To obstruct anyone seeking to inspect or obtain a copy of a report is a criminal offence (section 15(7)).The authority are not required to respond to the report, and there is no legal sanction for any failure by the authority to implement any recommendation made by the Ombudsman as to any action which they should take. If, however, the report finds that the person aggrieved has sustained injustice or hardship and, following the making of the report, it appears to the Ombudsman that the injustice or hardship has not been, or will not be, remedied, the Ombudsman may make and publicise a special report on the case which, like the original report, must be issued and laid before the Parliament (section 16).
[11] Junior counsel for the petitioners and for the Ombudsman made
extensive submissions as to the Ombudsman's functions. The petitioners' submissions were designed to
rebut any suggestion that the Ombudsman was not subject to the supervisory
jurisdiction of the court. The Ombudsman's
junior counsel, however, disclaimed any such suggestion. She undertook a lucid and comprehensive
exposition of the Ombudsman's function and role. I need not recount the respective submissions
of junior counsel in detail because at the end of the day there was little
dispute between the parties on these matters.
It is sufficient to note that junior counsel for the petitioners
referred to R v Local Commissioner for
Administration for the South, the West Midlands, Leicestershire, Lincolnshire
and Cambridgeshire, ex parte Eastleigh Borough Council [1988] 1 QB 855 and
to R v Parliamentary Commissioner for
Administration, ex parte Dyer [1994] 1 WLR 621. Senior counsel for the petitioners referred
to R v Parliamentary Commissioner for
Administration, ex parte Balchin [1997] JPL 917, R v Parliamentary
Commissioner for Administration, ex parte Balchin (No 2) [2000] JPL 267 and
R v Secretary of State for Work and Pensions, ex parte Bradley [2007]
EWHC 242. The effect of these
authorities was not disputed by the Ombudsman's counsel. I shall therefore notice them briefly.
[12] R v Local Commissioner for Administration for the South, the West Midlands, Leicestershire, Lincolnshire and Cambridgeshire, Ex parte Eastleigh Borough Council [1988] 1 QB 855 was an application for judicial review of a report by a Local Commissioner acting in terms of the Local Government Act 1974. Holding that the Local Commissioner was subject to judicial review, Lord Donaldson of Lymington MR said (at pages 866H-867D):
"Let me start with the fact that Parliament has not created a right of appeal against the findings in a Local Commissioner's report. It is this very fact, coupled with the public law character of the ombudsman's office and powers, which is the foundation of the right to relief by way of judicial review.
Next there is the suggestion that the council should issue a statement disputing the right of the ombudsman to make his findings and that this would provide the council with an adequate remedy. Such an action would wholly undermine the system of ombudsman's reports and would, in effect, provide for an appeal to the media against his findings. The Parliamentary intention was that reports by ombudsmen should be loyally accepted by the local authorities concerned. This is clear from section 30(4) and (5) [of the 1974 Act], which require the local authority to make the report available for inspection by the public and to advertise this fact, from section 31(1), which requires the local authority to notify the ombudsman of the action which it has taken and proposes to take in the light of his report and from section 31(2), which entitles the ombudsman to make a further report if the local authority's response is not satisfactory.
Whilst I am very far from encouraging councils to seek judicial review of an ombudsman's report, which, bearing in mind the nature of his office and duties and the qualifications of those who hold that office, is inherently unlikely to succeed, in the absence of a successful application for judicial review and the giving of relief by the court, local authorities should not dispute an ombudsman's report and should carry out their statutory duties in relation to it."
I note that SPSOA does not have any provisions equivalent to section 31(1) and (2) of the 1974 Act. As I have mentioned, SPSOA only makes provision for a "special report" where a report under section 15 finds that the person aggrieved has sustained injustice or hardship and it appears to the Ombudsman that the injustice or hardship has not been, or will not be, remedied (section 16).
[13] R v Parliamentary Commissioner for Administration, Ex parte Dyer [1994] 1 WLR 621 was an application for judicial review of a decision of the Parliamentary Commissioner for Administration appointed under the Parliamentary Commissioner Act 1967. Simon Brown LJ (as he then was) said at page 625F:
"I see nothing about the Commissioner's role or the statutory framework within which he operates so singular as to take him wholly outside the purview of judicial review."
His Lordship also cited (at page
627B-C and G-H) passages from the above dicta of Lord Donaldson of Lymington MR
in Ex parte
[14] The petitioners' counsel distinguished between an application for judicial review which challenged the Ombudsman's exercise of discretion, and one which challenged the Ombudsman's reasoning. In Ex parte Dyer, which concerned a challenge to the Ombudsman's discretion in the exercise of his investigatory functions, the challenge had failed. On the other hand challenges had succeeded in R v Parliamentary Commissioner for Administration, ex parte Balchin [1997] JPL 917, where the Ombudsman had omitted a factor decisive in reaching his decision; in R v Parliamentary Commissioner for Administration, ex parte Balchin (No 2) [2000] JPL 267; and in Ex parte Eastleigh. In each of the two latter cases there had been a serious flaw in the reasoning which went to the heart of the decision. As I shall explain later, the petitioners in the present case challenge, not an exercise of discretion, but the legal reasoning which led the Ombudsman to her decision.
[15] Senior counsel for the petitioners submitted that these cases
showed that the courts were prepared, albeit reluctantly, to review the
decisions of ombudsmen. He also observed
that SPSOA had brought together in one office the functions of a number of
officials who had handled complaints against administration, including the
Scottish Parliamentary Commissioner for Administration and the Commissioner for
Local Administration in
[16] As I have mentioned, none of these authorities was challenged, and none of these submissions was disputed, by counsel for the Ombudsman. They made it clear that she did not suggest that she was immune from judicial review. They submitted, however, that the Court's supervisory jurisdiction should be exercised with sensitivity to the special nature of the Ombudsman's constitutional role and function.
[17] I have no difficulty in accepting the latter submission. I accept that the Court must be careful to
understand and respect the powers and duties of the Ombudsman, in the same way
as it is bound to attend carefully to the position of any other person or body
whose actings are submitted to its supervisory jurisdiction. In the present case the Ombudsman did not
maintain that she was immune from judicial review, but a question arose as to
whether it would be appropriate for her decision in this case to be set aside. I shall discuss that matter in Part VII of
this Opinion.
[18] I also have no difficulty in accepting the submissions for the
petitioners, subject to the following reservations. First, I do not consider that it would be
appropriate for me to adopt in their entirety the observations of Lord
Donaldson of Lymington MR in Ex parte
[19] Secondly, senior counsel for the petitioners criticised a
comment by junior counsel for the Ombudsman that the issue about free personal
care for the elderly had been ventilated by the Ombudsman's inquiry and focused
by her report. The petitioners' counsel
observed that the notion that the Ombudsman existed to ventilate matters of
public concern was an alarming one. That
was a purpose served by the media: it was not a duty imposed on the Ombudsman
by SPSOA. By virtue of section 5 her task was to
investigate and report on allegations of maladministration or service failure. I consider, however, that the Ombudsman's
counsel was saying no more than was consistent with the passage from Administrative Law quoted above: "[The
Ombudsman's] effectiveness derives entirely from his power to focus public and
parliamentary attention upon citizens' grievances."
[20] Thirdly, senior counsel for the petitioners discussed the
question whether the Ombudsman's recommendations and findings were binding. He submitted that while her recommendations
did not bind the petitioners as a matter of law, on the authority of
[21] On the other hand I have no difficulty in accepting a submission by the petitioners' counsel that there is a strong expectation that public authorities will follow the Ombudsman's recommendations. While they are not obliged by law to do so, they are nevertheless subject to very real pressure to comply. As Sir William Wade and Mr Forsyth point out in the same passage from Administrative Law, "publicity based on impartial inquiry is a powerful lever." And there is the prospect of a special report under section 16 if it appears to the Ombudsman that the public authority has not, or will not, remedy an injustice or hardship which she has identified.
