Lord Macphail observed that the Community Care and Health (Scotland) Act 2002 is "unusually complex", so I will start by outlining the background. The case involved a complaint to the Scottish Public Services Ombudsman that Argyll and Bute Council failed to provide funding to cover the personal care costs of an elderly resident, Mr McLachlan. As was the practice of some other local authorities, Mr McLachlan was placed on a waiting list until funding was found. In the interim, his family arranged and paid for care in an independent home. Like many other families, they did what they thought was right and best for their father.
The family then sought to be reimbursed from the date of their father's assessment. The ombudsman decided that the council had been obliged by the terms of the 2002 act to provide Mr McLachlan with free personal care. She further recommended that the council should have made payments from the date when he became eligible, following assessment. Argyll and Bute Council challenged that.
This brings us to Lord Macphail's Court of Session judgment. He took the view that Argyll and Bute Council was not required by section 1 of the 2002 act to meet the personal care costs of Mr McLachlan, as the act states:
"a local authority are not to charge for social care provided by them (or the provision of which is secured by them)".
In Mr McLachlan's case, the care was provided through an entirely private arrangement between his family and the care home.
Although I have no doubt that it was the intention of the Parliament to provide a universal entitlement to free personal care, the
Now we come to the crucial point. Before reaching his final decision, Lord Macphail gave the Scottish ministers an opportunity to instruct counsel to appear before the court to make submissions "in the public interest" about the correct interpretation of the legislation on free personal care, but they declined to do so. Lord Macphail expressed his disappointment that he had not been afforded such assistance and indicated that he had reached his decision with reluctance. His decision stated:
"it was not possible to interpret the legislation about free personal care as obliging a local authority to make payments for personal care that was not provided by them."
The case has gone from being one in which the ombudsman recommended that the council should calculate and pay a sum equivalent to the payments for care from the date of eligibility, to one in which a Court of Session judge decided that it was not possible to interpret the legislation as obliging a local authority to make payments for personal care that was not provided or secured by it. The judge further stated that the ombudsman's decision that the 2002 act placed a statutory duty on the council to provide funding was incorrect.
We now have a judgment that casts doubt on whether councils are obliged to pay for care in the independent sector and which appears to legitimise the use of waiting lists and the rationing of personal care by councils such as Argyll and Bute Council. More than 9,000 self-funders are in care and others are being assessed, and they need reassurance and clarification from Parliament—and, I hope, from this debate—to put their minds at ease.
On a matter of such importance, it is deplorable that the Scottish ministers refused to make a submission to the court about the correct interpretation of the legislation, as they were invited to do. The summary of Lord Macphail's judgment stated:
"the matter was of great importance".
Lord Macphail himself said:
"the Court would derive invaluable assistance in arriving at a decision on that very important issue from hearing submissions on behalf of the Scottish Ministers."
I agree with the judge's further comment that the legislation is "unusually complex." All this mayhem happened because the Scottish ministers refused to co-operate. Now there is a judicial review that casts doubt on whether councils are obliged to pay for care in the independent sector. All of us in the Parliament are aware that the court decision is not in line with the
Labour and the Lib Dems are not blameless either—I am sure that we will hear from them. They indicated to the Scottish Public Services Ombudsman in February that they did not intend to intervene.
I do not have much time, and I know that the member will have the opportunity to clarify later.
Had the ombudsman been given assistance by the Liberal and Labour coalition, would the decision have been different? Had the judge been given assistance by the nationalist Government, would his decision have been different? We will never know the answers to those questions.
While I do not think that the cabinet secretary has covered herself in glory in relation to this case, it is fair to acknowledge the steps that have been taken to deal with the problems inherited from the previous Scottish Executive, as outlined in the Scottish National Party amendment. If the cabinet secretary is prepared to give the assurance that the Scottish Conservatives seek today for people who are in care and for families who are affected by the judgment, we will accept the amendment in her name and lend our support to legislation that may be required to resolve the matter once and for all. Older people in Scotland deserve no less.
That the Parliament notes with concern that the interpretation, implementation and funding of the Community Care and Health (Scotland) Act 2002 has been beset by difficulties, many of which remain unresolved; believes that the decision of Lord Macphail on the Petition of Argyll and Bute Council dated 17 October 2007 is contrary to the intention of the Parliament, and calls on the Scottish Government to assure all people over 65 currently resident in independent care homes who have been assessed as eligible for free personal care, and others who may be assessed in future as so eligible, that councils will continue to fund their personal care regardless of whether or not there is a contract to which a council is a party.
Although we may not agree with the exact wording, I endorse the sentiment of Mary Scanlon's motion. We all want the free personal care policy to work more effectively and to reassure people that, in line with Parliament's intention, their care needs will be met.
The policy for free personal and nursing care has had a positive impact on the lives of more than 50,000 vulnerable older people. People are receiving free care that previously they would have had to pay for. That applies to people whose care is arranged entirely by a local authority and to those who arrange their own care with council support only for the free personal and nursing care element.
There has been significant and widespread misunderstanding of last week's ruling by Lord Macphail—Mary Scanlon herself said that it was a complex case. I want to take this opportunity to reassure all those older people and their families who are concerned about the reported implications of the ruling.
The ruling does not mean that certain people who are assessed as needing personal care are not entitled to receive payments for it from their local authority; nor does it mean that an individual or their family is prevented from arranging their own care in a care home of their choice. Neither does the ruling say that payments to self-funders by local authorities are ultra vires. Indeed, at paragraph 87 of the ruling, the judge specifically rejects that argument. There is, therefore, no risk of any self-funder who is already in receipt of free personal care having it withdrawn or reclaimed. It is important to give that reassurance.
