Case in which the Portobello Park Action Group Association sought Judicial Review of the City of Edinburgh Council’s decision to appropriate part of Portobello Park in order to site a new Portobello High School. The action group argued that it was unlawful for the Council to appropriate the park, which is common good land, and even if they were, they were not entitled to do so without the permission of the court.

Although it was unclear exactly when the decision to appropriate the park had been reached, Lady Dorrian found that “at the very latest” the decision had been made in March 2010. As the action group did not bring the case until July 2011, there had been considerable delay which was indicative of taciturnity and acquiescence and Lady Dorrian dismissed the petition on the basis that a plea of mora had been established.

Although the successful plea of mora meant that it was not necessary to reach a judgement on the Council’s decision, Lady Dorrian indicated that if she had been required to do so, she would have found that the Council does have the power to appropriate inalienable common good land.   The Council’s powers in relation to appropriation and disposal of land are contained in sections 73 to 75 of the Local Government (Scotland) Act 1973. Lady Dorrian observed:

“Section 73 of the 1973 Act gives a local authority the widest powers to appropriate for the purpose of any function land vested in them for the purpose of any other function[1]… An equally wide general power of disposal is given under section 74, subject to a requirement to obtain the best price. Section 75 of the 1973 Act does two things. By subsection (1) it makes it clear that the provisions regarding appropriation or disposal of land apply to common good land where there is no question arising as to the right to alienate. Where such a question arises, under subsection (2) the power of disposal is limited, in that a local authority may only dispose of such land with the authority of, and subject to any conditions imposed by, the court. The power to appropriate such land remains unfettered.”

The full judgement is available from Scottish Courts here.

(NB: See appeal to Inner House)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Always nice to get away from things for a while.  Islay gives you a different perspective.

Tax has only featured in three conversations here and as each also mentioned whisky I felt that made it acceptable.  The general sentiment seemed to be: “Islay gives a lot to the UK Exchequer every year and we get very little back in return”.

One person I spoke to told me that: “Islay’s whisky industry contributes approximately £100 million a year to the UK government in excise duty and value-added tax.”  To put that into context, and if that figure is correct,  that is about £30,000 for every man, woman and child on the island.

The main tax stories of the past week have a familiar feel to them.

The debate over devolving complete control over corporation tax to the Scottish Parliament has continued.  This week saw HM Treasury predicting doom and gloom if such a thing were to come to pass.  More ammunition for those wanting to see a Scottish Exchequer.

In a connected issue, Scotland’s First Minister said that the oil industry should be consulted on any new changes to offshore taxation.  The background to this is the proposal by the UK government to increase the supplementary charge on oil production from 20 to 32 per cent.

The other major political tax debate also rumbles on.  That being the top rate of income tax.  This still feels like a “phoney war” but you also get the feeling that a formal start to hostilities might just be round the corner.  The main warring parties in this case being the coalition partners of the UK Government.

This week saw twenty economists (makes you wonder what a group of economists is called), in a letter to the Financial Times, urging the UK Government to drop the top 50p tax rate.  They claim it is doing “lasting damage” to the UK economy.   The top rate is paid at 50p for each pound earned over £150,000 and affects around 310,000 people.  Opponents say cutting the top rate at a time of cuts would be “monstrously unfair” and “phenomenally immoral”.  UK Government Ministers continue to hedge their bets by saying that the 50p rate is temporary and that their policy is to first increase the income tax threshold to £10,000.

Although not as widely reported as the two issues above, I did like the council tax news item from the Courier.  The report explained how funds raised by increasing the council tax on second homes had helped to pay for affordable housing projects across the Perth and Kinross Council area.

In February 2005 Perth and Kinross Council agreed that additional money collected by reducing the council tax discount on second homes and long-term empty properties could be used to support the development of affordable housing.   The Council  reduced the 50% second home discount to 10%.  The reduction covers around 1,800 properties.

Back to the mainland tomorrow!

Detailed plans have been announced for seven councils in the west of Scotland to pool services to save money.  It would mean most of the former Strathclyde region councils sharing support services of finance, payroll, revenues and benefits, HR and IT.  Between 2,000 and 3,400 staff could transfer to the new shared body.

The councils involved are North Lanarkshire, Renfrewshire, East Renfrewshire, Glasgow, Inverclyde and West and East Dunbartonshire.

