Recipient of payments under self-directed care provisions fails to challenge alteration to support provisions



Lord Brailsford
Lord Brailsford

A recipient of support payments under the Social Care Self-Directed Support (Scotland) Act 2013 has failed in his challenge of a reduction in support hours by the health board responsible for paying for that support.

Andrew Lennon argued that NHS Highland had acted unlawfully in restricting his choice of support. The respondents maintained that they were entitled to determine whether expenditure under an Individual Service Fund Agreement was legitimately linked to the outcome sought under the Personal Outcome Plan.

The case was heard by Lord Brailsford in the Outer House of the Court of Session. The petitioner was represented by Leighton, advocate, and the respondents by Khurana QC.

Petitioner’s choice

Under section 4 of the 2013 Act, the parties had elected to determine the petitioner’s support needs using the second of four provided options. Option 2 involved the selection of support by the supported person, the making of arrangements for the provision of it by the local authority on behalf of the supported person and, where it is provided by someone other than the authority, the payment by the local authority of the relevant amount in respect of the cost of that provision.

A Personal Outcomes Plan (POP) was prepared in respect of the petitioner, funded by the respondents. Following the POP, an agreement was entered into in 2017 by the petitioner, the respondent, and a private corporate body, Keltic Care Ltd, which outlined how the support due to the petitioner ought to be delivered. In May 2018, the respondents reduced the payments made to the petitioner by way of support from 15 hours per week to 10, which prompted the petitioner’s initial complaint.

It was the petitioner’s contention that he was entitled to choose the support to meet his outcomes as determined by the POP. Counsel submitted that the only restriction on how the petitioner did this was that he was required to act “lawfully and rationally” in making his choice. It was for him to decide if any item of support met his needs or not, including the level of support given by Keltic, and to allow otherwise would effectively negate the statutory scheme.

The position of the respondents was that the petitioner’s argument was misconceived as a matter of fact. The relationship between the parties was governed by a contract, and therefore the correct remedy lay outside of judicial review. Further, the POP in question had since been superseded by a new POP which now determined the level of support the petitioner ought to receive. Any decision in relation to the old one was no longer relevant.

Indicia of a contract

In his opinion, Lord Brailsford noted: “In the present case it is not in dispute that the relevant local authority, the respondents as that authority’s agent and the petitioner had discussions as to how the support to which the petitioner was entitled should be delivered under the provisions of the 2013 Act. Again it is not in dispute that there was agreement as to how this should be achieved. That agreement was encapsulated in a document entitled “Individual Service Fund Agreement” which was entered into between the respondents, the petitioner and [Keltic].”

He continued: “It is plain, and this was not in dispute, that the provisions in that agreement were intended to be implemented. The document has all the indicia of a contractual document. It was characterised in the argument before me as being a contract and I can see no reason why it should not be so considered.”

Evaluating the petitioner’s arguments, he said: “The petitioner’s position, as reflected in the two declarators sought, amount to a contention that he must choose what support he wishes and that the respondents must therefore provide the same. I do not consider that is what the statute envisages. By contrast the statute envisages a proper assessment carried out by responsible officials in collaboration with the petitioner.”

He continued: “Further, it cannot be ignored that in the context of the present case the third party, Keltic Care Ltd, were the agreed party to implement delivery of the service. The detailed complaints in paragraph 13 of the petition appear to be the responsibility of that company.”

Lord Brailsford concluded: “I would in any event have reservations as to the terms of [the proposed] declarator. They are extremely wide, ‘to meet the outcome specified in the personal outcome plan’. Such a declarator ignores, for example, the method of delivery of the POP and who is directly responsible for such delivery. In the context of, as is the case here, a tripartite agreement involving a third party service deliverer the declarator as framed is, in my view, both lacking in specification and at least arguably misdirected.”

For these reasons, the petition was refused.

© Scottish Legal News Ltd 2021



Other judgments by Lord Brailsford