I The Ombudsman

"The primary necessity is the impartial investigation of complaints. It has always been possible for the government to commission a special inquiry, but this is far too ponderous and expensive a process for the ordinary run of grievances. What every form of government needs is some regular and smooth-running mechanism for feeding back the reactions of its disgruntled customers, after impartial assessment, and for correcting whatever may have gone wrong. Nothing of this kind existed in our system before the establishment of the Parliamentary Commissioner for Administration (or ombudsman) in 1967, except in very limited spheres. Yet it is a fundamental need in every system. This was why the device of the ombudsman suddenly attained immense popularity, sweeping round the democratic world and taking root in Britain and in many other countries, as well as inspiring a vast literature. [ . . . ]

"Ombudsman is a Scandinavian word meaning officer or commissioner. In its special sense it means a commissioner who has the duty of investigating and reporting to Parliament on citizens' complaints against the government. An ombudsman requires no legal powers except powers of inquiry. In particular, he is in no sense a court of appeal and he cannot alter or reverse any government decision. His effectiveness derives entirely from his power to focus public and parliamentary attention upon citizens' grievances. But publicity based on impartial inquiry is a powerful lever. Where a complaint is found to be justified, an ombudsman can often persuade a government department to modify a decision or pay compensation in cases where the complainant unaided would get no satisfaction. For the department knows that a public report will be made and that it will be unable to conceal the facts from Parliament and the press.

"The essence of the ombudsman's technique is to receive the complaint informally, to enter the government department, to speak to the officials and read the files, and to find out exactly who did what and why. No formal procedure is involved at any stage, nor is any legal sanction in question."

"The investigation and resolution of individual complaints remains the staple diet of the office's work, the evidential base against which patterns of good and bad practice can be mapped. To that task I increasingly bring the sort of 'strategic' approach expected of any modern Ombudsman system: early diagnosis, appropriate levels of response (not the 'Rolls Royce approach' for its own sake), the ability to use the intelligence yielded to aid future prevention as well as immediate cure. The Ombudsman is not a court or tribunal, certainly not a court or tribunal familiar to lawyers of a common law jurisdiction. Ombudsmen and courts are like chalk and cheese: superficially similar, but of very different texture and ingredients. Liberated from the burden of imposing enforceable remedies, with wide discretion, the Ombudsman is free to establish a very different relationship between the disputing parties, based upon trust and shared understandings, not formal compliance."

"Let me start with the fact that Parliament has not created a right of appeal against the findings in a Local Commissioner's report. It is this very fact, coupled with the public law character of the ombudsman's office and powers, which is the foundation of the right to relief by way of judicial review.

Next there is the suggestion that the council should issue a statement disputing the right of the ombudsman to make his findings and that this would provide the council with an adequate remedy. Such an action would wholly undermine the system of ombudsman's reports and would, in effect, provide for an appeal to the media against his findings. The Parliamentary intention was that reports by ombudsmen should be loyally accepted by the local authorities concerned. This is clear from section 30(4) and (5) [of the 1974 Act], which require the local authority to make the report available for inspection by the public and to advertise this fact, from section 31(1), which requires the local authority to notify the ombudsman of the action which it has taken and proposes to take in the light of his report and from section 31(2), which entitles the ombudsman to make a further report if the local authority's response is not satisfactory.

Whilst I am very far from encouraging councils to seek judicial review of an ombudsman's report, which, bearing in mind the nature of his office and duties and the qualifications of those who hold that office, is inherently unlikely to succeed, in the absence of a successful application for judicial review and the giving of relief by the court, local authorities should not dispute an ombudsman's report and should carry out their statutory duties in relation to it."

I note that SPSOA does not have any provisions equivalent to section 31(1) and (2) of the 1974 Act. As I have mentioned, SPSOA only makes provision for a "special report" where a report under section 15 finds that the person aggrieved has sustained injustice or hardship and it appears to the Ombudsman that the injustice or hardship has not been, or will not be, remedied (section 16).

"I see nothing about the Commissioner's role or the statutory framework within which he operates so singular as to take him wholly outside the purview of judicial review."

II Free personal care: the statutory framework

"(1) It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate, and such assistance may [ . . . ] be given in kind or in cash to, or in respect of, any relevant person."

"(1) Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority -

(a) shall make an assessment of the needs of that person for those services; and

(b) shall then decide, having regard to the results of that assessment, and taking account -

(i) where it appears to them that a person ('the carer') provides a substantial amount of care on a regular basis for that person, of such care as is being so provided; and

(ii) 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),

whether the needs of the person being assessed call for the provision of any such services."

Subsection (1)(b) was substituted by section 8 of CCHSA. As originally inserted by the National Health Service and Community Care Act 1990, section 55, it read:

"(b) having regard to the result of that assessment, shall then decide whether the needs of that person call for the provision of any such services."