Reports from the BBC can be found here and the Herald here.  These reports also point out that concerns have been raised with this proposal from a trade union and some councillors.  The main concern appears to be the potential job losses.  The difference in tone in these reports is also interesting.

In part 2 of this series of articles I looked at the Dilnot Commission and its recommendations on how to fund social care in England.

In this article I will look at the: “Independent Review of Free Personal Care in Scotland”, often referred to as the Sutherland Review.  Although not as wide-ranging as Dilnot, the Sutherland Review is important as although it concentrates on Scotland’s Free Personal and Nursing Care (FPNC) policy other connected issues are covered.

Lord Sutherland was asked in the summer of 2007, shortly after the SNP minority administration took office, to carry out an independent review of FNPC.   The findings of the Sutherland Review were published in April 2008.  More information, including a complete copy of the Sutherland Review. can be found here.

Before I look at the Sutherland Review in more detail it is probably useful to remind ourselves what FPNC actually is.   FPNC was introduced across Scotland on 1st July 2002.  Free Personal Care is a legal entitlement for people aged over 65 or over who have been assessed as having personal care needs that require services to be put in place.

Any personal care service which does not fall into this definition will continue to be charged for.   Subject to an assessment by the Social Work Service, Personal Care can include:-

• Personal hygiene (e.g. bathing/showering).
• Continence management (e.g. toileting/bed changing).
• Food and diet (e.g. assistance with food preparation).
• Problems of immobility (e.g. help to move around).
• Counselling and support (e.g. reminder device).
• Simple medication (e.g. creams/ eye drops).
• Personal Assistance (e.g. dressing/going to bed).

Free Nursing Care is similar but is available to people of all ages who are assessed as requiring nursing care services.

The remit for the Sutherland Review was in four parts.

1. The funding available for FPNC.
2. The distribution of resources between local authorities.
3. The impact of the withdrawal by the UK Government of Attendance Allowance from people receiving FPNC.
4. How to ensure that funding for the long-term care of older people is sustainable.

Before I list the Review’s recommendations it is worth noting the concerns that had arisen over the first 5 years of the operation of FPNC.   There are:

1. Questions had been raised about the consistency of provision between different local authorities.   This included the use of waiting lists with different eligibility criteria from one authority to the next.
2. There has been continuing debate about specific issues such as food preparation.
3. Questions had been raised about the practical implications of the legal ruling in the “Macphail” case. [i]
4. Allowances for residential care have not been raised in line with inflation.

The recommendations were set out in a twelve point plan.  

The first 9 recommendations are described as “short-term”.  These recommendations were deemed necessary to stabilise the policy and address difficulties in funding and the variability of provision across the country.

1. Address the Funding Gap.  The Scottish Government should provide additional funding to stabilise the policy in the short-term, i.e. for the next 5 years.    It is estimated that the shortfall in funding is around £40 million.
2. Up-rate fixed allowances.  The Residential and Nursing Care Fixed Rate Allowances should in future be up-rated annually in line with inflation.
3. Standardise assessment and delivery.   There should be clear “entitlement” for all those assessed as needing personal and nursing care, analogous with the NHS, and in line with that, local authorities and their partners should consolidate standardisation of assessment  for and delivery of services, to common processes and clearly stated target times.
4. Establish clear national priorities and outcomes for older people.  There should be a specific reference to securing the wellbeing of older people included within the Scottish Government’s 15 National Outcomes set out in its National Performance Framework.
5. Ensure costs are accurately monitored and reported.  The current failings in information systems identified should be addressed and more accurate systems to collect comprehensive and accurate cost information set in place.
6. Improve local accountability.  A performance framework for long-term care services for older people should be built into the Single Outcome Agreement Model.
7. Address imbalance in funding streams.  The UK Government should not have withdrawn the Attendance Allowance funding in respect of self-funding clients in care homes, currently amounting to £30 million a year.  That funding should be reinstated in the short-term while longer-term work to re-assess funding streams takes place.
8. Clarify expectations.  Renew efforts to improve public information and understanding of the policy.  A clear understanding of shared responsibility needs to be fostered.
9. Address cross-border/boundary issues.  Conclude work to ensure greater consistency in interpretation and application of Ordinary Residence legislation and guidance without further delay.