The ruling confirms that the obligation on the local authority to make payments begins not at the point of assessment, but when the local authority has a care contract in place with a care provider. That is consistent with the guidance that was issued to local authorities by the previous Administration in July 2003, and it reflects the operation of the law as we inherited it.
In the vast majority of cases, the time between the local authority assessment and the contract being in place is minimal. However, in some cases—as in the Argyll and Bute case that Lord Macphail considered—there is a delay and, effectively, the operation of a waiting list.
The issue of waiting lists is one of a number of concerns about the operation of the current policy that we identified in opposition—as did the Conservatives—and are committed to addressing now that we are in Government.
Indeed, that may be the case, but the ruling confirms that what Argyll and Bute Council did is in line with the existing guidance issued by the previous Administration. That suggests that there may be a problem with the existing guidance that we now have to address.
Let me outline the actions that we are taking forward, which I previously outlined in June when we debated free personal care. We are engaging closely with the Convention of Scottish Local Authorities to address issues about the implementation of the current policy, including waiting lists, food preparation and eligibility criteria. As I indicated in June, we are prepared to revisit the legislation if, as a result of those discussions, we consider it necessary.
In addition, we have asked Lord Sutherland to chair an independent commission to examine the funding of free personal care, so that we can ensure that it can be put on a sustainable basis for the long term. Of course, we are committed to increasing the payments for free personal care from next April, which will be the first time they have been increased since the policy was introduced.
If the member lets me make some progress, I will take an intervention shortly.
I will now address a central point. As well as the ruling being misunderstood, comment has been made—we have heard it again this morning—about the Scottish Government's decision not to be represented in the case. Let me make it clear that the Scottish Government was not a party to the case, and after careful consideration we decided that it would not be appropriate for the Government to participate. I respect the fact that others take a different view, but it is worth noting that the previous Administration also declined to enter the case when asked if it would do so by the ombudsman.
Given the comments of the cabinet secretary and Mary Scanlon, it is important, for the removal of doubt, to make it clear on the record that at no point did ministers in the previous Administration decline a request to give evidence at the hearing, nor did we at any point commit any incoming Administration to refuse any such request.
The ombudsman asked the previous Administration whether it intended to become involved in the case, and it said that it had no intention of doing so. That is a matter of fact.
I have to move on, as I am in my last minute—I took the member's intervention.
What I believe is important now—Mary Scanlon addressed the issue well in her speech—is that collectively as a Parliament we reassure older people, their families and their carers that free personal care will continue on a strong and sustainable footing. The policy is positive and has received all-party support. I hope that that support continues.
The Scottish Government is committed to addressing the issues in relation to the existing policy that have caused and are causing concern and to securing the policy's place at the heart of our social care agenda for many years to come. In seeking to do that, I hope that we will receive support from throughout the chamber.
I move amendment S3M-679.1, to leave out from "has been beset" to end and insert:
"have raised difficulties, many of which remain unresolved; notes that the decision of Lord Macphail dated 17 October 2007 on the Petition of Argyll and Bute Council reflects the guidance issued in July 2003; wishes to reassure those assessed, either now or in the future, as requiring free personal or nursing care that their entitlement to receive it is not affected by Lord Macphail's decision; agrees, however, that the current operation of the law, although in line with existing guidance, may in some cases result in an undue delay between assessment and a local authority care contract being concluded; therefore supports the Scottish Government's ongoing dialogue with COSLA to address issues such as waiting lists, eligibility criteria and food preparation, together with its assurance that it will take action, if necessary, to clarify the law, and considers that Lord Sutherland's review of the level and distribution of resources for free personal care will make a valuable contribution to ensuring that the policy is put on a secure and sustainable basis for the long term."
Our amendment has three key elements. The first is to re-emphasise the Government's failure to represent the public interest at the recent judicial review of the decision made by the Scottish Public Services Ombudsman. Secondly, and equally important, is the Government's failure to understand the point at issue that was before Lord Macphail in the judicial review. That failure has been confirmed again this morning. Thirdly, notwithstanding the review that is being carried out—I am not critical of Lord Sutherland's role—the Government must address certain issues to reassure local authorities and individuals,
Lord Macphail's decision to invite the Government to represent the public interest was clearly not taken lightly. He said:
"the Scottish Ministers had had no notice that that argument" that was before him "would be presented".
Furthermore, he stated:
"It is difficult to envisage how the nature and importance of the dispute could have been more clearly stated."
On the issue about the previous Government's failure, let us be clear that the point at issue was not before the ombudsman—it was not the issue that came into dispute—and that the case as stated by Argyll and Bute Council, and particularly the stance of the ombudsman, was entirely consistent with the view taken by the then Scottish Government. Only in the course of the case did it emerge that Argyll and Bute Council had changed its stance. I quote from paragraph 71 of Lord Macphail's judgment:
"They did not suggest to the Ombudsman that they had no such obligation, and no such argument was mentioned in their petition for judicial review. The argument was presented in the third speech, on the third day".
That is why the previous Executive did not present itself, but it is no excuse for the current Government, because all those facts were made clear to it.
I do not see how Ross Finnie can say that the original decision of the ombudsman was in line with the view of the previous Government. The guidance issued by the previous Government states:
"payments will commence once the ... care service is being provided. It does not start before and will not be backdated ... to the date of ... assessment."
