Dementia sufferer’s claim against council for 24-hour one-to-one care refused



Scottish Legal News

A man acting under a power of attorney who claimed that a local authority should pay for his elderly mother’s 24-hour one-to-one care at home has had a petition for judicial review dismissed.

The petitioner “PQ” argued that the respondent Glasgow City Council failed to perform its statutory duty under section 12A of the Social Work (Scotland) Act 1968 to assess the support needs of his dementia-suffering mother “Mrs Q”, and provide the appropriate services.

However, a judge in the Court of Session refused the petition after ruling that there were no flaws in the council’s decision making process.

Lord Boyd of Duncansby heard that at the heart of the dispute was whether the respondent was required to pay for 24-hour care at home or whether Mrs Q’s needs could be provided for in a nursing home.

Mrs Q, an 86-year-old widow who suffered from peripheral vascular disease and vascular dementia, had been living at home with support organised by the council’s social work department, but found it increasingly difficult to cope.

Following a council report on her care needs, Mrs Q was admitted to Glenlivet nursing home in April 2010, but as a result of the deterioration in her health she was taken to hospital, where she underwent a below knee amputation.

She returned to the nursing home and then went to her own home for what was intended to be a short break on 25 July 2010, but has lived there ever since.

Mrs Q’s family were dissatisfied with the level of care provided at Glenlivet and made numerous complaints, following which the placement was terminated.

Shortly after Mrs Q’s return home in 2010 an assessment under section 12A of the 1968 Act was carried out, which concluded that a 24-hour care plan needed to be put in place, and the petitioner subsequently applied for and received direct payments on his mother’s behalf, though the level of payment was later reduced.

Following a complaint by the petitioner, in 2015 a further support need assessment under was carried out, which also concluded that Mrs Q required 24-hour care and determined that the level of payment should be the same.

The petitioner’s position was that because Mrs Q was constantly at risk of falling she required to be cared for at home with 24-hour care on a one- to-one basis.

No nursing home it was said would provide the kind of 24 hour one-to-one care needed and accordingly she could only be cared for in a home setting with a nurse or carer with her 24 hours a day.

The petitioner accepted that the respondent was entitled to exercise its discretion in performing its statutory duties, but argued maintained that on any reasonable exercise of that discretion the amount of direct payment should not be less than the cost of home care provided to Mrs Q.

So far as the 2015 assessment was concerned, it was submitted the respondent failed to discharge its duties under section 12A and the conclusions were “illogical, irrational and unreasonable”, as the assessment failed to take into account a substantial body of evidence including expert reports and anecdotal evidence from Mrs Q’s time at Glenlivet and the evidence of her unique condition to the effect that she required one-to-one care.

It was said that the assessment failed to take into account the views of the family, or at least failed to give them sufficient weight; esto the assessment did have regard to such evidence then the decision was outwith the range of decisions which a reasonable decision maker would have made.

However, the respondent maintained that it had fulfilled its statutory duties, adding that the assessment that Mrs Q’s needs could be met by 24-hour-care within a residential nursing home was within the range of decisions open to a reasonable decision maker.

In a written opinion, Lord Boyd said: “Under section 12A(1)(b)(ii) of the 1968 Act the respondent, in making the assessment must take into account so far as reasonable and practicable both the views of the person whose needs are being assessed and of the views of the carer.

“However the submission that the respondent did not take account of the views of the family is simply wrong. First there is a long history of engagement between Mr Q and the Council in which Mr Q repeatedly made his views known on what level of care should be provided for his mother. Secondly the assessment itself records at numerous points the family’s views and the fact that the assessor does not agree with it.

“The terms of the section require only that the respondents take them into account not that they follow them.”

He added: “If there are any flaws in this process, and I am not convinced there were, they are of no moment. Accordingly I shall refuse to pronounce a declarator and reduction of the support needs assessment.”

A further complaint that the respondent failed to perform its statutory duty under sections 4 and 5 of the Social Care (Self-directed Support)(Scotland) Act 2013 was also rejected.

Lord Boyd said: “So far as levels of payments are concerned under section 4 of the 2013 Act the respondent has to pay a reasonable estimate of the cost of securing the service. It does not have to be a sum calculated to a degree of mathematical certainty.

“I am satisfied that there is no error of law in the way in which the respondent has discharged its statutory duty under the 2013 Act.”