From today the answer to the question: "When is free personal care not free?" must be: "When it is paid for by an elderly person's family." In the five years since the Community Care and Health (Scotland) Act of 2002 came into effect, the much-lauded policy of providing free personal care for the elderly turned into a tangled confusion.
From today the answer to the question: "When is free personal care not free?" must be: "When it is paid for by an elderly person's family." In the five years since the Community Care and Health (Scotland) Act of 2002 came into effect, the much-lauded policy of providing free personal care for the elderly turned into a tangled confusion.
As a flagship early policy of the devolved Scottish Executive, it produced high expectations that elderly people who were unable to care for themselves properly would receive the help they needed to wash, dress or get to bed without being charged for the service or subjected to means-testing. It was designed to replace widely varying criteria and charges in different local authorities with clarity, consistency and fairness, in the words of Lord Sutherland, the architect of the policy. It is an enormous disappointment that implementation of this high ideal failed on each of the criteria of clarity, consistency and fairness. Councils were divided on whether free personal care included the preparation of food, and some which had charged for food preparation subsequently changed their policy and refunded clients.
Nevertheless, the general understanding remains that all personal care is free to people over 65 who have been assessed as needing it by their local authority. Yesterday that was once again thrown into confusion by a ruling from Lord Macphail in the case of an elderly man whose family paid for him to go into a care home without getting approval from the council. William McLachlan had been assessed as in need of personal care, but put on a waiting list. His family solved the problem by paying for his care in the expectation of getting a refund once the council took him on.
Lord Macphail's decision, that a local authority is not obliged to make payments for personal care that it does not provide or commission, will cause shockwaves throughout the country for families who fund care for their relatives either in care homes or in their own homes, but rely on councils to pay for the personal care element.
Two things emerge crystal-clear from this case. One is that local authorities' budgets cannot cope with the cost of free personal care and the other is that the way the policy is implemented needs to be rethought.
Recognising that his judgment would be at odds with the general understanding of the legislation, Lord Macphail invited Scottish ministers to make a submission about the correct interpretation of the legislation. He is right to express publicly his disappointment that they did not take the opportunity because this case and its outcome adds legal precedent to the increasing body of anecdotal evidence that the policy is not working as it was intended.
It is, therefore, good news that a panel chaired by Lord Sutherland has already begun a review. Its members must ensure that it tackles the problems, including funding, clarity and fairness. Their recommendations must lead to the letter of the law matching the intention behind it.