That is the guidance that the previous Administration issued and that is the view that Lord Macphail's judgment confirmed.
Whether it was rejected or not, the judge believed that there was a public interest that ought to have been considered. Despite that clear injunction, the cabinet secretary declined to go there. As Mary Scanlon said, Lord Macphail stated:
"the Court would have derived much assistance from
It is staggering that in those circumstances the present Government declined the opportunity.
It is equally important to recognise that there are no excuses for the Government's failure to understand the issue before the court. In deciding not to enter the process, the Government stated:
"The dispute in this case is essentially a matter between the Council and the Ombudsman as to the scope of the Ombudsman's powers ... The interpretation of legislation is ultimately a matter for the courts".
Lord Macphail described the first defence as being
"based on a curious misunderstanding. The dispute was not as to the scope of the Ombudsman's powers."
Lord Macphail's euphemism can be interpreted as implying a total failure to understand the point at issue that was before him. He was less kind in his description of the Government's second defence:
"It is trite that statutory interpretation is a matter for the courts: the vital consideration, which has been overlooked, is that when determining an issue of such general importance as this the Court would have derived much assistance from submissions made in the public interest".
The Government was content for the public interest to be overlooked. I submit that that is not acceptable. If Government ministers are not prepared to represent the public interest, who is? The Government must assure the Parliament that ministers will not desert the public interest, as described in the particular circumstances, by default.
I acknowledge that, as was made clear in the cabinet secretary's intervention, the judicial review has confirmed that there are issues of interpretation. I also acknowledge that Lord Sutherland has been instructed to conduct a review, which will probably be of great assistance. Nevertheless, there are concerns about people who are at the initial stages of the process, particularly those who are self-funders.
The gap still exists. There has been some acknowledgement that the waiting list issue still arises, and there is the issue of cost. I cannot believe that, given the clarity of Lord Macphail's judgment, local authorities will not have difficulty and that therefore individual self-funders will not have some difficulty. The local authorities that previously took a totally different view from that of Argyll and Bute Council will now want to review their position. The Government has to address the issue.
I move amendment S3M-679.2, to leave out from "with concern" to end and insert:
"the judgement of Lord Macphail on personal care and its consequences; notes with disappointment the SNP Government's handling of this issue and recognises the need for urgent clarity to allay the concerns of older people and their families as well as to give clear guidance to service providers; calls on the Scottish Government to take the appropriate steps to provide this clarification as soon as possible, including a statement to the Parliament on the issue, and further calls on the Scottish Government to take all steps necessary to ensure that local authorities do not find that in providing free care for self-funders they are acting ultra vires."
In this short debate, I will deal with the cabinet secretary's attempts to divert from and obfuscate the central problem. I will put on record the previous Executive's position. I will clarify the SNP Administration's incompetence in not presenting itself to the court and, finally, I will examine the alternatives to address the results of the decision.
The original case led to the ombudsman making a judgment, which we know about. The cabinet secretary has accused the Labour Party of hypocrisy in what she said was its decision not to attend when the petition's appeal went to Lord Macphail. In fact, the previous Government responded not once but twice. In February, the Scottish Executive indicated that the outcome of the ombudsman's review was satisfactory and that it did not feel the need to become involved, at least until the response by the ombudsman was submitted. In March, having seen the ombudsman's response, ministers indicated that the Executive would not get involved at that time, but made it clear that it would watch progress.
The original grounds of the petition ultimately were rejected, as the Government expected. However, on the third day of the hearing, as Ross Finnie has made clear, new grounds arose, and it was on the basis of those new grounds that Lord Macphail invited the Government to become involved. He said:
"the Scottish Ministers had ... no notice" that the new arguments would be presented to the court, and:
"It may be that if the Scottish Ministers had been given notice that such an argument would be deployed, they would have sought an opportunity to convey their views to the Court."
He also said:
"I observed that the Scottish Ministers had had no notice that that argument would be presented. It occurred to me that if they had been given notice in the petition that such an argument would be deployed, they might have decided to enter the process."
It was on that basis that, on 10 July, he invited the Government to become involved. On 7
I accept that other parties do not agree with our decision not to participate in the case, and they are entitled to put on record their criticisms. As members would expect, I will reflect on all of that. However, will Richard Simpson address the flaws in the policy that we now need to sort out? Does he accept that the existing guidance, which was issued by the previous Administration, is flawed and that that is why some of the problems have arisen?
We would not be in a court situation if there were not some difficulties in interpreting the law. However, the point is that Nicola Sturgeon accused the Labour Party of hypocrisy completely inappropriately, and she should apologise to Lewis Macdonald, who was the minister at the time, for the inferences that she has drawn to besmirch him and the previous Government. That was entirely inappropriate.
The new arguments that were presented to the court were crucial, and on that basis Lord Macphail sought the Government's opinion as a "vital consideration" that might have been overlooked. He said that
"in ... this case the Scottish Ministers were well qualified and entitled to present" their submissions, and continued:
"I can only record my disappointment".
That is mild language, but, coming from a judge, the meaning is much stronger. The cabinet secretary should apologise to Lewis Macdonald for the inferences that she has drawn.
We are left with a number of questions. Why did the SNP fail to respond to the wholly new issue that was not in the original petition? Would the result have been different had it presented evidence? As I said on "Newsnight", we will never know the answer to that question. Indeed, we might not have been having the debate if the cabinet secretary had chosen to stand up and represent the public interest. The last question is: where do we go from here? The SNP should stop indulging in picking fights with Westminster and concentrate on the serious devolved issues with which Scots are concerned, of which free personal care is one.