II Free personal care: the statutory framework
[22] The central question in this case is whether the Ombudsman was
correct in her interpretation of section 1 of the Community Care and Health (
[23] The statutory provisions of primary importance appear in the Social Work (Scotland) Act 1968, as amended ("SWSA"), the Community Care and Health (Scotland) Act 2002 ("CCHSA") and the Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002 (SSI 2002, No 303) ("the Regulations"). Before setting them out it may be convenient to foreshadow matters that will be discussed in more detail later. In 1999 the Royal Commission on Long Term Care stated that people in long-term care incurred three kinds of cost: living costs, housing costs and personal care costs. Section 87 of SWSA prevented a local authority from providing free personal care to those for whom they had provided accommodation which included personal care: the authority were obliged to charge, subject to means-testing, for the element of personal care as well as for the "housing" element of the accommodation. The Commission recommended that personal care should be exempted from means-testing and should be available for those who needed it. The issue between the Council and the Ombudsman is whether the effect of CCHSA and the Regulations is to distinguish the element of personal care and to provide that where a person aged 65 or over is in accommodation which includes an element of personal care, a local authority are obliged to provide funding for the personal care element of his or her accommodation. It is the view of the Ombudsman that such an obligation is imposed, while the Council maintain the contrary. They argue (1) that the legislation only provides that a local authority are not entitled to charge for personal care, and (2) that the legislation applies only where the local authority are providing the accommodation.
[24] I now set out the statutory provisions, cases and materials.
The
Social Work (
[25] The subject of Part II of
SWSA, as amended, is the promotion of social welfare by local authorities. Section 12 is concerned with the general
social welfare services of local authorities.
Subsection (1) provides:
"(1) It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate, and such assistance may [ . . . ] be given in kind or in cash to, or in respect of, any relevant person."
[26] Section 12A makes provision as to the duty of a local authority, first, to assess a person's needs and then, secondly, to decide whether his or her needs call for the provision of any community care services. These include services which the authority are under a duty or have a power to provide, or to secure the provision of, under Part II of SWSA (sections 12A(8), 5A(4)). Section 12A(1) sets out in subsections (1)(a) and (1)(b) the two limbs of the duty.
"(1) Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority -
(a) shall make an assessment of the needs of that person for those services; and
(b) shall then decide, having regard to the results of that assessment, and taking account -
(i) where it appears to them that a person ('the carer') provides a substantial amount of care on a regular basis for that person, of such care as is being so provided; and
(ii) in so far as it is reasonable and practicable to do so, both of the views of the person whose needs are being assessed and of the views of the carer (provided that, in either case, there is a wish, or as the case may be, a capacity, to express a view),
whether the needs of the person being assessed call for the provision of any such services."
Subsection (1)(b) was substituted by section 8 of CCHSA. As originally inserted by the National Health Service and Community Care Act 1990, section 55, it read:
"(b) having regard to the result of that assessment, shall then decide whether the needs of that person call for the provision of any such services."
[27] Residential accommodation with nursing is the subject of section 13A. Subsection (1) provides:
"(1) Without prejudice to section 12 of this Act, a local authority shall
(a) provide and maintain; or
(b) make such arrangements as they consider appropriate and adequate for the provision of
suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such accommodation by reason of infirmity, age, illness or mental disorder, dependency on drugs or alcohol or being substantially handicapped by any deformity or disability."
[28] Section 87 deals with the charges that may be made for services and accommodation. Subsections (1) and (1A) provide, so far as material:
"(1) [ . . . ] a local authority providing a service under this Act [ . . . ] may recover such charge (if any) for it as they consider reasonable.
(1A) If a person -
(a) avails himself of a service provided under this Act [ . . . ]; and
(b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it,
the authority shall not require him to pay more for it than it appears to them that it is practicable for him to pay."
Subsection (1B), however, was inserted by section 1(6) of CCHSA. It provides:
"(1B) Subsections (1) and (1A) above do not apply as respects any amount required not to be charged by subsection (1) of section 1 of the Community Care and Health (Scotland) Act 2002 (asp 5) (charging and not charging for social care) or required to be charged or not to be charged by virtue of subsection (4) of that section."
Subsections (2) and (3) then continue:
"(2) Persons [ . . . ] for whom accommodation is provided under this Act [ . . .] shall be required to pay for that accommodation in accordance with the subsequent provisions of this section.
(3) [ . . . ] accommodation provided under this Act [ . . . ] shall be regarded as accommodation provided under Part III of the National Assistance Act 1948
[ . . . ]"
In Part III of the National Assistance Act 1948 ("the 1948 Act"), section 22 requires a local authority to fix a standard rate of charges for accommodation and to assess a person's ability to pay. Thus, the effect of section 87(3) is that a local authority must charge for accommodation which is a facility provided or secured by them in terms of section 12(1). Section 87(1B), however, is now inserted.
The
Community Care and Health (
[29] Part 1 of CCHSA is headed
"Community Care". Section 1
empowers the Scottish Ministers to make regulations as respects charging and
not charging for "social care". "Social
care" includes a service provided under SWSA other than the provision of
accommodation (section 22(1) and (2)). Section
1(1) provides, so far as material:
"(1) [ . . . ] a local authority are not to charge for social care provided by them (or the provision of which is secured by them) if that social care is -
(a) personal care as defined in section 2(28)
of the Regulation of Care (
(b) personal support as so defined;
(c) whether or not such personal care or personal support, care of a kind for the time being mentioned in schedule 1 to this Act; or
(d) whether or not from a registered nurse, nursing care."
The definition of "personal care" in section 2(28) of the 2001 Act is in these terms:
"'personal care' means care which relates to the day to day physical tasks and needs of the person cared for (as for example, but without prejudice to that generality, to eating and washing) and to mental processes related to those tasks and needs (as for example, but without prejudice to that generality, to remembering to eat and wash)."
[30] "Social care" is defined in section 22 of CCHSA. Subsection (1) provides in part:
"'social care' means, subject to subsection (2) below, a service provided -
(a) under the 1968 Act [SWSA]; or
(b) [ . . . ]
to an individual by a local authority or a service the provision of which to an individual, under the 1968 Act [ . . . ], is secured by a local authority."
Subsection (2) provides:
"(2) In this Act, 'social care' does not include a service which (or so much of a service as) consists of the provision of accommodation; but in the definition of the expression in subsection (1) above, the references to a service being provided are to the provision of any other form of assistance (including, without prejudice to that generality, the provision of advice, guidance or a material thing)."
[31] Section 2 of CCHSA provides that for the purposes of, among
other things, the definition of "social care" in section 22(1) and (2) of
CCHSA, and for the purposes of section 22 of the 1948 Act (charges to be made
for accommodation) and of section 87(2) and (3) of SWSA (charges that may be
made for accommodation), the Scottish Ministers may by regulations determine
what is and what is not to be regarded as accommodation provided under SWSA. The relevant regulations are the Community
Care (Personal Care and Nursing Care) (
The
Community Care (Personal Care and Nursing Care) (
[32] Regulation 2 provides:
"For the purposes of section 2 of the Act [CCHSA], accommodation provided to or provision of which is secured for an individual by a local authority under the 1968 Act [SWSA] or section 25 (care and support services etc) of the 2003 Act [the Mental Health (Care and Treatment) (Scotland) Act 2003] does not include -
(a) the first г145 per week of care of a kind mentioned in paragraphs (a), (b) and (c) of section 1(1) of the Act."
Personal care is mentioned in paragraph (a). Regulation 3 provides that the requirement in section 1(1) not to charge for personal care applies only where the person for whom the local authority has a duty or power in terms of SWSA is a person aged 65 or over.
Identifying the intention of Parliament
[33] The Ombudsman's counsel referred in some detail to the background to the enactment of section 1 of CCHSA. As to the use of background material, reference was made to the speech of Lord Nicholls of Birkenhead in Wilson v First County Trust Ltd (No 2) [2003] UKHL 40, [2004] 1 AC 816, at paragraphs 56-59, where his Lordship discussed the decision of the House of Lords in Pepper v Hart [1993] AC 593. At paragraph 56 his Lordship said:
"56 The decision in Pepper v Hart [1993] AC 593 removed from the law an irrational exception. When a court is carrying out its constitutional task of interpreting legislation it is seeking to identify the intention of Parliament expressed in the language used. This is an objective concept. In this context the intention of Parliament is the intention the court reasonably imputes to Parliament in respect of the language used. In seeking this intention the courts have recourse to recognised principles of interpretation and also a variety of aids, some internal, found within the statute itself, some external, found outside the statute. External aids include the background to the legislation, because no legislation is enacted in a vacuum. It has long been established that the courts may look outside a statute in order to identify the 'mischief' Parliament was seeking to remedy. Lord Simon of Glaisdale noted it is 'rare indeed' that a statute can be properly interpreted without knowing the legislative object: Black-Clawson International Ltd v Papierwerke Waldhof-Aschagffenburg AG [1975] AC 591, 647. Reports of the Law Commission or advisory committees, and government white papers, are everyday examples of background material which may assist in understanding the purpose and scope of legislation."