"(1) Without prejudice to section 12 of this Act, a local authority shall

(a) provide and maintain; or

(b) make such arrangements as they consider appropriate and adequate for the provision of

suitable residential accommodation where nursing is provided for persons who appear to them to be in need of such accommodation by reason of infirmity, age, illness or mental disorder, dependency on drugs or alcohol or being substantially handicapped by any deformity or disability."

"(1) [ . . . ] a local authority providing a service under this Act [ . . . ] may recover such charge (if any) for it as they consider reasonable.

(1A) If a person -

(a) avails himself of a service provided under this Act [ . . . ]; and

(b) satisfies the authority providing the service that his means are insufficient for it to be reasonably practicable for him to pay for the service the amount which he would otherwise be obliged to pay for it,

the authority shall not require him to pay more for it than it appears to them that it is practicable for him to pay."

Subsection (1B), however, was inserted by section 1(6) of CCHSA. It provides:

"(1B) Subsections (1) and (1A) above do not apply as respects any amount required not to be charged by subsection (1) of section 1 of the Community Care and Health (Scotland) Act 2002 (asp 5) (charging and not charging for social care) or required to be charged or not to be charged by virtue of subsection (4) of that section."

Subsections (2) and (3) then continue:

"(2) Persons [ . . . ] for whom accommodation is provided under this Act [ . . .] shall be required to pay for that accommodation in accordance with the subsequent provisions of this section.

(3) [ . . . ] accommodation provided under this Act [ . . . ] shall be regarded as accommodation provided under Part III of the National Assistance Act 1948

[ . . . ]"

In Part III of the National Assistance Act 1948 ("the 1948 Act"), section 22 requires a local authority to fix a standard rate of charges for accommodation and to assess a person's ability to pay. Thus, the effect of section 87(3) is that a local authority must charge for accommodation which is a facility provided or secured by them in terms of section 12(1). Section 87(1B), however, is now inserted.

"(1) [ . . . ] a local authority are not to charge for social care provided by them (or the provision of which is secured by them) if that social care is -

(a) personal care as defined in section 2(28) of the Regulation of Care (Scotland) Act 2001 (asp 8);

(b) personal support as so defined;

(c) whether or not such personal care or personal support, care of a kind for the time being mentioned in schedule 1 to this Act; or

(d) whether or not from a registered nurse, nursing care."

The definition of "personal care" in section 2(28) of the 2001 Act is in these terms:

"'personal care' means care which relates to the day to day physical tasks and needs of the person cared for (as for example, but without prejudice to that generality, to eating and washing) and to mental processes related to those tasks and needs (as for example, but without prejudice to that generality, to remembering to eat and wash)."

"'social care' means, subject to subsection (2) below, a service provided -

(a) under the 1968 Act [SWSA]; or

(b) [ . . . ]

to an individual by a local authority or a service the provision of which to an individual, under the 1968 Act [ . . . ], is secured by a local authority."

Subsection (2) provides:

"(2) In this Act, 'social care' does not include a service which (or so much of a service as) consists of the provision of accommodation; but in the definition of the expression in subsection (1) above, the references to a service being provided are to the provision of any other form of assistance (including, without prejudice to that generality, the provision of advice, guidance or a material thing)."

"For the purposes of section 2 of the Act [CCHSA], accommodation provided to or provision of which is secured for an individual by a local authority under the 1968 Act [SWSA] or section 25 (care and support services etc) of the 2003 Act [the Mental Health (Care and Treatment) (Scotland) Act 2003] does not include -

(a) the first £145 per week of care of a kind mentioned in paragraphs (a), (b) and (c) of section 1(1) of the Act."

Personal care is mentioned in paragraph (a). Regulation 3 provides that the requirement in section 1(1) not to charge for personal care applies only where the person for whom the local authority has a duty or power in terms of SWSA is a person aged 65 or over.

Identifying the intention of Parliament

"Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provisions or assessing the 'proportionality' of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the 'mischief') at which the legislation is aimed. This may throw light on the rationale underlying the legislation."

"6.28 Against this background we have therefore sought to consider, from first principles, where the balance between collective public provision and personal responsibility should lie in relation to paying for long-term care. What follows represents our analysis and our conclusions, in respect first of residential care and secondly of domiciliary care.

6.29 In principle, people in long-term care incur three kinds of cost (excluding the kind of therapeutic care which is provided by the NHS and is free in any event):

1. living costs, (food, clothing, heating amenities and so on);

2. housing costs (the equivalent of rent, mortgage payments and

council tax) and;

3. personal care costs (the additional cost of being looked after arising from frailty or disability).