The minister has to review the decision without waiting for the Sutherland review, as the Liberal Democrat amendment suggests, and come back to Parliament with the necessary measures to ensure in particular that councils do not use the judgment to create waiting lists, as Fife Council is
I am not sure if that is the case, but on this issue you are right, Presiding Officer.
The Government needs to come out with clear guidance on the gap between assessment and care provision where care is available—that is the issue at stake. Care was available, and the family chose to use that care. Why was there a gap in a care home that Argyll and Bute Council was already using? It was purely to create a waiting list, which is unacceptable. Indeed, the MacGregor judgment of Lord Hardie indicated previously that that was unacceptable. I hope that the Government will deal with the issues and make an apology.
I will deal briefly with the Macphail judgment to get it out of the way, because the whole debate surely cannot focus on that.
I want to discuss whether it would have made any difference if someone from the present Government had made a submission. I am looking at what Lord Macphail said. There was a great deal of argument about how far the courts could go in looking at what was said in Parliament. Lord Macphail said:
"While a court in construing legislation must always seek the true intention of the legislature, it cannot ignore the natural meaning of clear words the legislature has chosen to use. The language used in section 1 and the Regulations is in this respect unambiguous."
I must ask: once all the heat and smoke has died down, would it have made any difference? I say that the answer is no—from the judge's own words, the legislation is clear and unambiguous.
I have only four minutes.
The legislation may be clear and unambiguous, but it is obviously not doing what we thought it would do when we started the process a long time ago. Everybody was so proud of the legislation at the stage 3 debate in 2002, when the then Minister for Health and Community care said:
"Through the bill, we will ensure that nursing care is free for all who need it, regardless of the context—free at home, free in hospital and, for the first time, free in nursing homes."—[Official Report, 6 February 2002; c 6094.]
That was what we meant. We did not mean assessments with months of delay or waiting lists. At present, some 5,000 people are on waiting lists.
We did not foresee that, or a court process in which the law was not as clear as we all thought it was. All members thought that the legislation was clear and unambiguous. Well, it is clear and unambiguous, but not in the way that we meant it to be.
The intention of Parliament has not been reflected in the legislation, therefore we require to remedy that. We will have to consider whether we do that by amending primary legislation. We will have to examine whether the situation can be dealt with in guidance, which is also not doing what we thought it would do. Everybody thought that they understood what help with food preparation meant—help with a tin opener or tattie peeler if someone could not use one, or help with putting the gas on and off if they could not do that. We thought that that was what that meant but, wilfully or accidentally, it has become much more complicated than that.
That point is reflected in Lord Macphail's judgment—which I think has already been quoted by Mary Scanlon—in which he states that the legislation is "complex" and that there is a labyrinth of material. That is a bad sign in legislation.
I hope that we will welcome Lord Sutherland's review of all aspects of the issue. I know that other aspects have been raised by members of the Health and Sport Committee, who will respond to the review commission themselves.
We want to ensure that the legislation works. If it does not work, it fails not just the Parliament but our vulnerable and frail elderly people. That is the last thing that any of us wants. Let us move on from the nit-picking and get back to the issue at hand: delivering what we intended to deliver.
I welcome the debate because it offers a much-needed opportunity to consider the implications of Lord Macphail's judgment in relation to free personal care. I congratulate the Conservatives on bringing the matter to the chamber for debate, but I record my disappointment that the SNP Government did not think that clarifying the policy of free personal care for older people merited Government time.
I do not have time for an intervention.
Mary Scanlon helpfully set out the context of the debate, but I want to look into it further. We know why William McLachlan, who is a resident of Helensburgh in my constituency, complained to
Members might feel some sympathy for the council. After all, it claims to have had no money. However, it would be a serious mistake to feel such sympathy. The council's actions mask the deliberate and cynical removal of funds from older people. Argyll and Bute Council has consistently spent less than its grant-aided expenditure on older people. Put simply, we give the council the funds but it diverts them to other things—£3 million less in one year; £5 million less in another year; this year, an anticipated underspend of almost £5 million. Previously, the council was controlled by the independents. Now, it is controlled by the independents and the SNP.
I want to look ahead, because I do not think that it is productive to spend time apportioning blame. I understand that the Social Work Inspection Agency will publish a report shortly that will expose Argyll and Bute Council's failings towards older people. It will point to weak leadership, variable quality of provision, underfunding and unmet need. Older people have been comprehensively failed. Apparently, the report will be one of the worst to be seen in a long time. Ministers must intervene in the interests of older people.
I do not think that the SNP is seriously suggesting that it is okay for people to wait for extraordinary lengths of time because a local authority decides to park them on a waiting list and spend the money on something else. However, the SNP had a chance to tell the courts what the Parliament wanted and a chance to protect older people who receive free personal care and those who might enjoy it in the future. Lord Macphail clearly invited the Government to instruct counsel and appear. As others said, he expressed his disappointment that some of the arguments that were made for the Government's non-attendance were trite, and he states that he reached his decision with considerable reluctance.
The only way in which the Parliament and the Government can begin to salvage the situation is
I am in my last 15 seconds.
The Government should stamp out the suggestion from one or two local authorities that they will fund free personal care only in their homes and not in private homes. It should examine the funds that are allocated and the funds that are spent, and it should make local authorities live up to their responsibilities.