[34] At paragraph 57 his Lordship observed that before the decision in Pepper v Hart a self-imposed judicial rule had excluded use of parliamentary materials as an external aid. At paragraphs 58 and 59 his Lordship said:
"58 In relaxing this self-imposed rule the House enunciated some practical safeguards in Pepper v Hart. These were intended to keep references to Hansard within reasonable bounds. One of these safeguards is that the parliamentary statement must be made by the minister or other promoter of the Bill. In imposing this cautionary limitation the House was not, I believe, intending to attribute to ministerial statements some special status, thereby encroaching upon the court's constitutional task of determining objectively what was the intention of Parliament in using the language in question. A clear and unambiguous ministerial statement is part of the background to the legislation. In the words of Lord Browne-Wilkinson in Pepper v Hart [1993] AC 593, 635, such statements 'are as much background to the enactment of legislation as white papers and Parliamentary reports'. But they are no more than part of the background. As I emphasised in R v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd [2001] 2 AC 349, 399, however such statements are made and however explicit they may be, they cannot control the meaning of an Act of Parliament."
[35] Lord Nicholls went on to discuss the duty of the courts to evaluate the effect of primary legislation in terms of Convention rights and to note that the legislation must satisfy a "proportionality" test. That is not relevant in the present case, but at paragraph 63 his Lordship said this:
"Moreover, as
when interpreting a statute, so when identifying the policy objective of a
statutory provisions or assessing the 'proportionality' of a statutory
provision, the court may need enlightenment on the nature and extent of the
social problem (the 'mischief') at which the legislation is aimed. This may throw light on the rationale
underlying the legislation."
[36] The first item of background material to which the Ombudsman's counsel referred was the report of the Royal Commission on Long Term Care, With Respect to Old Age: Long Term Care - Rights and Responsibilities (1999, Cm 4192-I) ("the Sutherland Report"). Chapter 6 of the report considered the scope for and desirability of increases in the scale of public sector provision towards the costs of long-term care, and expressed the view that the only fair and practicable way forward was to make entitlement to state financial support more universal than it then was. "The aim must be to bring significant help particularly to people with relatively modest means whom the present system does not serve well" (paragraph 6.27). The report continued:
"6.28 Against this background we have therefore sought to consider, from first principles, where the balance between collective public provision and personal responsibility should lie in relation to paying for long-term care. What follows represents our analysis and our conclusions, in respect first of residential care and secondly of domiciliary care.
6.29 In principle, people in long-term care incur three kinds of cost (excluding the kind of therapeutic care which is provided by the NHS and is free in any event):
1. living costs, (food, clothing, heating amenities and so on);
2. housing costs (the equivalent of rent, mortgage payments and
council tax) and;
3. personal care costs (the additional cost of being looked after arising from frailty or disability).
6.30 It is admittedly a fine point in some cases as to the category into what particular costs should fall. [ . . . ] The key point is that no distinction is currently drawn in principle between these costs in applying the means test. Where the operation of means-testing results in people having to meet some or all of residential or nursing home fees, they are regarded in principle as contributing equally to all three cost elements of the fees. This system is indiscriminate and illogical.
6.31 We judge instead that a proper distinction should now be drawn for funding purposes between the three cost elements in long-term care. A case has been put to us that the state should meet all three elements, as it does for people in hospital. We do not think however, that this is desirable or necessary. Nor would it be a proper use of limited public funds. People who receive care at home have to meet their living and housing costs themselves. In our judgement therefore people should be fully responsible for elements (1) and (2), that is, their living and housing costs while in residential care, subject to the normal mechanisms for supporting income, subject to a means test if help is required. These are legitimate items for which people may want to save in their old age.
6.32 The costs of personal care as such are however quite different. These are the costs which, unpredictably and through no fault of their own, old people have to incur when unfortunately they can no longer be looked after at home or cannot be sent home after hospital treatment. They reflect the true risk and 'catastrophic' nature of needing long-term care.
In our judgement it is right for the state to exempt personal care from means-testing altogether. This is our key recommendation."
[37] The Royal Commission expressed their recommendation in these terms:
"6.37 The Commission's main recommendation is that personal care should be available for those individuals who need it, after an assessment. (Recommendation 6.4)"
[38] Counsel for the Ombudsman also referred to the following parliamentary materials. In the Scottish Parliament, the Health and Community Care Committee in its 16th Report, Inquiry into the Delivery of Community Care in Scotland (2000) said at paragraph 27:
"The overwhelming message from stakeholders in community care supports the principle of making available personal care services free at the point of use as recommended in the Sutherland Report."
[39] At Stage 1 of the Community Care and Health (Scotland) Bill (which after amendment was later enacted as CCHSA), the Minister for Health and Community Care, Mr Malcolm Chisholm, said in the Scottish Parliament on 28 November 2001 (Official Report, cols 4220-4222):
"There have been many significant developments in community care in this Parliament's lifetime, and the Community Care and Health (Scotland) Bill marks a further milestone in the Executive's commitment to better community care services in every part of Scotland. Just over a year ago, Susan Deacon set out to the Parliament the agenda of joint management, joint resourcing, joint working, better home care, more flexible services, free nursing for our older people and help for all Scotland's carers. As members know, free personal care was added to that agenda in January.
The Community Care and Health (
Equity and fairness are the final two principles on which the bill is built. Because of those principles, the bill gives ministers powers to introduce free nursing care. No longer will someone in a nursing home have to pay for the same nursing care that would be received free in hospital or at home. For the same reasons, the bill also gives ministers powers to introduce free personal care to bring to an end the current situation in which an elderly person with cancer receives free personal care, whereas someone with Alzheimer's has to pay for the same care. [ . . . ]
Let us consider the important
changes and tangible benefits that the bill will bring. It will mean that the Executive will be able
to tackle existing inequities surrounding care for older people by introducing
free nursing care and free personal care.
We will ensure that nursing care is finally free for all who need it,
regardless of the context - free at home, free in hospital and, for the first
time, free in nursing homes. In the same
way, we will ensure that personal care is free for all
[40] Reference was also made to a Ministerial statement by the
Deputy Minister for Health and Community Care, Mr Hugh Henry, at a meeting of
the Health and Community Care Committee which considered the Community Care and
Health (
"The system will be implemented in full. There might well be people who qualify but who do not claim until a later date, and they will not get free personal care until such time as they make their claim. For example, those who are self-funders and are in homes will have the payments made in full whether or not they are assessed. An assessment will need to be done for anyone new coming into the system. Such people will receive the appropriate payments from the date of the assessment decision."
The term "self-funder" was not defined in the course of the argument, but it appears that a self-funder is a resident in a care home whose accommodation there has been provided under a private arrangement between the care home and the resident or someone, usually a relative, acting on his or her behalf who has arranged the placement and meets the fees himself or herself. In other words, a self-funder is a privately placed resident who is either a party to a contract with the care home or is resident there as a result of a contract covering his or her residence which has been made by a representative or relative.
[41] In addition to discussing these parliamentary materials, counsel for the petitioners and for the Ombudsman examined MacGregor v South Lanarkshire Council 2001 SC 502, a decision of Lord Hardie in the Outer House which was referred to in the Ombudsman's report. A man of 90 years of age who had been admitted to hospital sought judicial review of a decision by the respondents to delay providing him with a place in a nursing home. The respondents had assessed his needs for community care services in terms of the provisions of section 12A(1) of SWSA which were then in force and had identified nursing care as best meeting his needs. They had not, however, provide him with nursing care, but had placed his name on a waiting list of persons needing nursing home care and had stated that it would be some months before public funding would become available to him. Lord Hardie pronounced a declarator that the respondents had acted ultra vires and remitted the case to them to make the necessary provision of residential nursing home care.
[42] Lord Hardie said:
"[7] The first issue which I must determine is whether the Act confers any right to community care services upon an individual in any circumstances.