6.30 It is admittedly a fine point in some cases as to the category into what particular costs should fall. [ . . . ] The key point is that no distinction is currently drawn in principle between these costs in applying the means test. Where the operation of means-testing results in people having to meet some or all of residential or nursing home fees, they are regarded in principle as contributing equally to all three cost elements of the fees. This system is indiscriminate and illogical.

6.31 We judge instead that a proper distinction should now be drawn for funding purposes between the three cost elements in long-term care. A case has been put to us that the state should meet all three elements, as it does for people in hospital. We do not think however, that this is desirable or necessary. Nor would it be a proper use of limited public funds. People who receive care at home have to meet their living and housing costs themselves. In our judgement therefore people should be fully responsible for elements (1) and (2), that is, their living and housing costs while in residential care, subject to the normal mechanisms for supporting income, subject to a means test if help is required. These are legitimate items for which people may want to save in their old age.

6.32 The costs of personal care as such are however quite different. These are the costs which, unpredictably and through no fault of their own, old people have to incur when unfortunately they can no longer be looked after at home or cannot be sent home after hospital treatment. They reflect the true risk and 'catastrophic' nature of needing long-term care.

In our judgement it is right for the state to exempt personal care from means-testing altogether. This is our key recommendation."

"6.37 The Commission's main recommendation is that personal care should be available for those individuals who need it, after an assessment. (Recommendation 6.4)"

"The overwhelming message from stakeholders in community care supports the principle of making available personal care services free at the point of use as recommended in the Sutherland Report."

"There have been many significant developments in community care in this Parliament's lifetime, and the Community Care and Health (Scotland) Bill marks a further milestone in the Executive's commitment to better community care services in every part of Scotland. Just over a year ago, Susan Deacon set out to the Parliament the agenda of joint management, joint resourcing, joint working, better home care, more flexible services, free nursing for our older people and help for all Scotland's carers. As members know, free personal care was added to that agenda in January.

The Community Care and Health (Scotland) Bill is the legislative framework for delivering that agenda. [ . . . ]

Equity and fairness are the final two principles on which the bill is built. Because of those principles, the bill gives ministers powers to introduce free nursing care. No longer will someone in a nursing home have to pay for the same nursing care that would be received free in hospital or at home. For the same reasons, the bill also gives ministers powers to introduce free personal care to bring to an end the current situation in which an elderly person with cancer receives free personal care, whereas someone with Alzheimer's has to pay for the same care. [ . . . ]

Let us consider the important changes and tangible benefits that the bill will bring. It will mean that the Executive will be able to tackle existing inequities surrounding care for older people by introducing free nursing care and free personal care. We will ensure that nursing care is finally 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. In the same way, we will ensure that personal care is free for all Scotland's oldest people: the dementia sufferer and the stroke victim; those at home as well as those in care homes."

"The system will be implemented in full. There might well be people who qualify but who do not claim until a later date, and they will not get free personal care until such time as they make their claim. For example, those who are self-funders and are in homes will have the payments made in full whether or not they are assessed. An assessment will need to be done for anyone new coming into the system. Such people will receive the appropriate payments from the date of the assessment decision."

The term "self-funder" was not defined in the course of the argument, but it appears that a self-funder is a resident in a care home whose accommodation there has been provided under a private arrangement between the care home and the resident or someone, usually a relative, acting on his or her behalf who has arranged the placement and meets the fees himself or herself. In other words, a self-funder is a privately placed resident who is either a party to a contract with the care home or is resident there as a result of a contract covering his or her residence which has been made by a representative or relative.

"[7] The first issue which I must determine is whether the Act confers any right to community care services upon an individual in any circumstances.

[ . . . ] The terms of sec 12A(1) are such that in appropriate individual cases, where the local authority considers someone may be in need of community care services, the local authority is required to undertake an assessment of the needs of that individual for such services. Depending upon the results of that assessment the local authority requires to decide whether the needs of the individual call for the provision of such services. [ . . . ] I am of the opinion that once a local authority has determined that the needs of an individual in their area require the provision of particular community care services, such as residential nursing home care, and that his or her needs cannot be met in any other way, even in the short to medium term, the effect of sec 12 is to impose a duty on the local authority to provide the necessary assistance to satisfy the individual's needs. In short the local authority must find a place in a residential nursing home for the individual in such circumstances. It seems to me that the clear intention of Parliament was that where a local authority had undertaken an assessment of needs and had decided that the needs of an individual called for the provision of certain community care services, the local authority had an obligation to provide such services. [ . . . ]

III The facts
Mr McLachlan's complaint

"On 1 July 2002 free personal care is being introduced for people aged 65 and over [ . . . ]

If you fully fund your own care you will be entitled to a contribution of £145 a week towards the cost of personal care."