I cannot help but think that the SNP was always keen to tell us that it would stand up for Scotland, but when it had the opportunity to stand up for Scotland's pensioners, it ran away. "Disappointing", says Lord Macphail. I think that he is overly generous. I think that it is unforgivable.
I welcome the Cabinet Secretary for Health and Wellbeing's reassurance to the so-called self-funders, of whom there are more than 9,000, but one or two other aspects in her speech were less welcome.
"The last question is: where do we go from here?"
We need to turn that on its head, because surely that should be the first and most important question. Free personal care is an important matter and it will grow even more important in time, particularly because of Scotland's demographics and because many councils will be more cash strapped. It is critical that we get things right to ensure that there is fairness and consistency throughout Scotland.
I did not get the chance to make an intervention and ask the cabinet secretary about the time between assessments and the putting in place of care contracts. She said that that time is minimal, but it was not minimal in Mr McLachlan's case—it was four months. Concerns have arisen throughout the country about waiting lists for assessments and care contracts. It is not good enough to say that the time period is minimal. If the cabinet secretary wants to intervene and tell us exactly what the word "minimal" means, that will be welcome.
I said that in most cases the delay was minimal. In most cases, the delay is less than a month. There is a debate to be had about whether that is minimal enough, but in my remarks I accepted that in some cases, such as the Argyll and Bute case, the delay is much longer than that. Sometimes that is deliberate on the part of the local authority, and that is the issue that we must address for the future. We are addressing the issue through discussions with COSLA and, if necessary, we will address it through revisions to the legislation. Lord Sutherland will give us a view on how we can ensure that we support that work financially with adequate resources.
I refer to a parliamentary question that my colleague Nanette Milne asked last year:
"To ask the Scottish Executive what the average time has been between individuals' community care needs assessments and receipt of payments towards personal care in each year since the introduction of free personal care, broken down by local authority area."
The question was answered by the then minister, Lewis Macdonald, who stated:
"This information is not held centrally."—[Official Report, Written Answers, 30 March 2006; S2W-24348.]
We need to know whether that information is now held centrally and whether the cabinet secretary can guarantee that we will have minimal waiting times rather than saying, "It happens in most cases." I return to the point that was made about the Government's non-intervention in the case. A number of members, including Mary Scanlon, quoted the decision. The response that was given by the Government was, "We were not a party to the case." However, we know that. That is why the judge took the fairly unusual step—in a judicial review—of inviting the Government to take part and, further, attached a personal note to the interlocutor to explain how important that was.
It is all well and good for Christine Grahame to say that the Government's attendance would not have made any difference and that the legislation is unambiguous, but Christine Grahame is not a judge. If the legislation is unambiguous and it is obvious that the Government's attendance would not have made any difference, why did Lord Macphail take the unusual step of inviting it into the process? He states:
"I expressed the view that the Court would derive invaluable assistance in arriving at a decision ... from hearing submissions on behalf of the Scottish Ministers."
He also states:
"the Court would have derived much assistance from submissions made in the public interest which in the circumstances of this case the Scottish Ministers were well qualified and entitled to present. I can only record my disappointment that such assistance has not been afforded to the Court."
I reiterate an earlier speaker's point that the fact that the judge used the word "disappointment" shows that the matter is serious and grave.
The most important thing is that we take the matter forward. We heard a reassurance today for the 9,000 or so self-funders, but we need stronger reassurances and we need to close the loophole in the law so that all our senior citizens get the care that the Parliament intended on day one.
This is the SNP Government's first disgraceful statement of the day—I suspect that I will hear more this afternoon. Unfortunately for the people of Scotland, it is far from being the first disgraceful statement that the SNP has made since it formed its fragile minority Government. The SNP has reneged on its promises on new police officers, student debt and international aid. Since May, it has thrown out more commitments than I care to remember. I have no doubt that if it had not put the sneaky, selfish "Alex Salmond for First Minister" on the regional ballot paper, it would have been unable to gain its precarious one seat—let us not forget, one seat—majority. It would not have been able to let down so many Scots in such a short time. Many of those Scots voted SNP on 3 May on a raft of promises, and now—
Mr Tolson, wait a minute; it is for the chair to decide whether a member is in order.
At the moment, Mr Tolson is still in order, but I suspect that it has been brought home to him that he should speak in terms of the motion and its amendments.
Thank you, Presiding Officer—I had intended to do so in less than 30 seconds' time, had someone had the patience to wait.
As I said, many of those Scots voted SNP on 3 May on a raft of promises, and now the raft is mid-sea, the bindings are breaking and the sharks are circling. It would be funny if it was not so serious. The Government's ineptitude is adversely affecting the lives of many people, some of whom no doubt
"The Executive's failure to effectively monitor the provision of free personal care for the elderly is a huge concern for everyone concerned."
Scotland's pensioners have been failed by an SNP Government that is unwilling or unable to act in the public interest. How can the Government expect to enjoy public trust and confidence in the future when it will not even back up its SNP councillors? Let us not forget that those SNP councillors, who are in administration in Argyll and Bute Council, started this whole furore. They seem to have been seeking a loophole in the law in order to reduce their free personal care costs. However, they have not only damaged the service to some of their most vulnerable constituents, but opened up the possibility of similar claims for the other 31 councils in Scotland. I sincerely hope that the other councils will not seek to move away from the spirit or the legality of the Lib Dem policy of treating all our frail elderly people equally. The elderly are entitled to free personal care whether they are self-funding or placed by the council.
