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Local authority duties to provide social care services

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Local authority duties to provide social care services

06 October 2016

PQ v Glasgow City Council [2016] CSOH 137  is one of the early cases coming through the Court of Session testing provisions of the Social Care (Self-directed Support) (Scotland) Act 2013.  (Due to transitional provisions, the 2013 Act generally only applies the next time a local authority assessment of social care needs is made after its coming into force). 

PQ was a challenge to decisions about the amount of money a local authority was paying for social care services.  One way in which social care services can be provided is by ‘direct payment’; rather than providing services itself, the council transfers funds to enable services to be bought by the service user.  In PQ, the local authority had assessed the needs of an elderly lady with dementia and mobility problems due to a partial amputation as capable of being met in a residential nursing care home. The council therefore had decided to provide direct payments only to the level of the cost of residential nursing care, and not to fund the 24 hour 1:1 care arrangements at home the lady was actually receiving.   The court upheld the local authority’s position.

There were two petitions for judicial review being heard together. In relation to the first petition, since the petitioner had conceded his damages claim was incompetent, the court found the petition to be academic because it was based on a superseded assessment.  In the second petition, the court restated three principles governing judicial review of local authority community care 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. Secondly 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.   Thirdly courts require to exercise particular care in construing reasoned decisions which are not drafted by lawyers and read them in the context within which they are made. In the case of community care assessments usually drafted by social workers, 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. 

Anna Poole QC of Axiom acted for the local authority, Glasgow City Council.