Free Personal Care

15/05/2008

Speaking in this afternoon’s debate on Free Personal Care, David McLetchie MSP, Scottish Conservative Chief Whip, said:

“I would like to focus my remarks on the issue of the legality of charges for assistance with the preparation of meals which is highlighted in the Conservative amendment.  It is claimed that the legislation requires clarification and in her statement to Parliament last week the Cabinet Secretary said that the present Government would bring forward such legislation.   

“There is nothing confusing about the legislation.  The 2002 Community Care and Health (Scotland) Act states that local authorities may not charge for care of a kind for the time being mentioned in Schedule 1 to the Act and if you refer to Schedule 1 of the Act it states in paragraph 2 as a regards a person’s eating requirements – (a) assisting with the preparation of food and (b) assisting in the fulfilment of special dietary needs. 

“In short these services are not only free but entitlement is to be determined on a free standing basis  and not linked to the provision of any other personal care service such as washing and dressing.  And we know that the legislation is clear cut in this respect because when certain local authorities have taken Counsel’s Opinion this is exactly what they have been told.  For example, the Opinion obtained by the City of Edinburgh Council concluded:- 

The Council may charge for: shopping, providing food and providing frozen meals;

The Council cannot charge for: chopping up meat or vegetables, mixing ingredients, cooking, reheating frozen meals, putting food on a plate, cutting up food so that it can be eaten, pureeing food, feeding and other assistance with eating, assistance with special diets and prompting to remember to eat.

“The confusion which has reigned on this issue is wholly the responsibility of the Scottish Executive and the so called guidance which it issued on this subject which was a true master class in obfuscation and ambiguity riddled with  double negatives and entirely lacking in the straightforward and simple clarity of the legal opinion from which I have just quoted.  That is a disgraceful state of affairs given that this legislation has been in full force and effect for nearly 6 years during which time many thousands of people have been illegally charged for this service. 

"13 councils never charged for assisting with food preparation, 11 councils did so initially but no longer do so in light of legal advice but 8 are still charging for this service.  They are identified in the Audit Scotland Report and this is the Roll of Shame, Argyll & Bute, Dundee, Glasgow, North Lanarkshire, Orkney, Renfrewshire, Scottish Borders and Stirling.  Together these eight councils cover nearly one third of the population of Scotland and I do not think it is right that older people living in these areas should be the victims of a postcode lottery in the application and implementation of a policy which is meant to be of universal benefit across Scotland as a whole. 

“The Cabinet Secretary says that she will clarify the law and legislate against such charges but that is at least a year away if not longer.  In the meantime older people in these area continue to receive bills.  I believe that is wrong and that the 8 councils concerned should stop this practice forthwith.  It is all very well to have a vigorous discussion with Westminster about the lost attendance allowance monies but the fact of the matter is the loss of attendance allowance was compensated for when the level of care payments to care homes was set by the Scottish Executive. 

“In other words the older people concerned did not lose out as a result.  However the situation with meal preparation charges is quite the opposite.  People are losing out, the bills are mounting up and the time to take action is now and not months or years down the line.

However stopping charges that are still being levied is only one part of this amendment.  If I might return to the legal Opinion taken by Edinburgh Council it concludes “Although the Council acted in good faith, charges levied have been ultra vires.  People who were illegally charged have a claim for repayment on the grounds that an unlawful charge falls to be reversed”.  On the basis of that advice and with the support of all parties the City of Edinburgh Council agreed to refund those who have been wrongly charged and paid out a total of £1,064,000 to 600 people an average refund of nearly £1,800 per person. 

“We had the roll of shame, Edinburgh Council is on the roll of honour along with West Lothian, Clackmannanshire, Western Isles, Angus and let us not forget Dumfries & Galloway who have authorised a refund programme estimated at £1,500,000.  These councils acted on the basis of legal advice.  They have done the right thing by their citizens and they should be commended by this Parliament for doing so.  However they should not be placed in a position of comparative disadvantage by reference to those councils who either continue to charge or have ceased charging but not yet agreed to refund those who were charged illegally.

If we go back to the start and the original Royal Commission conducted by Lord Sutherland, one of the strongest arguments in favour of the introduction of free personal care was that of equity.  It was inequitable that care was free for people who were being looked after in an NHS facility but subject to means tested charges if people were living in a care home or being looked after in the community.  It was inequitable that this impacted particularly on people with certain chronic conditions such as Alzheimer ’s disease but not on others. 

“It was inequitable that the prudent should pay and pay dearly whilst the imprudent should not.  Accordingly the original Report said that nursing and personal care should be provided on a universal basis as an aspect of publicly funded health and care services.  This principle having been accepted by this Parliament it was never the intention that there should be such wide variations in implementation of the policy across Scotland.  Whilst the previous Scottish Executive is far from blameless in its handling of the meals preparation issue it is regrettable that the present Government sees no degree of urgency in resolving this issue and does not apparently recognise the inequities involved in continuing to charge and failing to refund. 

“Although undoubtedly driven by cash considerations, the attitude of COSLA also deserves criticism.  COSLA knew perfectly well that member councils had clear legal advice stating that these charges were wrong but chose to run for cover and hide behind the smoke screen of discussions with Ministers.  Well Presiding Officer it is up to us to blow away that smokescreen and for this Parliament to state clearly and unequivocally that all our older people should be treated on a fair and equal basis across this country of ours and this wrong should be righted and righted right now.”