Recommendations 10 and 11 are described as for the “short to medium-term” and are aimed at securing the policy and keeping it under review within the next 5 years.

1. Review and re-model.  The uncertainty associated with projecting future costs of long-term care means demand must be reviewed and re-modelled regularly and be reflected accurately in future local government finance settlements and capacity planning by local authorities and their health partners.
2. Review public funding arrangements.  There should be a holistic review over the next few years of all the sources of public funding for long-term care of older people, including health, social care and housing support, but also UK Government benefit funding, in particular through Attendance Allowance and Disability Living Allowance.

Recommendation number 12 is for the longer-term and which requires more strategic long-term policy planning and vision.

1. Review public funding arrangements.  Government at all levels should seek to establish a new vision for dealing with the challenge of demographic change, not just looking at long-term care, but also pensions, transport, etc.

There was relatively little initial reaction to the Sutherland Review.   Almost every comment made at that time was a positive one.   The lack of reaction can be explained both by the lack of real opposition to the policy in Scotland and also the financial crisis that had already began when the Sutherland Review was published.   The recent reaction to this policy is therefore of more relevance.

Since April 2008 we have had the Independent Budget Review.   More information on the IBR can be found here.  The IBR recommended that immediate work should be undertaken to review whether all free or subsidised universal services should be retained in their current form.  This is an indirect reference to the policy of FPNC.

We have also had a Scottish General Election.  Helpfully Age Scotland has outlined how each of Scotland’s main political parties how they would prioritise “older people issues” in the next Parliament.   The full report is called “Party Positions for the Scottish Parliamentary Elections 2011”.  [ii]

Scottish National Party

The SNP guaranteed the future of Free Personal Care by filling the £40m shortfall left by the previous administration.   See recommendation 9 of the Sutherland Review.

Labour Party

The Labour party pledged to establish a new “National Care Service” that combines health and care services.   No direct mention of FPNC is made but an indirect mention indicates that the Labour party supports the policy.

Conservative Party

The Conservative party pledged to protect funding for FPNC.

Scottish Liberal Democrats

The Scottish Liberal Democrats pledged their continued support for Free Personal Care.

Two points in particular are worth commenting on.

The first concerns an issue that is not mentioned.  The UK Government’s decision to withhold Attendance Allowance funding due to the introduction of FPNC in Scotland.  That issue is of course dealt with in the Sutherland Review.  Again see recommendation 9 of the Sutherland Review.

The second is the Labour party policy of a “National Care Service”.   Also interested to note that the Labour Party had appointed an expert group , including Age Scotland Chief Executive and former Labour party councillor in London and Campaigns Officer for the Labour Party in London, David Manion.

Also interesting to note that the policy seems broadly similar to what has been proposed by the “Christie Commission”.   More on the funding of the Christie Commission can be found here.

Since the Scottish General Election COSLA has called for a review of FPNC.  In response, both Henry McLeish, First Minister when FPNC was introduced, and Age Scotland have argued strongly for continuing the policy.  The President of COSLA has also in a personal capacity called for FPNC to means-tested.   [iii]

Conclusion

The world we live in seems very different from April 2008.  Public spending in Scotland is declining after many years of year on year increases.  FPNC was the flagship policy of the first Scottish Executive when introduced in 2002 and is still well supported by our main political parties.  How long will this continue remains to be seen.

In my next article I will look at some of the issues raised in the Sutherland Review in more detail and in particular the UK Government’s withholding of the Attendance Allowance funds.

James Aitken

Legal Knowledge Scotland

The landlord registration scheme had its origins in the Antisocial Behaviour (Scotland) Act 2004 which required registration of all private landlords.  As a result of which, private landlords have been required to register with their local authority since the end of April 2006.

The stated intention of the requirement is to ensure that all private landlords meet minimum standards and to remove the worst landlords from the sector.

The Scottish Government has commissioned and published an Evaluation of the Impact and Operation of Landlord Registration in Scotland.

