David Hay KC

Mr Hay appeared for the petitioner, the continuing and welfare attorney to his elderly uncle, in CM (attorney to AM) v Western Isles Council [2024] CSOH 103. The council was represented by Ross McClelland KC. In early 2024 the council had undertaken a needs assessment in respect of AM to determine whether he required certain social care services arising from his circumstances in terms of sections 12 and 12A of the 1968 Act.

It concluded that AM had a critical need for assistance, noting a number of areas where he required support. Despite AM expressing the desire to be housed in residential accommodation, it determined that the support to be provided to him would be a care package within his own home. This package did not accord with AM’s preferred outcome and did not meet all the areas of concern noted in the council’s needs assessment, with neighbours and relatives continuing to provide regular assistance to him.

Whilst there was no duty contained in the 1968 Act for the council to provide reasons for its assessment, Mr Hay successfully argued that such a duty arose at common law. Lady Haldane in the Outer House agreed having regard to the wording of the relevant provisions, the concept of fairness at common law, and the ‘special circumstance’ of AM’s expressed views for care.

Lady Haldane went on to conclude that the reasoning provided by the Council in this case was inadequate in that it failed to provide any explanation for its decision to provide a care package as opposed to AM’s preferred outcome of a place in residential accommodation. David also successfully argued that the availability of a route of complaint to the Scottish Public Sector Ombudsman did not prevent CM from accessing a remedy under the supervisory jurisdiction of the Court of Session.

The assessment, together with a later review of that assessment, were declared to be inadequately reasoned and the Council was ordered to undertake a reasoned assessment of AM’s needs anew.