[ . . . ] The terms of sec 12A(1) are such that in appropriate individual cases, where the local authority considers someone may be in need of community care services, the local authority is required to undertake an assessment of the needs of that individual for such services. Depending upon the results of that assessment the local authority requires to decide whether the needs of the individual call for the provision of such services. [ . . . ] I am of the opinion that once a local authority has determined that the needs of an individual in their area require the provision of particular community care services, such as residential nursing home care, and that his or her needs cannot be met in any other way, even in the short to medium term, the effect of sec 12 is to impose a duty on the local authority to provide the necessary assistance to satisfy the individual's needs. In short the local authority must find a place in a residential nursing home for the individual in such circumstances. It seems to me that the clear intention of Parliament was that where a local authority had undertaken an assessment of needs and had decided that the needs of an individual called for the provision of certain community care services, the local authority had an obligation to provide such services. [ . . . ]
[8] The second issue for consideration is whether in exercising their functions under section 12A(1) local authorities are entitled to take into account the resources available to them in undertaking an assessment of needs of an individual for community care services or whether they are entitled to take into account available resources in determining what provision to make for an individual following upon an assessment of needs. Moreover, is a local authority entitled to purport to discharge its obligations towards an individual under section 12A(1) by placing him or her on a waiting list. [ . . . ] When it is undertaking [an assessment of the needs of an individual], I have concluded that the resources available to a local authority are irrelevant to that exercise.
[His Lordship
referred to the speech of Lord Lloyd of Berwick in R v
[10] Once a local authority has completed an assessment of the needs of an individual for community care services the next stage of the process is for the local authority to decide whether the needs of that individual call for the provision of any such services in terms of sec 12A(1)(b). In undertaking this exercise the local authority could of course take into account the resources available to the individual including any additional support available to the individual from neighbours and friends. This would be particularly relevant in the context of an individual who was able to live independently but who required some support within the home, such as assistance with shopping or household chores. At the other end of the spectrum where the assessment of needs discloses that the individual is not capable of living independently, even with support, and requires to be provided with assistance by way of residential accommodation, the resources available to the local authority are relevant in considering how to meet the need for residential accommodation. [ . . . ] While I consider that the availability of resources to the local authority is a relevant consideration in that sense and at that stage of the process, I do not consider that it is an option for the local authority to determine to take no action meantime on the basis that the local authority does not have the available resources to fund a place in a residential nursing home.[ . . . ] [I]n my opinion, doing nothing is not an option available to a local authority. Placing the petitioner on a waiting list for what may be several months pending the availability of a place in a nursing home appears to me to be an abdication of the local authority's responsibility towards the petitioner. Having decided that he was unable to care for himself and that he had insufficient funds to pay for residential care, the local authority was under a duty to make some provision for his care. The nature of that care is a matter for the local authority but the decision to do nothing and place him on a waiting list is in my opinion ultra vires. I would also observe that even if the use of waiting lists has a legitimacy to assist local authorities in utilising their resources to the optimum advantage, the way in which the respondents operate the waiting list for places in residential nursing homes does not appear to me to fulfil that objective. I was advised that the respondents simply placed the petitioner on the waiting list and that he would require to wait his turn in the sense that all of those who appeared on the waiting list ahead of him would be given priority over him. In other words, within the category of persons waiting for places in residential nursing homes there was no attempt by the authority to prioritise the persons waiting for such a place according to their needs. Such a failure by the respondents did not appear to me to be consistent with a desire to obtain optimum advantage from the resources available to the respondents in the sense that the waiting list system failed to provide places in residential nursing homes for those who had greatest need for such places. [ . . . ] If the respondents wish to maintain waiting lists to enable them to assess the needs of the community for whom they are responsible, it is essential that the respondents undertake regular assessments of the relative needs of the persons on the waiting lists to ensure that they utilise their resources to the best advantage."
[43] I note that Lord Lloyd of Berwick was in the minority in R v
III The facts
Mr McLachlan's complaint
[44] The facts are set out in statement 5 of the petition and in
paragraph 19 of the Ombudsman's report (no. 6/1 of process). The process by which the Council dealt with
the case of Mr McLachlan Senior is also set out in a letter from the Chief
Executive of the Council to the Ombudsman's office dated
[45] At the first hearing of the petition, the petitioners' counsel maintained that that assessment had been no more than an initial assessment which was only the first stage of a three-stage process normally undertaken by the Council. That "initial" stage was said to involve the completion of a "Carenap" (care needs assessment package) form: the form in Mr McLachlan's case is attached to the Chief Executive's letter no. 7/16 of process. The normal second stage, said counsel, was the presentation of a completed assessment to the Local Resource Review Group for approval, and the passing by them of the assessment to the Head of Service for funding approval. Thirdly, the Head of Service had regard to the resources available; a priority list was drawn up; and monitoring and updating of client information was undertaken on a regular basis.
[46] The petitioners' counsel argued that the Ombudsman had failed
to understand that the petitioners had not carried out both stages of the
process prescribed by section 12A(1) of SWSA: they had assessed Mr McLachlan's
needs, but they had not decided whether his needs called for the provision of
any community care services. I am unable
to accept this submission. I accept that
the assessment made on
[47] The letter goes on to say that on
[48] The position was more cautiously stated in a letter from the
Council to Mr McLachlan Junior dated 6 February 2006 (no. 7/2 of process)
which told him that his application for funding of free personal care had not
been approved but was on a priority list.
The letter did not suggest, however, that approval might be withheld
because a decision might be made that Mr McLachlan Senior's needs did not call
for the provision of free personal care.
The letter said, "Due to overcommitment of this budget, no finite date
can be given for approval of your application, nor will any monies be
backdated." It is clear, therefore, that
any delay in the approval of the application was a technicality: the only
obstacle to payment was lack of funds. Eventually,
as I have already noted, the Council began to make free personal care payments
with effect from
[49] Mr McLachlan Junior and his mother had read a leaflet issued by
the Scottish Government entitled "Free Personal and Nursing Care from
"On
If you fully fund your own care you will be entitled to a contribution of г145 a week towards the cost of personal care."
Having placed Mr McLachlan Senior
in the care home on or about
"I understand
that your father has been assessed as requiring free personal and nursing care
payments but has been advised by Argyll & Bute council that it is not in a
position to make them. Local authorities
have a duty under the Social Work (
I realise that in the short term this is not a satisfactory answer for you and so I suggest that if you haven't already done so you should write to Douglas Hendry, the Director of Social Work at Argyll & Bute council to make an official complaint. [ . . . ] If you are not satisfied by the response you receive you can then follow this up by complaining to the Scottish Public Services Ombudsman [ . . . ]"
[50] Mrs McLachlan then complained to the Council. Their reply, by a letter dated
"The leaflet outlining arrangements for free personal care gives the impression that funding for free personal care is readily available for everyone. In reality the Council are awarded a fixed amount of money from the Scottish Government to Social Work to meet all of their commitments.
At the time your husband placed himself in [the care home] all of the funding allocated for free personal care was committed. I am sorry to tell you that this is still the case today.
Your husband is on a priority list along with a number of other people awaiting free personal care. All of the people on the priority list are reviewed weekly and as funding becomes available it is awarded on a priority needs basis."
[51] Mr McLachlan Junior had already made his complaints to the
Ombudsman about both the Council and the Scottish Government. Eventually, on
"I refer to [Mr
McLachlan Senior] and advise that, with effect from
The above contribution will be paid directly to [the care home], who should reduce Mr McLachlan's charges accordingly."
Mr McLachlan Junior's complaint about the Council therefore came to be that they had failed to provide a service to his father "between 6 February 2006 and June 2006, in that they did not provide Council funding for his personal care in line with Government Policy." That is the complaint which the Ombudsman upheld. His complaint about the Scottish Government was that they had failed to ensure that the Council provided a service. The Ombudsman did not uphold that complaint.
Availability
of funding
[52] In her report (no. 6/1 of
process) the Ombudsman refers to the availability of funding for free personal
care in the following passages. She
observes in paragraph 8:
"Funding for the policy [of free personal care] is made available to the Council through Scottish Government Grant Aided Expenditure (GAE) funding. GAE represents the level of resources which the Scottish Government considers the local authorities require to cover expenditure incurred in delivering services. The overall amount is sub-divided into a GAE for each local authority service and calculated individually for each local authority. This does not necessarily reflect the actual sums required."