The research (carried out by DTZ) includes the following findings:

• The registration scheme has had some impact in meeting its goals of raising management standards in the private rented sector with private sector landlords now more aware of their there obligations.
• Registration has not succeeded in  removing  the ‘worst’ landlords from the sector
• Local authorities have adopted a ‘light touch’ approach to implementing the scheme with advice and information being the main focus in encouraging landlords to join.
• Not all local authorities have landlord and tenant awareness strategies in place and not all local authorities have established performance and monitoring systems.
• Overall the view was that there are few sanctions available when landlords do not comply.
• Whilst there is evidence of effective administration and sound management within local authorities, a simpler and more effective administration system would enable greater levels of investigation and enforcement activity.

The following recommendations were also included:

• The Scottish Government should be explicit about the purpose of the landlord registration and this should be communicated clearly to local authorities, landlords, private sector tenants and the general public.
• Local authorities should develop landlord and tenant awareness raising strategies where not already in place and should develop more systematic performance and monitoring systems.
• Local authorities should carry out random sample checks on landlords to check that information on application forms is accurate.
• The landlord registration scheme should be more formally constituted with clear levels of responsibility demarcated for both the Scottish Government and local authorities.
• Local authority guidance should be updated and clarified.

The report is available from the Scottish Government here.

Appeal case concerning Brightcrew’s application for a premises licence in respect of an adult entertainment venue known as “Spearmint Rhino” on Drury Street in Glasgow.

The City of Glasgow Licensing Board (the Board) refused Brightcrew’s application on the basis that the Board considered the granting of the licence would be contrary to two of the licensing objectives contained in the Licensing (Scotland) Act 2005[1]. Specifically, it was considered contrary to ‘preventing crime and disorder’ and ‘protecting and improving public health’[2].

In coming to this conclusion the Board referred to several alleged breaches of its “Code of Practice relative to the provision of dance entertainment in licensed premises”.  The Code of Practice had no statutory basis but the Board would generally expect compliance with it and would take breaches of it into account when considering the suitability of premises for the sale of alcohol.

Conduct by Brightcrew which was identified by a licensing officer as being in breach of the code included:

1. a member of staff being unaware of the location of the risk assessment for the premises;
2. the issuing of advertising flyers which failed to depict the dancers suitably clothed;
3. a drinks promotion which had conflicted with the  Board’s policy on “happy hours” (which was withdrawn after the licensing officer’s views were expressed to the local manager)
4. two dancers removing their bikini bottoms and exposing their genital area[3]; and
5. several dancers making “considerable contact” with patrons.

Brightcrew argued[4] that, in taking the view that any breach of its Code of Practice could lead to deprivation of the licence to sell alcohol, despite the lack of any objective effect of the breach on the licensing objectives relating to the sale of alcohol, the Board had made a material error of law.

An Extra Division of the Inner House allowed the appeal. The essential function of the 2005 Act is that of the licensing of the sale of alcohol.  Since the licensing with which the Act is concerned is the licensing of the sale of alcohol, inconsistency with a licencing objective means inconsistency flowing from the permitting of the sale of alcohol on the premises. Whilst the objectives contained in the Act were desirable in a general sense, that did not empower a licensing board to insist on matters which, while perhaps unquestionably desirable in that sense, are nevertheless not linked to the sale of alcohol.

In other words, the Board was not entitled to refuse to grant a licence on the basis of breaches of its Code of Practice where the provisions breached did not relate to the sale of alcohol.

A full report of the decision is available from Scottish Courts here.

The scenes shown in the BBC Panorama programme were truly shocking.   To date 12 people have been arrested in connection with the inquiry being conducted by the police.

The Panorama programme was contacted by whistleblower Terry Bryan who alerted the BBC with his concerns about some staff.  Mr Bryan, a senior nurse, acted after his concerns were not followed up by the home’s management or the Care Quality Commission (CQC).

The CQC published its report yesterday on its inspection of services provided at Winterbourne View.  A independently-led serious case review has already been announced by the CQC.

A number of concerns have already been raised both regarding the report published yesterday and the larger question of whether the CQC is the right body to conduct a review of the care system in England.

One point on the report published yesterday by the CQC.  The CQC defence in this matter seems to be that Castlebeck, the owners of Winterbourne View – now closed, misled them.  That is simply not good enough.

The report and a press release from the CQC can be found here.

An article from the Guardian dated 7 June can be found here.

A report from BBC news on yesterday’s report can be found here.

Background

This appeal concerns the question of whether the Royal Borough acted unlawfully in seeking to amend Ms McDonald’s care package by substituting her night time carer with provision of incontinence pads or absorbent sheets when Ms McDonald was not in fact incontinent.