The SNP—in Argyll and Bute Council or here in Holyrood—is letting down people throughout Scotland. When it shirks its responsibility or governs on false promises, that is no laughing matter. Let us hope that, for the sake of the
I thank the Cabinet Secretary for Health and Wellbeing for her clear explanation of the Government's guidance: that it is at the point of acceptance of the contract that free personal care provision must kick in. That Lord Macphail made a literal judgment is unarguable. However, he stated that it is implied that a local authority—Argyll and Bute, in this case—would provide payments in respect of personal care. That implication will have arisen as a result of the Community Care and Health (Scotland) Act 2002 that was drafted by the previous Labour-Lib Dem Administration. If Lord Macphail reached a contrary decision regarding the intentions of Parliament, it is the fault of the Parliament in its establishment of the 2002 act, because it failed to draft it properly in the first instance. Let us remember that, as the cabinet secretary stated earlier, we should be trying to make this system of free personal care work better for all our citizens, even as complexities arise that could or could not have been foreseen at the time of the drafting of the original act.
I welcome the rise in the level of payment from next April that has been announced—the first rise since the inception of the system of free personal care. Ministers of any Government must not micromanage court cases and their decisions, but must bring clarity to the legal system here in this Parliament and not in the courts. Let us work together in this Parliament and move forward on free personal care by supporting the Government's commitment to get the waiting lists down, by getting the elderly the financial support that they need, deserve and have paid for through years of tax-paying, and by ending the nit-picking and arguing over points of order and the little battles among ourselves. The elderly—who deserve their free personal care—should be receiving all our attention.
Free personal care was a policy that was embraced across the political spectrum in this Parliament. Mary Scanlon sat on the Health Committee—that was convened by Malcolm Chisholm—with me, and the committee strongly recommended the introduction of that policy. Regrettably, it has not been defended across the political spectrum and we must grasp the opportunity that today's debate presents. I thank the Conservatives for this chance to send a clear message to the old people of Scotland that we in this Parliament care, and that we will carefully
Mr McLachlan's case demonstrates that at the moment too many people are being short-changed in the implementation of the policy. I worry about the use of the term "free personal care"—personal care should be a guarantee of rights of entitlement for elderly people for those who qualify. Mr McLachlan's family pursued his case, but unfortunately even those who are assessed as requiring care too often do not understand what they can expect, and they do not complain about it because they think that, as old people, they are getting something for nothing. In the community, when an elderly person is assigned 30 minutes of personal care for washing, dressing and preparing food, that should mean 30 minutes—too often, it means 15 minutes, because the carer is travelling by public transport with no allowance made by agencies for travel time to the next person. Carers often have schedules from agencies that, quite frankly, Superman would have difficulty keeping up with. They do not want to complain in case they lose their jobs, and the old people do not want to complain in case they lose their care. That needs to be challenged by a Government that will stand up for the rights of old people.
It is a sad fact that the legal rights of elderly people have, without a doubt, been weakened by recent events. We have made progress over the years with hospice provision and palliative care to allow people to die with dignity, but we have not made enough progress to allow people to live with dignity in their twilight years. We need to change our culture to value the frail elderly and respect their rights, and to enable them to live with dignity. That means driving up standards in care homes, vastly improving training and having a Government that will stand up and represent the needs of our elderly people. However, that just has not happened.
Putting in place the policy of free personal care was not the end of a process—we all said that at the time—but the beginning of a process. If ever proof were needed of the truth of that statement, it is in the recent judgment. We must not fall into the trap of complacency; we must not take our eye off the ball even for a second. Too many vulnerable people depend on us to let that happen.
Today, we are discussing the rights of an increasing but silent majority. They are not standing outside the Parliament with placards or protesting at our surgeries; they are quietly sitting
I thank Mary Scanlon for lodging the motion, as we have had a vital debate this morning. The Community Care and Health (Scotland) Act 2002 was one of the Parliament's flagship pieces of legislation, which enjoyed widespread support. It was received extremely well out there, among the people of Scotland.
Mary Scanlon aptly summed up the nature of the problem that is before us. She gave us the history of what happened to Mr McLachlan, and she told us about the four-month waiting list and about what Lord Macphail did. That took us swiftly to the nub of the debate: should the Government have given evidence? Many of the speeches that we have heard have been about that.
I welcome Nicola Sturgeon's clear commitment to the provision of free personal care. She has been candid enough to admit that there is a waiting list, which is a problem. I also welcome the fact that Lord Sutherland will chair an independent commission into the funding. That is absolutely correct.
In addressing the question whether the SNP Government should have given evidence, Ross Finnie re-emphasised the fact that Lord Macphail invited that contribution. People such as Lord Macphail do not just glibly throw out such invitations; there was some thought behind it.
Christine Grahame was in danger of being an air-raid shelter, bravely defending the Government. However, one is bound to ask why the Government should not, as a precaution, have given evidence, as the intent was clear. There may be an issue over the guidance—I concede that point—but the intent was clear. I feel that the Government was obliged to make a submission to Lord Macphail. Who knows what would have happened if the Government had given evidence?
Richard Simpson correctly pointed out that, on the third day of the hearing, new grounds were presented, which surely made it imperative for the Administration to give evidence on the matter.
Jackie Baillie made two telling points. First, it is true that Argyll and Bute Council consistently spends below its GAE. That is a bad thing and not at all in keeping with what we are trying to
Gavin Brown drew our attention to the demographics of the issue. We have an ageing population, so the issue before us is huge. It is about whether the Government should have given evidence, and it is about taking a workmanlike approach to clearing up the mess. Let us wish our colleagues the best in their endeavours on that front.