[53] In paragraph 10 the Ombudsman quotes the following extracts
from a Scottish Government Health Department (SEHD) Circular, No. CCD5/2003 dated
"Local eligibility criteria and priorities
18. Local authorities will need to have in place agreed eligibility criteria for assessments of need and priorities for the provision of and access to services based on need. [ . . . ] Following a needs assessment, payment towards personal care should commence when the authority is in a position to arrange or provide the required services. [ . . . ]"
In Section 5, headed "Payment mechanisms", paragraph 1(k) states in part:
"k) Start date of payments and retrospective payments
From
[54] In a section of her report headed "Evidence of the Council" the Ombudsman refers in paragraph 13 to the Council's letter to Mr McLachlan dated 25 April 2006 (no. 7/9 of process) which has been quoted above. She continues:
"14. The Council told me that in 2004/5 it spent г1.968m more on Free Personal Care than the GAE allocation and г2.022m more in 2005/6 - it plans to spend г1.491m more in 2006/7. The Council informed me that the impact of this and consequent pressure on other parts of the social work services had led to a moratorium on spend across all social services within the Council. From December 2005 this impacted on a number of clients waiting for FPC funding who were placed on a priority waiting list to be dealt with as funds became available. An allocation of funds was made available in May 2006 and priority was given to those clients where there was a delay in discharge from hospital because of the lack of funds. In June 2006 further funds were allocated and this sum was in part allocated to [Mr McLachlan Senior]. The Council told me that throughout the operation of the priority waiting list, staff reviewed the status of all those on the list on a weekly basis to ensure that any emergency situations caused by a change in circumstances were identified and addressed immediately.
15. The Council referred to their agreement with a letter written by the Convention of Scottish Local Authorities (COSLA) to the Scottish Parliament Health Committee in February 2006 [no. 6/6 of process] which stated, with respect to section 18 of the Guidance, that:
'Local Authorities are clear on their interpretation of this point. Services can only be provided when the resources are available to meet the assessed needs - in other words when the local authority is in a position to arrange or provide these services. The cash limited nature of this budget sets the boundaries.'
The letter further noted that, just as there were waiting lists for health services because in part of cash-limited budgets, so there would be for social services.
16. The Council stated that it had concluded that as it had no funds to cover the costs of FPC it considered that it was not in a position to arrange or provide the service (as stated within Part 1, section 18 of the Guidance) and, therefore, was not obliged to make such a payment or to backdate such a payment in terms of Part 5, section 1(k) of the Guidance."
[55] Much of the material in paragraphs 14 to 16 may be found set
out at length in the Chief Executive's letter of
[56] In the next section of her report, headed "Evidence of the
SEHD", the Ombudsman reproduced in paragraph 17 an extract from the
Department's letter to Mr McLachlan dated
"Free personal and nursing care is available to people aged 65 years and over who have been assessed as requiring these services.
The funding for the policy is given to the local authorities as part of their Grant Aided Expenditure (GAE) settlement. It should be noted that GAEs are not budgets or spending targets. [ . . . ] It is then up to each Council to decide how best to allocate these resources based on their local needs and priorities.
I would like to assure you that the policy is sufficiently funded with increases each year."
[57] Having set out in these terms the "evidence" of the Council and the Department, the Ombudsman did not make any findings as to the availability to the Council of funding for the free personal care of Mr McLachlan Senior.
IV The Ombudsman's
conclusion and recommendation
[58] The Ombudsman's conclusion
and recommendation relative to Mr McLachlan Junior's complaint against the
Council were in these terms:
"(a)
Conclusion
22. I note that Council staff
took reasonable steps to ensure that no excessive hardship occurred for those
clients affected by the restriction on payments and regularly considered the
needs of each such affected person. The
Council operated its waiting list in accordance with the standards established
by Lord Hardie [in MacGregor v South Lanarkshire Council 2001 SC 502]
and as expected by the SEHD. The Council
also endeavoured to respond promptly and appropriately to [Mr McLachlan
Junior's] complaint. The Council policy
operated in a consistent and clear manner and I do not consider there was
maladministration in this complaint. However,
there remains the question of whether the Council failed to provide to [Mr McLachlan
Senior] a service which they were obliged to provide.
23. The SEHD told [Mr McLachlan Junior] that
the FPC policy was sufficiently funded. There
is a clear indication in the SEHD response [of
24. I, therefore, conclude that there was a
statutory duty placed on the Council by the Community Care and Health (
25. Part 5, section 1(k) of the Guidance refers to payments commencing from the time the personal care service is being provided and not before (emphasis in the Guidance). I consider that the personal care service in question was being provided by the Care Home from 5 February 2006 when [Mr McLachlan Senior] became a resident there and that there was, therefore, an obligation on the Council to pay funds from that point.
(a) Recommendation
26. The Ombudsman recommends
that the Council calculate and pay to [Mr McLachlan Senior] the equivalent sum
to the missed payments for Free Personal Care from the date of the original
notification of eligibility on
V Criticisms of the
Ombudsman's report
[59] The Council submitted that
the Ombudsman's report was founded on errors of law that went to its heart. The fundamental error lay in her
interpretation of section 1 of CCHSA. In
addition, she had failed to appreciate the significance of SWSA, MacGregor and the guidance in the
Scottish Government Circular; and she had failed to notice that CCHSA applied
only where the local authority were providing or securing the provision of
services. The Ombudsman's counsel, on
the other hand, submitted that her interpretation of the law had been correct. The ground of review, accordingly, is error
of law. This is not a case where the
Court is called upon to review a decision taken in the exercise of a
discretion.
The
interpretation of the legislation
[60] It will be convenient to
repeat the material terms of section 1(1) of CCHSA which have been set out more
fully above:
"(1) [ . . . ] a local authority are not to charge for social care provided by them (or the provision of which is secured by them) if that social care is -
(a) personal care [ . . . ]"
The Ombudsman interpreted section 1
of CCHSA as imposing on the Council a positive obligation to make payments in
respect of personal care. She said at
paragraph 24 of her report, "I, therefore, conclude that there was a statutory
duty placed on the Council by the Community Care and Health (
[61] The Council submitted that that construction of section 1 was wholly unsustainable. On a plain reading of its terms, section 1 did not impose on the local authority an obligation of payment: it disabled the local authority from charging for personal care. Further, CCHSA applied only where the local authority was providing, or securing the provision of, services, which here the Council was not.
[62] I shall consider first the submission that the legislation applies only where the local authority are providing, or securing the provision of, services. If that is correct, the Council were not obliged to make any payments in respect of Mr McLachlan Senior's personal care. Secondly I shall discuss the submission that section 1 of CCHSA does not impose on a local authority any obligation to make payment, but only requires them not to charge for certain kinds of social care provided by them. Finally I shall deal with other arguments advanced by the Council.
Applicability
of the legislation
[63] As to the first submission,
senior counsel for the petitioners argued that both section 1 of CCHSA and the
Regulations related only to services provided, or whose provision was secured,
by the local authority. Here, the local
authority had not provided, or secured the provision of, services to Mr
McLachlan Senior. Thus they were not
obliged to make any payments in respect of his personal care.
[64] Senior counsel for the Ombudsman argued that if a person was assessed as requiring personal care, the fact that it was provided pursuant to a private arrangement was nothing to the point. Once a person's needs had been assessed, and once it had been determined that those needs called for the provision of personal care services, the obligation upon the local authority to meet the costs of personal care was engaged as soon as those services began to be provided or from the point at which their provision was secured. The fact that some individuals arranged their own placements in residential care at their own expense while others were entirely dependent upon being placed by the local authority and at public expense made no difference. Free personal care was a universal, non-means-tested benefit available to all assessed as requiring personal care services, regardless of their individual means. The submission for the Council was entirely misconceived. It prompted the question why the Council had begun to make payments to cover Mr McLachlan Senior's care costs at all. There was nothing in section 12A of SWSA to suggest that, merely because the duty to assess was engaged in relation to persons for whom the local authority had a duty or power to provide or secure appropriate services, those services must then be provided by the local authority and no other. Were the legislation to be construed so as to mean that those who arranged their own residential care (or whose families did so on their behalf) fell outside its scope, the result would be to deprive the policy of free personal care of the universal quality it was plainly intended to have.
[65] Counsel referred to the annotations to the 2002 Act in Current Law Statutes. In the Introduction and General Note the annotator, Professor Alastair Bissett-Johnson, states, "Part I makes provision for the delivery of free nursing care and free personal care to those over 65 years of age in all settings." He refers to the Act's "provision for the introduction of free nursing care and personal care for all who need it, regardless of the context." Counsel also pointed out that the Guidance issued by SEHD (Circular No. CCD5/2003, no. 6/8 of process) envisaged the making of personal care payments to self-funders (page 21, paragraph 5(d)).
