The decision of Lord Boyd of Duncansby in this case, dated 5th October 2016, is detailed and helpful upon the issues which it addressed. An apparent but unexpressed assumption, however, upon which the decision proceeds means that the case before the court appears to have been addressed with tunnel vision, leaving wider points of interest unexplored.
PQ brought two petitions for judicial review in his capacity as attorney to his 86-year old mother Mrs Q, against Glasgow City Council. As Lord Boyd put it: “At the heart of the dispute is whether the respondent is required to pay for 24 hour one-to-one care at home or whether Mrs Q’s needs could be provided for in a nursing home.”
Mrs Q had been admitted to a nursing home on 28th April 2010. She was then admitted to hospital on 17th May 2010, where in consequence of vascular problems she underwent a belowknee amputation. She returned to the nursing home on 24th June 2010. Her family were dissatisfied with the care there. She returned to her own home, ostensibly for a short break, on 25th July 2010, but did not return to the nursing home. On 11th August 2010 the director of the nursing home gave notice of termination of the contract for her placement there. Ever since, the family have arranged and provided for her a high quality of care in her home.
Glasgow City Council were the responsible social work authority. In essence, their position remained the same as in an assessment dated 19th March 2010, before Mrs Q went into the nursing home, to the effect that she: “now requires 24 hour care to reduce the risk of falling and ensure that she receives an appropriate level of care. She is currently supported overnight by care purchased privately. This cannot be sustained indefinitely due to financial implications and placement in nursing care is required urgently.”
PQ disputed this. In his submission, she could only be safely cared for in her own home, under the arrangements which the family had put in place. She had no understanding of the amputation and its consequences, so that whenever she tried to stand, she was liable to fall over. She had fallen eight times during her short stay in the nursing home. The decision narrates much evidence brought by both parties in support of their respective views. PQ had applied for direct payments on behalf of his mother. These were made with effect from September.
2010. The proceedings focused upon a support needs assessment on 5th May 2015, setting direct payments at a level (subject to deduction of client contribution) equating to the cost of caring for Mrs Q in a nursing home.
There had been two petitions, and several conclusions in the second petition. Relevant to the final decision were the first and last conclusions of the second petition. The first sought declarator that the Council, in respect of a support needs assessment of 5th May 2015, had failed to perform its statutory duty towards Mrs Q under section 12A of the Social Work (Scotland) Act 1968. The last sought declarator that the Council had failed to perform its statutory duty towards Mrs Q under sections 4 and 5 of the Social Care (Self-Directed Support) (Scotland) Act 2013. Lord Boyd refused to pronounce either declarator. As ever in such cases, he restated the position of the court in such matters. He did so helpfully in the following terms: “ It is worth at the outset recalling a number of fundamental principles which guide the court in the judicial review of such decisions. First it is not for the court to take a decision which Parliament has empowered to a local authority. It is only if the local authority has acted outwith its powers, failed to take into account a relevant matter, omitted to take into account a relevant matter or the decision was Wednesbury unreasonable that the court can intervene. Even if there has been an error in law it will be for the local authority to remake the decision, possibly under the guidance of the court, not for the court to remake it.”
In a passage which will no doubt be welcomed by those in local authorities trying to meet their responsibilities in a time of economic stringency, he recognised that: “local authorities have finite resources and the court has to recognise that it is for the local authority to determine where resources should be spent and in what manner.” On the distinction between the position of a local authority exercising a power, and that of an authority performing a duty, he quoted with approval Lord Nicholls of Birkenhead in R(G) v Barnet LBC, 2004, 2 AC 208: “As a general proposition the more specific and precise the duty the more readily the statute may be interpreted as imposing an obligation of an absolute character. Conversely, the broader and more general the terms of the duty, the more readily the statute may be construed as affording scope for a local authority to take into account matters such as cost when deciding how best to perform the duty in its own area.” (para 13).
At some length, Lord Boyd emphasised that assessments and care plan reviews prepared by social workers should not be addressed as if they had been prepared with legal precision, and criticised on that basis: “They are not drafted by lawyers, nor should they be. They should be construed in a practical way against the factual background in which they are written with the aim of seeking to discover the substance of their true meaning.” (Lord Dyson JSC in R (Macdonald) v Kensington and Chelsea Royal London Borough Council  UKSC 33, at paragraph 53). Later in his decision, Lord Boyd reinforced that point: “Lawyers are used to dealing with opinions from experts as evidence to be set alongside factual evidence. But this assessment was not written by a lawyer but by a social worker and as Lord Dyson said has to be construed in a practical way against the background in which they are written.”
The second conclusion was based on averments that the Council had taken no steps to ascertain the cost of Mrs Q’s assessed need of 24-hour care in a nursing home, including the needs arising from her risk of falling. Lord Boyd noted that in the 2013 Act “relevant payment” is defined as “the amount the local authority considers is a reasonable estimate of the cost of securing the provision of support for the supported person”. He took the view that such reasonable estimate “does not have to be a sum calculated to a degree of mathematical certainty”. He accepted that the Council pays for a substantial number of its citizens in care, and would have a close and ongoing relationship with care providers. The Council would be expected to have an intimate knowledge of the cost of residential care in Glasgow. He was satisfied that there was no error of law in the way in which the Council had discharged its statutory duty under the 2013 Act.
Lord Boyd did narrate the provisions of section 12A of the 1968 Act, including the requirement upon the Council to take account “in so far as it is reasonable and practicable to do so, both of the views of the person whose needs are being assessed and of the views of the carer (provided that, in either case, there is a wish, or as the case may be a capacity, to express a view”. Information about Mrs Q’s own views, beyond the assertions of her attorney on her behalf, are sparse. It is narrated that she was recorded as not wishing to move from her home. As regards her capabilities, it was noted that the assessor and an occupational therapist had “noted that Mrs Q was able to read and do cross words and considered that she might well be able to understand them. They had suggested a cognitive assessment but this was rejected by the family on the basis that her cognitive ability had deteriorated since the last assessment and there was nothing.
It is in relation to the ascertainment of Mrs Q’s views, and her own rights in the matter, that, except as quoted above, this decision is silent. That seems to be predicated upon the assumption that the care arrangements put in place by her family would continue, and that the sole issue in the case was the extent to which Glasgow City Council should contribute towards the cost. The decision, and presumably the submissions before the court, were silent on the issue of whether Mrs Q should in fact be removed from her own home against her wishes and placed in residential care. One might have expected to see an argument that as in the circumstances she could not be forcibly so removed, and as her family including her son as direct descendant did not in Scots law (in contrast to some other jurisdictions, such as Japan) have any obligation to maintain an ascendant, assessment should be on the basis that such family support could not be enforced and could be withdrawn at any time. It is difficult to conclude that Mrs Q’s position under both the European Convention on Human Rights and the UN Convention on the Rights of Persons with Disabilities (neither mentioned in the decision) was irrelevant. Without addressing those aspects in any great detail, one would refer to the right to respect for private and family life under Article 8 of ECHR, which explicitly extends to one’s home and which may be interfered with only in the limited circumstances in Article 8.2. Likewise, among several potentially relevant provisions of UN CRPD, ratified in respect of the whole United Kingdom without reservation, is the right of persons with disabilities to choose their place of residence, that they are not obliged to live in a particular living arrangement, and that they have a right to access to in-home residential and other community support services, including personal assistance, to support living and inclusion in the community.