This case shows how cruel ill health can be.   Some 30 years ago Ms McDonald was the prima ballerina of Scottish Ballet.  In 1999 Ms McDonald suffered a stroke leaving her with severely limited mobility.  She also suffers from a small and neurogenic bladder which means she has to urinate two or three times a night.  Up until now she has dealt with this by using a commode with the help of a carer provided by the Royal Borough as part of her care package.

In November 2008 the Royal Borough proposed instead that the appellant should use pads, avoiding the need for a night-time carer.  The Royal Borough argued that this would provide Ms McDonald with greater safety (preventing the risk of injury whilst she is assisted to the commode), independence and privacy and in addition reducing the cost of her care by some £22,000 per annum.  Ms McDonald’s care plan was reviewed in November 2009 and April 2010.

Ms McDonald seeks to challenge this proposal.  Ms McDonald maintains that the thought of being treated as incontinent (which she is not) and having to use pads is an intolerable affront to her dignity.

Earlier judgments   

The High Court dismissed Ms McDonald’s arguments and held that it was open to the Royal Borough to meet Ms McDonald’s need, identified in her needs assessment as “assistance to use the commode at night”, in a more economical manner by the provision of pads.

The Court of Appeal disagreed holding that the clear language of Ms McDonald’s needs assessment could not be extended in a way proposed by the High Court and at the time proceedings were commenced the Royal Borough was in breach of its statutory duty.  However, as the Royal Borough did not implement the proposal outlined above and had reassessed Ms McDonald’s care plan Ms McDonald had no substantial complaint.

Supreme Court judgment

By a majority of 4-1 Ms McDonald’s appeal was dismissed.

Reasoning

Ms McDonald put forward four arguments (The Supreme Court’s reasoning is outlined below each heading):

1.       The care plan reviews did not in fact contain a reassessment of her needs

In accordance with the “Fair Access to Care Services” guidance issued by the Secretary of State, the care review plans could and did in fact incorporate a review of Ms McDonald’s needs.  Care plan reviews are usually drafted by social workers and not lawyers and thus should be construed in a practical way.

2.       The decision breached Ms McDonald’s rights under article 8 of the European Convention of Human Rights    

Ms McDonald had not established interference with her article 8 rights.   However, even if article 8 interference was established, it would be justified under article 8(2) on the ground that it is (a) necessary for the economic well-being of the Royal Borough and the interests of other service-users and (b) a proportionate response to Ms McDonald’s needs by affording her greater privacy and protection from injury.

3.       The decision was taken in breach of section 21 of the Disability Discrimination Act 1995  

Under section 21 the Royal Borough may not operate any “practice, policy or procedure” which makes it impossible or unreasonably difficult for disabled persons to receive any benefit conferred on them.   Ms McDonald failed to show that the Royal Borough’s decision could properly be characterised as “practice, policy or procedure” and thus the Royal Borough did not breach its second 21 duty.   Even if that were not so, the Royal Borough’s acts would have been justified as constituting “a proportionate means of achieving a legitimate aim” within the mean of section 21D(5) of the 1995 Act.

4.       The Royal Borough failed to have due regard to the need to promote equality of opportunity of disabled persons under section 49A of the Disability Discrimination Act 1995 (now superseded by comparable provisions in the Equality Act 2010)

Where the Royal Borough is discharging its functions under statutes which expressly direct its attention to the needs of the disabled persons, it may be entirely superfluous to make express reference to section 49A of the 1995 Act.  It would be absurd on the facts of the present case to infer a breach of section 49A from an omission to refer to that section in any of the Royal Borough’s documentation.

Dissenting opinion  

The dissenting Justice would have allowed Ms McDonald’s appeal on a different basis outlined by Age UK in its intervention, namely that it was irrational for the Royal Borough to characterise Ms McDonald as having a need different from one she in fact has.

A full report of the decision is available from the Supreme Court here.

Two local authorities in central Scotland are set to begin sharing more services.  Clackmannanshire and Stirling councils have been jointly running education and social service departments since March 2011.  Now, a report due to be submitted on 11 August will recommend that the authorities begin sharing IT and personnel services as well.

The report from the BBC can be found here.