[66] I accept that section 1(1) of CCHSA must be read in the context of other legislative provisions. I have concluded, however, that even when the section is so read, it is not possible to interpret it as obliging a local authority to make payments for social care which is not provided by them. The section is concerned only with charging and not charging for social care provided by a local authority. It provides, "[A] local authority are not to charge for social care provided by them (or the provision of which is secured by them) if that social care is - (a) personal care [ . . . ]" In section 22(1) "social care", of which personal care is an example, is defined as meaning a service provided under SWSA or other legislation "to an individual by a local authority". Similarly, the Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002 provide that people aged 65 or over who are in receipt of a care home service are not charged for the first г145 per week of personal care which is provided to them or secured for them by a local authority. Regulation 2 provides that "accommodation provided to or provision of which is secured for an individual by a local authority under the 1968 Act [SWSA] or section 25 (care and support services etc) of the 2003 Act [the Mental Health (Care and Treatment) (Scotland) Act 2003] does not include - (a) the first г145 per week of care of a kind mentioned in paragraphs (a), (b) and (c) of section 1(1) of [CCHSA]."
[67] It is not possible to say that the personal care or the accommodation provided to Mr McLachlan Senior was provided by the Council, or that the provision of them was secured by the Council. They were provided by his family, or were secured for him by them. The family considered the care homes in the area, selected one of them and decided to place him in that care home without seeking or obtaining the approval of the Council. The family met the care home fees themselves. That was an entirely private arrangement between the care home and the family with which the Council were not at all concerned. The Council did not arrange Mr McLachlan Senior's placement; there was no contract between the care home and the Council; and the Council had not delegated their functions to the care home. Accordingly, in my opinion, section 1 of the Act and regulation 2 of the Regulations cannot apply to Mr McLachlan Senior. 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.
[68] In section 12A, to which counsel for the Ombudsman referred, subsection (1) imposes on a local authority the duty of making an assessment of needs where it appears to them "that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services." Mr McLachlan Senior was such a person. It is true that if the local authority make an assessment and decide that a person's needs call for the provision of any such services, those services may be provided (or their provision may be secured) by the local authority or by other means. If the latter is the case, however, section 1 and the Regulations cannot apply. Here, it was the family who secured the provision of the services needed by Mr McLachlan Senior. Section 1(1) of CCHSA makes it clear that the local authority are not to charge for certain kinds of social care "provided by them"; and the Regulations are concerned only with care in accommodation provided by a local authority. If, therefore, the person assessed is provided with care and accommodation, not by the local authority but by some other person or persons such as his or her family, section 1 and the Regulations cannot apply. The statements by Professor Bisset-Johnston and the passage in the Guidance are not, in my opinion, warranted by the terms of the legislation.
[69] I have reached this conclusion with reluctance. I make the following observations. First, whether or not, if the issue had been
drawn to its attention, the legislature would have wished to secure that where
a person over 65 for whom a local authority had a duty or power in terms of
SWSA was in residential care, he or she would receive personal care free of
charge whether that care was provided by a local authority or otherwise, the
question whether that object has been secured must be determined by the
language that Parliament has employed, always bearing in mind that the duty of
a court of construction is to determine Parliament's intention from the
legislation. As Lord Nicholls observed
in
[70] Secondly, I am acutely aware that my decision means that since the coming into effect of the new regime on 1 July 2002 there has been a widespread misapprehension as to the meaning and effect of the legislation on the part not only of local authorities but also of the Scottish Government and of persons over 65 in private care homes and their families.
[71] Thirdly, I note the way in which the argument which I have sustained emerged in the present case. The Council appear to have changed their position on this issue. If they had always believed that they had no obligation to provide Mr McLachlan Senior with free personal care after completing their assessment, it is scarcely possible to understand why they made free personal care payments to his care home. They did not suggest to the Ombudsman that they had no such obligation, and no such argument was mentioned in their petition for judicial review. The argument was presented in the third speech, on the third day of the hearing. It was not consistent with an observation by the petitioners' junior counsel on the first day that even a "self-funder" such as Mr McLachlan Senior was entitled to free personal care. It might have been preferable for an issue of such significance to have been foreshadowed in the petition and made the subject of a full debate. The point having been taken, however, the Court is bound to reach a decision upon it.
[72] Fourthly, no argument was addressed to me that the Council, by
reason of the fact that they had paid г145 per week for Mr McLachlan Senior's
personal care with effect from
[73] Finally, I must record that when considering at avizandum the
Council's argument that the legislation applied only where a local authority
are providing, or securing the provision of, services, I observed that the
Scottish Ministers had had no notice that that argument would be presented. It occurred to me that if they had been given
notice in the petition that such an argument would be deployed, they might have
decided to enter the process. I
therefore considered that they should be afforded an opportunity to do so. On
[74] On
"The Scottish Ministers have considered carefully Lord Macphail's suggestion that they might wish to make submissions in response to the petitioners' arguments. Having taken advice, the Scottish Ministers have decided that they do not wish to enrol a motion for leave to enter the process.
The Scottish Ministers' reasons are essentially the same as those which militated against their participating in the proceedings when the petition was first intimated to them. The dispute in this case is essentially a matter between the Council and the Ombudsman as to the scope of the Ombudsman's powers. The Scottish Ministers could give the court their own view of the legislation, but they do not consider that it would be appropriate in the circumstances. The interpretation of legislation is ultimately a matter for the courts."
[75] That response appears to be based on a curious misunderstanding. The dispute was not as to the scope of the Ombudsman's powers. I stated the nature of the dispute in my note. I said:
"[3] The principal argument presented for the
Council was that the Ombudsman had erred in law in her interpretation of the
Community Care and Health (
[4] The first argument is foreshadowed in the petition, but the second is not. The Scottish Ministers therefore have had no notice that it would be presented to the Court. The argument is that a local authority are not obliged to make any payments in respect of the personal care of a person whose care is being provided in a care home through a private arrangement between the care home and the person or someone acting on his or her behalf, usually a member of his or her family. Shortly stated, the argument is that a "self-funder" is not entitled to personal care payments. In effect, personal care payments in respect of a self-funder are ultra vires the local authority.
[5] If that argument is correct, it would be
a matter of great importance to the many residents in private care homes who
have received such payments since the legislation came into force on
[76] It is difficult to envisage how the nature and importance of the dispute could have been more clearly stated. It is a matter of great public interest which affects very many people. It is trite that statutory interpretation is a matter for the courts: the vital consideration, which has been overlooked, is that when determining an issue of such general importance as this the Court would have derived much assistance from submissions made in the public interest which in the circumstances of this case the Scottish Ministers were well qualified and entitled to present. I can only record my disappointment that such assistance has not been afforded to the Court.
[77] I would not have sustained any of the other arguments submitted by the Council. I shall notice them in the following paragraphs.
Whether
section 1 of CCHSA imposes an obligation to make payment
[78] I now consider the other
radical submission for the Council, which was that section 1 of CCHSA did not
impose on a local authority any obligation to make payment. The argument ran as follows. Section 1 removed personal care from the
category of services for which a local authority were entitled to charge by
section 87 of SWSA. Nothing in the long
title of the Act, where the policy and purposes of an Act might be found,
indicated that personal care was to be free or on what other terms it was to be
provided. The long title is, "An Act of
the Scottish Parliament to make further provision as respects social care; to
make provision in relation to arrangements and payments between National Health
Service bodies and local authorities as respects certain of their functions; to
amend the law relating to the National Health Service; and for connected
purposes." The words of the section were plain, and to give them a meaning
entirely different from that which they naturally bore was to play havoc with
statutory construction. Since the
meaning of the words was completely unambiguous, it was not legitimate to
resort to Parliamentary materials to qualify their plain meaning:
[79] Counsel for the Ombudsman submitted that even if section 1 did not express a positive duty to make payment, having regard to the policy and purposes of the Act it could not be intelligibly understood other than as obliging local authorities to meet personal care free. There was no ambiguity about its language when set in its proper legislative context. It was the language of obligation, albeit expressed negatively. It excised from the means-tested regime founded on the National Assistance Act 1948 the social care (including personal care) element of community care services (including residential care). Where previously local authorities had been entitled to charge, accommodation provided under SWSA now did not include the first г145 per week of personal care. That weekly amount now fell to be funded by the responsible local authority.
[80] In my opinion the legislative provisions relative to personal care are unusually complex. It is clear that section 1(1) does not expressly impose on a local authority an obligation to pay for certain kinds of social care but says only, "a local authority are not to charge for social care provided by them." It is impossible to tell, however, from a mere reading of the subsection, how it is to have effect: that is a matter about which the reader is left in doubt. It is therefore helpful to identify the mischief at which section 1 is aimed and to view the section in its legislative context.
[81] To identify the mischief, it is helpful to consider the state of the law as to the assessment of need and provision of care by local authorities immediately before the enactment of section 1. The legislation and other materials to which I am about to refer are set out in Part II of this Opinion.
