Duty of local authorities to provide care for the elderly – how far does this duty extend?

Glasgow City Council recently won a case in the Court of Session against the son and carer of Mrs Q, an elderly lady who requires constant 24-hour care.

The case concerned a number of issues, but the focus was on whether the Council had fully discharged its duty under the Social Work (Scotland) Act 1968 to provide the necessary care and assistance to Mrs Q, despite the practical and financial problems faced by her and her family members.

What care do local authorities have to provide for the elderly?

Section 12A of the Social Work (Scotland) Act 1968 imposes an obligation on all local authorities to provide, or to secure the provision of, community care services to any person within their remit who may be in need of any such services. In doing so, they must consider whether the individual concerned is looked after on a regular basis by a carer and if so, the views of the individual and their carer must be taken into account so far as it is reasonable and practicable to do so. Also of relevance in this case was Section 4 of the Social Care (Self-directed Support)(Scotland) Act 2013, which states that the local authority must pay a reasonable estimate of the cost of securing the service.

The case in question

The Court of Session action focused on the extent of these statutory obligations and how much a local authority is obliged to do before it can be said to have discharged its duties in a lawful manner.

The background to the case is quite convoluted but in essence, Mrs Q suffered from peripheral vascular disease and vascular dementia, and had been placed in a care home. She was later removed as her son and other family members had complained about the level of care she was receiving to the point that the relationship became unworkable.

Accordingly, Mrs Q had to move back into her home and receive 24-hour care from nurses and carers. While the local authority did initially make direct payments to contribute towards this care, the level of payment was later reduced as Glasgow City Council took the view that Mrs Q could receive an adequate level of care in a nursing home, and the care at home was unnecessary. The result was that Mrs Q and her family had to pay the balance of the care, as the amount provided by the Council was too low (lower than the care home costs they had previously paid when she was in one).

The Council argued that their actions were legitimate because, by finding Mrs Q a place at the care home, they had satisfactorily met her needs and discharged their duties in full by paying a reasonable estimate of the care costs, having taking into account all information including the views of her family.

Mrs Q’s son disputed this, however. He argued that the Council should pay at least the equivalent of the care home costs to his mother, to cover her 24-hour care fees at home, as this is required by section 4 of the 2013 Act. He further argued that the Council had disregarded his views, contrary to section 12A of the 1968 Act.

The Court ultimately found in favour of the Council, who had acted appropriately and reasonably given the circumstances. Lord Boyd took the view that the Council was paying a reasonable amount for Mrs Q’s care, noting that the payments do not have to be calculated “to a degree of mathematical certainty”. Further, he stated that section 12A requires only that the local authority “takes the carer’s views into account not that they follow them”. By engaging with Mrs Q’s son over a lengthy period of time, the Council had clearly had regard for his views and opinions – albeit they did not agree with them.

So what does this ruling mean for the future?

Well, local authorities will be deemed to have discharged their statutory obligations under the 1968 and 2013 Acts as long as they can be said to have acted reasonably and taken all relevant facts and views into account – irrespective of the outcome for the individual and families involved. The law seems to recognise that local authorities have finite resources and cannot therefore be expected to pay unreasonable sums for care, even if this will leave the elderly exposed to significant fees.

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If you have any questions regarding the issues raised by this case, please get in touch with a member of our team.

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