The Liberal Democrat amendment is about exerting the will of Parliament. We have a minority Government, and from time to time we can coalesce around something on which we want to give a clear instruction to the Government. In this case, we are asking for a statement to be made in Parliament. We are giving the cabinet secretary a clear steer on this—we are asking her to get the matter sorted out and come back to tell us what is happening.
It has been an interesting debate, and my notes tell me to thank the Tories. That is not something that often appears in my notes, but I acknowledge that they have brought the issue to Parliament timeously. The debate is important and there are concerns out there that must be addressed. We got a sense of that in the debate.
Irene Oldfather reminded us of the context in which the motion was lodged. I am sure that other members are aware that many older people, at times, tune in to debates in the Scottish Parliament. It is important that we give out a message that the Parliament supports their needs and concerns and that we appreciate the significance of the issue. It is welcome that we are debating it this morning.
The central charge that the Government faces is that there is a degree of confusion abroad in Scotland at the moment, of which, largely, you have been the cause.
I ask members to bear with me.
The cabinet secretary would not have felt obliged to write to all the newspapers when Lord Macphail gave his judgment if that judgment was of absolutely no consequence. The fact that you did not take the opportunity to appear in court is the direct cause of the confusion. Lord Macphail said to you, "Come to the court, clarify the issue and we can settle the matter." You chose not to go, so the matter was not settled.
I apologise. I will try to train myself, Presiding Officer.
The cabinet secretary did not take that opportunity, which is what has led to the serious concerns.
It is one thing to make a judgment not to appear in court and to face the consequences of that; however, I am disappointed by your response to the legitimate concerns that have been raised about that, not just by your political opponents, but by others. It is not good enough just to dismiss the judgment as unimportant.
One of my principal obligations is to reassure people when there have been misunderstandings about the ruling. For example, the Liberal Democrat amendment suggests that free care payments for self-funders are ultra vires. That is the opposite of what the judgment says. The judge specifically ruled out that argument. My obligation is to reassure people who have been misled by the misreporting of the implications of the judgment.
My central charge against you—I believe that it is the Parliament's central charge against you, even if you and the Tories vote together—is that the judge asked you to offer clarification in the court but you made the fundamental misjudgment of not responding to that invitation and you are now facing the consequences.
My other charge is that, if the SNP wants to use the name of Government, it must face up to the responsibilities that go with it. The consequence of the cabinet secretary's misjudgment is a lack of clarification. The SNP should not get into a tit-for-tat game of saying, "You were just as bad as we were", because that is clearly not the case. Such tit for tat is beneath any Government.
I remind members that, in February, the then Scottish Government considered whether we should join the action on the basis of a petition from Argyll and Bute Council. In March, we again considered whether we should join the action on the basis of the responses of the ombudsman. On both occasions,
That clarification is now on the record.
It is vital that we move on. Those who have experience of it appreciate that it is in the nature of government that misjudgments are sometimes made. The Government must have the dignity to acknowledge that and the maturity to respond properly. We are not hearing maturity from the front bench today, but we can always hope for the future.
Jackie Baillie made some serious points in her very committed speech. She talked about local authorities not spending their budgets properly on older people's services. The urgency of the current situation, which was caused by the Government missing its opportunity, is critical. However, we are where we are.
Labour is committed to a constructive approach, but the Government must acknowledge the urgency of the situation. We must reassure older people that adequate services can be provided for them. Service providers outside Scotland must know that standards are required and that they are not allowed to shunt their budgets inappropriately. The Government must be constructive. In a week when the Government was desperate to pick fights with Westminster and others, it should for once take the opportunity to do what it was elected to do, which is to serve the people of Scotland.
Today's debate confirms that the free personal care policy continues to have strong support across Parliament and that there is a shared desire to ensure that the policy operates effectively. Many members have focused on the most important issue of resolving the outstanding problems for the sake of older people in Scotland.
The debate has also emphasised the need for greater clarity and understanding of how the policy was, and is, intended to operate. As the Cabinet Secretary for Health and Wellbeing noted, we inherited a number of well-documented problems with the policy from the previous Administration, and they now need to be fixed. They are not new—they have cast a shadow over the policy for the past five years.
The issues that need to be addressed are challenging and not simple, but we are not prepared to sit back and do nothing. That is not an option, which is why, even before we formed the Government, the Scottish National Party gave several unequivocal commitments on free personal care. I am pleased to confirm that we are in the process of delivering on those commitments.
We have invited Lord Sutherland to establish an independent review to investigate the level of resources and their distribution to local authorities. He has confirmed that the review is making good progress and we look forward to receiving his full report in March. However, the issues surrounding the implementation of the policy are not just to do with the funding that is available to local authorities. The independent evaluation report identified various, essentially practical, issues that need to be addressed.
We made a commitment to ensuring that the free personal and nursing care policy is implemented properly throughout the country, and we will deliver on that commitment. To ensure that the policy is implemented consistently and equitably, officials are engaging with local authorities to develop joint proposals. We know that we need to add clarification on issues such as food preparation and waiting lists.
We recognise that full resolution of those issues might require legislation, and we have stated that we are willing to explore that option if it is the best way to fix the problems. I am in no doubt that positive engagement with local authorities will lead to the delivery of a more consistent approach to implementation of the policy, resulting in better outcomes for older people, which I believe everyone in the chamber wants.