[82] Section 12A(1) of SWSA imposed (and continues to impose) duties on a local authority where it appears to them that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services. Section 87 of SWSA provided (and continues to provide) by subsection (1) that a local authority providing a service under SWSA may recover such charge for it as they consider reasonable; and by subsection (1A) that they shall not require a person to pay more than it is practicable for him to pay. Subsection (3) provided (and continues to provide) that accommodation provided under SWSA is to be regarded as accommodation provided under Part III of the National Assistance Act 1948. The effect of section 87(3) is that in terms of section 22 of the 1948 Act, as amended, the local authority are required to charge for accommodation and assess a person's ability to pay.
[83] Thus, immediately before the enactment of CCHSA there was a means-tested regime for the provision of community care services, including accommodation provided or secured by the local authority. That meant that where a person was in hospital, the State met all their living costs, housing costs and personal care costs; but where a person was receiving community care services provided or secured by a local authority in a care home, he or she was subject to means-testing and might have to meet some or all of these costs. The Sutherland Royal Commission regarded this system as "indiscriminate and illogical" (paragraph 6.30). They considered that people in residential care should be fully responsible for their living and housing costs, subject to a means test if help was required, but that the costs of personal care were quite different. Their "key recommendation" was that personal care should be exempted from means-testing altogether (paragraphs 6.31, 6.32, 6.37).
[84] It is clear that the mischief at which section 1 of CCHSA, and
the statutory provisions related to it, were aimed was the "indiscriminate and
illogical" system identified by the Commission.
The 16th Report of the Health and Community Care Committee of
the Scottish Parliament supported "the principle of making available personal
care services free at the point of use as recommended in the Sutherland
Report." (Inquiry into the Delivery of
Community Care in
[85] I consider that it is also permissible to refer, as part of the
background to the legislation, to the "clear and unambiguous ministerial
statement" (
"[The bill] will mean that the Executive will be able to tackle existing inequities surrounding care for older people by introducing free nursing care and free personal care."
[86] It is helpful to examine section 1 and the provisions relative
to it against that background. At risk
of repetition, it is possible to see that section 1(1) excises from the
means-tested regime various elements of social care provided by a local
authority including personal care: the local authority are no longer to charge
for it. Section 1(6) inserts into
section 87 of SWSA a new subsection (1B).
It provides that subsections (1) and (1A) of section 87, which are
concerned with the recovery by the local authority of charges for services
provided under SWSA, do not apply as respects any amount required not to be
charged by section 1(1) of CCHSA. Then
section 2 of CCHSA deals with the provisions of the earlier legislation about
charges for accommodation. It enacts
that for the purposes of, among other provisions, section 22 of the National
Assistance Act 1948 and section 87(2) and (3) of SWSA the Scottish Ministers
may by regulations determine what is and what is not to be regarded as
accommodation provided under SWSA. The
Regulations are the Community Care (Personal Care and Nursing Care) (
[87] Once this somewhat labyrinthine study of the relevant provisions and the background materials has been undertaken, there is little difficulty in interpreting the provisions as meaning that a local authority are not to charge for the first г145 per week of the personal care element in accommodation provided, or provision of which is secured, by them. The direction not to charge, which is stated in section 1(1), is entirely consistent with the various statements in the background materials. The amount that is not to be charged is stated in the Regulations. On the other hand, there is nothing in the statutory provisions or the background materials which explicitly provides that the local authority are entitled make payments in respect of personal care. I have concluded, however, that that is to be implied. Let it be assumed that a local authority require to make arrangements for the residential accommodation of a person. If they accommodate the person in a residential establishment of their own, they may, subject to means-testing, charge the person, but not for personal care (and the other kinds of social care specified in section 1(1)). The local authority must bear the cost of personal care (up to г145 per week) themselves. If, instead of so accommodating the person, they secure for him or her the provision of accommodation in a residential establishment operated by a third party, they may pay the third party for the person's accommodation and charge the person as before. The element of personal care will be provided to the person, and charged to the local authority, by the third party, but the local authority may not recover the cost of it from the person since they are forbidden by section 1 to charge him or her for it. The sum they pay to the third party includes an element representing the person's personal care which, again, they must bear themselves. That necessarily means that they must pay the third party for it. That appears to me to be an inevitable and logical consequence of the direction in section 1(1) that the authority are not to charge for personal care. I am therefore unable to sustain the Council's argument.
SWSA,
MacGregor and the SEHD Guidance
[88] The Council argued that the
Ombudsman had construed section 1 as if it stood in isolation. She appeared to have regarded SWSA as having
been superseded, and had failed to understand that SWSA continued to set out
the entire statutory framework for the performance of the Council's statutory
duties in relation to the assessment of needs and the provision of services to
satisfy them. That was an error which
went to the heart of the report. Had the
Ombudsman understood the significance of SWSA, she could not at the same time
have found (a) that the Council had operated entirely in conformity with the
guidance provided by MacGregor and
the Scottish Government, and (b) that they were nonetheless guilty of a service
failure. SWSA and CCHSA provided a
single system, SWSA being concerned with identifying what was required and
matching need to provision, while CCHSA was concerned with the implementation
of free personal care.
[89] I do not consider this to be a sound criticism. It appears to misunderstand the purpose of
the Ombudsman's report, which was to deal with the complaints that had been
made to her in an effective and intelligible manner. It was within her discretion to determine the
appropriate level of response. Here,
like the Parliamentary Ombudsman, she did not adopt "the 'Rolls Royce approach'
for its own sake". When she dealt in her
report with the legislation and legal background, she made it clear that the
information given "does not cover all the relevant legislation, guidance or
case law but summarises the legislative background to this complaint"
(paragraph 7). She did not discuss SWSA
in detail, but it does not follow that she regarded it as having been
superseded. She refers to it in her
discussion in paragraph 12 of MacGregor v
[90] The fact that the Council operated their waiting list in accordance with MacGregor and the SEHD Guidance is, in my view, nothing to the purpose. MacGregor is concerned with the two stages of assessment and decision-making prescribed by section 12A(1)(a) and (b), and with the legitimacy of the operation by a local authority of a waiting list for persons whose needs called for the provision of residential accommodation. In the present case, however, as I have already explained, the assessment process in Mr McLachlan Senior's case was completed by 3 February 2006, and his family provided him with residential care from about 5 February 2006. There was therefore no need to place him on a waiting list. In any event MacGregor was not concerned with the terms of section 1 of CCHSA. I note that Lord Hardie was less than enthusiastic about a local authority's resorting to the use of waiting lists. In the absence of full argument I refrain from comment on that subject, other than to say that, on the assumption that there is an obligation to pay for personal care in respect of a person who is not receiving services provided by the local authority, Lord Hardie's decision cannot be understood as permitting a local authority to withhold the personal care element of a person's accommodation costs once his or her accommodation has been provided.
[91] The Council also relied on paragraph 18 of section 2 of the
Scottish Government Health Department (SEHD) Circular, No. CCD5/2003 dated
Other
arguments
[92] I shall begin my review of the
Council's other arguments by noticing briefly a submission by their junior
counsel which was, as I understood it, that it was illogical to interpret
section 1 of CCSHA as imposing a positive duty which the Council could not
afford to perform as they had insufficient funds. In my view this argument is unsound. A statutory duty cannot be binding only to
the extent that the person on whom the duty is imposed accepts that he is
capable of fulfilling it. If a local
authority, in fulfilment of its duties under section 12A(1) of SWSA, assesses a
person's needs and decides that his or her needs call for the provision of any
community care service, the person's entitlement to the service cannot depend
on whether the local authority can afford to provide it. The argument was not pursued and I do not
consider it further.
[93] Junior counsel for the petitioners deployed a further argument based on the status of Mr McLachlan Senior as a "self-funder", that is, a person whose accommodation in a care home was provided under a private arrangement between the care home and his family. Counsel stated that even a self-funder was entitled to free personal care (that was not the view expressed in her senior's speech, as I have noted); but, she said, that had to be provided against the background of resources, which were taken into account at the second stage of the assessment process. The Council did not have enough money and had to operate a waiting list and a prioritisation system. If, however, the making of an assessment immediately triggered a duty to make free personal care payments, self-funders would "jump the queue" and go to the top of the list every time.
[94] In my opinion this consideration is irrelevant. It depends on the argument just discussed and rejected above. Once the Council have assessed a person's needs and have decided that his needs call for the provision of free personal care by the Council, the Council's obligation to provide it is engaged. There is no additional condition that the Council should be able to afford to provide it.
[95] A further criticism by the Council was that the Ombudsman had mistakenly assumed that it was the Council who had provided Mr McLachlan Senior with residential care from February 2006. The true position was that his care had been arranged by his family, without the Council having first carried out the second stage of the assessment process which was to ascertain what his needs called for. I do not consider that the Ombudsman misunderstood the position. She observes at the end of paragraph 12 of her report that Mr McLachlan Senior's need "was already being met within a care home, although this was not funded by the Council." In her statement of the facts in paragraph 19 she makes it clear that his family had directly arranged his placement in the care home and that he would be self-funding apart from the desired funding for free personal care.
[96] The Council also found fault with the Ombudsman for making no findings in relation to the availability of funding. It was said that she had narrated the evidence of the Council and the statements by the SEHD in their correspondence with Mr McLachlan Junior. She had apparently accepted what had been said by both sides, but they could not both be right. Rather than comment on the availability of funding, she had attempted to solve the problem by creating an artificial distinction between funding and the provision of free personal care.
[97] In my opinion it was within the discretion of the Ombudsman to determine the scale of her investigation and, in the case of the complaint against the Council, to confine herself to the question whether they had failed to provide a service to Mr McLachlan Senior by not providing funding for his personal care. She concluded that CCHSA placed on the Council a statutory duty to provide him with such funding. As I have explained, I have been reluctantly driven to the conclusion that in so finding she was in error, for a reason which was not presented to her. I consider, however, that the distinction which she drew between the provision of services and the funding of services was a sound one. The question whether a person's needs call for the provision of services is determined in accordance with section 12A of SWSA. Once the services are provided by the local authority, section 1 of CCHSA and the Regulations immediately impose on the authority an inescapable duty to fund the personal care element. It is no answer to a charge of failure in that duty to say that the authority had insufficient funds: that may explain the failure, but it cannot alter the fact that the failure has occurred.
[98] I have accordingly rejected all the Council's arguments except their argument that CCHSA and the related Regulations only apply where the services in question are provided by the local authority.
VI The interested party
[99] Before stating the result, I
shall notice the representations made by Mr McLachlan Junior. His answers were lucidly drafted, and while
much of their contents and much of what he said in court did not bear directly
on the legal issues discussed by counsel, he spoke eloquently and with
moderation about the problems faced by elderly people and their families when
there is difficulty in obtaining free personal care. I have already noted in this Opinion the
responses he received when he complained to the Council and to SEHD. The Ombudsman sympathetically and justly
acknowledged in her report that he "found himself in a very frustrating
position, being told by the SEHD that there were sufficient funds for delivery
of the [free personal care] policy and being told by the Council that, in
reality, there were not." (Paragraph 29.) He "was caught at the centre of a well
publicised difference of views between the SEHD who are responsible for the
implementation of the Act and the Council who are responsible for delivering
the Act." (Paragraph 31.) It is not for
this Court, however, to comment on most of the matters raised by Mr McLachlan.
[100] There is, nevertheless, one series of issues mentioned by Mr McLachlan
on which comment is appropriate. He
criticised the Council on several grounds for bringing this petition. First, he said that the Ombudsman had not
made an enforceable decision and thus there were no grounds for judicial review. Counsel for the Ombudsman made a similar
submission, and I shall consider that matter in the next Part of this Opinion. Secondly, he said that the Council should
have delayed taking issue with the Ombudsman's report until she had made a
second, special report in terms of section 16 of SPSOA. In my opinion, however, the Council were
entitled to apply for judicial review without awaiting a special report (cf Ex parte
[101] Mr McLachlan made a further point which requires to be noticed. He said that the Council, by making this application, had exposed him and his family to publicity, although they had been protected from publicity when he made his complaints to the Ombudsman. The matter arises in this way. Section 12(1) of SPOSA provides that an investigation by the Ombudsman must be conducted in private. Section 15 makes provision as to reports on investigations. Subsection (3) provides:
"(3) Apart from identifying the listed authority in question, the report must not
(a) mention the name of any person, or
(b) contain any particulars which, in the Ombudsman's opinion, are likely to identify any person and can be omitted without impairing the effectiveness of the report,
unless the Ombudsman determines that it is necessary to do so."
In her report, accordingly, the
Ombudsman referred to Mr McLachlan Junior as "Mr C", and to Mr McLachlan
Senior as "Mr A". In the petition,
however, Mr McLachlan Junior was named and designed as an interested
party, and these particulars were likely to identify his father as "Mr A". Mr McLachlan Junior accepted that to
name and design him as an interested party was in accordance with practice, but
he maintained that to do so breached his right to anonymity under sections
12(1) and 15(3)(a) of the Act and his right to privacy under article 8 of the
European Convention on Human Rights. He
said that the main attractions of the service provided by the Ombudsman were
that it was provided free of charge to those who considered themselves
aggrieved by an administrative decision, it respected their rights to privacy
and it was an extra-judicial process. He
considered that many individuals would prefer to suffer an injustice or
hardship rather than resort to the Ombudsman if they considered that they might
find themselves in a public court. He
maintained that the bringing of the petition was oppressive to him and his
family. Mr McLachlan's point was
well made, but he did not suggest that publication of his identity could have
been forbidden by the Court.
VII Result
[102] I have held that the
Ombudsman's decision that CCHSA placed on the Council a duty to provide funding
to Mr McLachlan Senior was incorrect. There
remains, however, a question as to what order the Court should now pronounce. In statement 3 of the petition the Council
seek "(i) reduction of the respondent's decision; (ii) such further order,
decrees or orders (including an order for expenses) as may seem to the Court to
be just and reasonable in the circumstances of the case." The "decision" is
identified in statement 2 as the decision above. The petitioners do not seek reduction of the
report, or of the recommendation that they should make the payments to which I
have referred.
[103] The Ombudsman's counsel questioned whether reduction of the decision would be appropriate. Their argument was that the remedy of reduction deprived an administrative decision of its legal effects, but the Ombudsman's decision had no legal effects. Thus, reduction would serve no useful purpose; and the Court did not act in vain when asked to grant decree of reduction: King v East Ayrshire Council 1998 SC 182, Lord President Rodger at page 194G-H. If the Ombudsman's decision was correct, an issue remained about the adequacy and the method of funding of the policy of free personal care. If her decision was wrong, a wider issue still remained: that CCHSA had failed to capture the policy objective of providing personal care services to all those assessed as needing them, regardless of their means and free of any charge. In either case, difficulties had plainly arisen in the implementation and delivery of that policy. The Ombudsman's role in that connection was not to pronounce definitively on what the law was, or on what the solution should be. Her role, once her investigative jurisdiction was engaged by a complaint, was to inquire into the matter and to report in such a way that the nature of those difficulties - the systemic problems exposed by the complaint - were properly identified and canvassed, so that resolution of those difficulties might be pursued through ordinary political processes. Reduction of her interpretation of section 1 of CCHSA would not short-circuit those processes to the least extent.
[104] In my opinion the answer to those submissions is this. The dictum that "the Court does not act in vain" is a quotation from the speech of Lord Wilberforce in Malloch v Aberdeen Corporation 1971 SC (HL) 85 at page 118. In King Lord President Rodger commented:
"In effect Lord Wilberforce is saying that when asked to grant decree of reduction of an administrative decision it is relevant for the court to consider whether the person seeking reduction has a substantial interest in having it set aside."
I consider that there is no doubt that the petitioners have a substantial interest in having the Ombudsman's decision set aside. They are a public body which make decisions on spending and the provision of services on the basis of what they understand to be their statutory powers and duties. The extent of their duties in relation to the provision of free personal care has significant financial consequences for them. The Ombudsman has now found that they have failed to provide a service and has recommended that they make certain payments. In these circumstances I am satisfied that the Council have a substantial interest in the reduction of the Ombudsman's decision.
[105] I shall accordingly sustain the petitioners' first plea-in-law and reduce the respondent's decision of 28 November 2006 that the petitioners were in breach of a statutory duty incumbent upon them under section 1 of the Community Care and Health (Scotland) Act 2002 to provide funding for personal care to the father of the interested party. The recommendation is consequential on the decision and will fall with it. I shall reserve all questions of expenses.
[106] At the conclusion of the speeches of junior counsel on the second
day of the hearing, I invited senior counsel to hand up skeleton arguments at
the continued hearing on the third day. Both
counsel greatly assisted me by responding most generously to that invitation.