Local authorities have made it clear that they are keen to work with the Scottish Government to resolve the problem areas. That can be evidenced through our work with COSLA and our constructive engagement with local authority leaders. Officials and ministers have had several meetings with COSLA and the Association of Directors of Social Work. Another meeting will be held tomorrow, and I will meet Pat Watters again next week to take the issues forward.
We have been actively engaged with the matter; in fact, we are in the middle of the resolution of many of the difficult problems that we inherited, which we are determined to resolve.
We need to tackle the key issue of payments to self-funders in care homes for personal and nursing care. Since the introduction of the policy in 2002, those payments have remained static at £145 per week for personal care and £65 per week for nursing care. We have already
The Scottish Government wants the very best for our older people, who richly deserve it. We want to improve their quality of life and their physical and mental well-being. This is a flagship policy and we should all be proud of it. We will enhance it and will continue to deliver it for many years to come. We want there to be cohesive services, clarity, early interventions and efficient delivery. Taken together, action in those areas will benefit many older people now and in the years to come.
I reassure older people that free personal care is one of our key priorities and that we will do everything necessary to ensure that it will continue on a strong and sustainable footing.
Jackie Baillie will be aware that a report on Argyll and Bute Council's performance will be issued tomorrow. I have already arranged a meeting with the council leaders to have discussions. We are very aware of the issues, which is why we are taking speedy action to ensure that, if there are issues to be addressed, we will discuss with the council leaders what they are and how they are to be addressed.
I end on an important point to do with Lord Macphail's ruling. There has been large-scale misinterpretation of what it means. It puts the obligation on the local authority to begin payments not at the point of assessment but when the local authority has a contract with a care provider. That is consistent with the guidance that the previous Administration issued to local authorities in July 2003, and it reflects the operation of the law as it stands. Local authorities must pay attention to that ruling and we and COSLA will make sure that they are aware of it. Of course, we will take opportunities to come back to Parliament as we continue to make progress with our COSLA partners in sorting out the problems that we inherited with the policy.
It is ironic and regrettable that a policy that has been so frequently proclaimed from all sides of the chamber—as Jamie Stone and Shona Robison reminded us—one of the flagship policies of devolution and evidence of a distinctive
As Christine Grahame and others pointed out, people were led to believe that they had a statutory right to free personal care at the point of assessment of need. Essentially, that was the view taken by the McLachlan family in the Argyll and Bute Council case and by the ombudsman. However, the judgment makes it clear that there is no such right that can be enforced by individuals, and no consequential obligation on any council. The benefit of free personal care, not the right to free personal care, arises only when the council enters into a legal contract with the independent care home provider to pay the fixed personal care contribution towards the overall cost.
In such a situation, the Government's first priority must be to reassure people who live in independent care homes that the decision will not adversely affect them and that there is no question of contributions that were previously made towards care costs being clawed back, or of current funding being withdrawn. I welcome the assurances that the cabinet secretary and the minister have given in that respect.
With regard to people who may be assessed as qualifying for free personal care in the future, we need an undertaking to close the gap between the date of assessment of need and the date on which the obligation to pay arises. If we do not close that gap, councils such as Argyll and Bute Council will be able to operate a de facto waiting list and ration the provision of care. They will not do so out of malice or indifference; they will claim—with some justification—that the policy is not fully funded and that they simply do not have the resources to implement it fully without additional support from the Scottish Government. Therefore, there are funding issues that must be addressed.
In that context, we look forward to the findings of Lord Sutherland and his independent review group. We shall closely examine the Scottish Government's spending plans for the next three years for funding the policy when they are disclosed and the conclusions that Lord
The question that we must ask ourselves in the light of Lord Macphail's judgment is whether we can rely on an assurance from the Scottish Government, acting in concert with our councils, that the gap between the date of assessment and the date of liability to pay will be closed or whether we should amend the legislation to confer on individuals an enforceable statutory right to free personal care and a consequential obligation on councils to pay. If there was such a right, the McLachlans would have been entitled to choose an independent care home provider immediately after a needs assessment had been made, and the council's obligation to pay would have arisen at that point. I am strongly attracted to amending the legislation in that way, as doing so would empower individuals and families to take decisions about the care that they need rather than leave them at the mercy of council bureaucracies and budget manipulations. I congratulate Irene Oldfather on her excellent speech and the support that she seemed to lend to that idea.
We must consider two amendments to the motion, which was lodged by my colleague Mary Scanlon. She was rightly and fairly critical of the SNP Government's approach to the recent court case, as were Gavin Brown and other members. We can be critical on that score, but it is only fair to acknowledge the establishment of Lord Sutherland's independent review group and the commitment to consider implementation and strategic issues, such as food preparation, waiting lists and eligibility criteria. In fairness, that has been done over five months with a view to addressing the problems that have arisen over the previous five years.
In that context, we must consider the amendment that Ross Finnie lodged for the Liberal Democrats, which Richard Simpson supported on behalf of the Labour party. They and their colleagues are no weel. They are afflicted by the condition known as collective amnesia. They have forgotten that, only five months ago, they were in Government. I ask the Cabinet Secretary for Health and Wellbeing whether her miracle-working Government has discovered a cure for collective amnesia. Can she assure us that the condition is covered by her waiting time guarantee so that members can quickly receive the treatment that they badly need? Labour and the Liberal Democrats may wish to adopt the Pol Pot year-zero approach to politics, but we do not forget so easily.
More seriously, as members have said, the Scottish Conservatives lodged the motion to address genuine public concerns, seek