Having placed Mr McLachlan Senior in the care home on or about 5 February 2006 and having failed to obtain from the Council any contribution towards the cost of his father's personal care, Mr McLachlan Junior made several complaints to the Scottish Executive Health Department (SEHD). He received a number of responses, the essence of which appears from a letter dated 3 April 2006 (no. 7/8 of process):

"I understand that your father has been assessed as requiring free personal and nursing care payments but has been advised by Argyll & Bute council that it is not in a position to make them. Local authorities have a duty under the Social Work (Scotland) Act 1968 to assess the community care needs of people who appear to need them and decide, in the light of the assessment, whether they should arrange any services and, if so, which services. As my colleague advised in his earlier response local authorities have been provided with the funds that were asked for, but ultimately it is the responsibility of local authorities to manage their resources to provide the services which they have a statutory duty to deliver. Lewis Macdonald, the Deputy Minister for Health and Community Care, has previously expressed concerns about those local authorities that appear to be operating waiting lists and he has asked officials to pursue this matter with them.

I realise that in the short term this is not a satisfactory answer for you and so I suggest that if you haven't already done so you should write to Douglas Hendry, the Director of Social Work at Argyll & Bute council to make an official complaint. [ . . . ] If you are not satisfied by the response you receive you can then follow this up by complaining to the Scottish Public Services Ombudsman [ . . . ]"

"The leaflet outlining arrangements for free personal care gives the impression that funding for free personal care is readily available for everyone. In reality the Council are awarded a fixed amount of money from the Scottish Executive to Social Work to meet all of their commitments.

At the time your husband placed himself in [the care home] all of the funding allocated for free personal care was committed. I am sorry to tell you that this is still the case today.

Your husband is on a priority list along with a number of other people awaiting free personal care. All of the people on the priority list are reviewed weekly and as funding becomes available it is awarded on a priority needs basis."

"I refer to [Mr McLachlan Senior] and advise that, with effect from 28 June 2006, this Department will contribute £145.00 per week towards Mr McLachlan's personal care costs, on behalf of the Scottish Executive.

The above contribution will be paid directly to [the care home], who should reduce Mr McLachlan's charges accordingly."

Mr McLachlan Junior's complaint about the Council therefore came to be that they had failed to provide a service to his father "between 6 February 2006 and June 2006, in that they did not provide Council funding for his personal care in line with Government Policy." That is the complaint which the Ombudsman upheld. His complaint about the Scottish Executive was that they had failed to ensure that the Council provided a service. The Ombudsman did not uphold that complaint.

"Funding for the policy [of free personal care] is made available to the Council through Scottish Executive Grant Aided Expenditure (GAE) funding. GAE represents the level of resources which the Scottish Executive considers the local authorities require to cover expenditure incurred in delivering services. The overall amount is sub-divided into a GAE for each local authority service and calculated individually for each local authority. This does not necessarily reflect the actual sums required."

"Local eligibility criteria and priorities

18. Local authorities will need to have in place agreed eligibility criteria for assessments of need and priorities for the provision of and access to services based on need. [ . . . ] Following a needs assessment, payment towards personal care should commence when the authority is in a position to arrange or provide the required services. [ . . . ]"

In Section 5, headed "Payment mechanisms", paragraph 1(k) states in part:

"k) Start date of payments and retrospective payments

From 1 July 2002, payments will commence once the [ . . . ] personal care service is being provided [underlining in original]. It does not start before and will not be backdated, eg to the date of referral or assessment."

"14. The Council told me that in 2004/5 it spent £1.968m more on Free Personal Care than the GAE allocation and £2.022m more in 2005/6 - it plans to spend £1.491m more in 2006/7. The Council informed me that the impact of this and consequent pressure on other parts of the social work services had led to a moratorium on spend across all social services within the Council. From December 2005 this impacted on a number of clients waiting for FPC funding who were placed on a priority waiting list to be dealt with as funds became available. An allocation of funds was made available in May 2006 and priority was given to those clients where there was a delay in discharge from hospital because of the lack of funds. In June 2006 further funds were allocated and this sum was in part allocated to [Mr McLachlan Senior]. The Council told me that throughout the operation of the priority waiting list, staff reviewed the status of all those on the list on a weekly basis to ensure that any emergency situations caused by a change in circumstances were identified and addressed immediately.

15. The Council referred to their agreement with a letter written by the Convention of Scottish Local Authorities (COSLA) to the Scottish Parliament Health Committee in February 2006 [no. 6/6 of process] which stated, with respect to section 18 of the Guidance, that:

'Local Authorities are clear on their interpretation of this point. Services can only be provided when the resources are available to meet the assessed needs - in other words when the local authority is in a position to arrange or provide these services. The cash limited nature of this budget sets the boundaries.'

The letter further noted that, just as there were waiting lists for health services because in part of cash-limited budgets, so there would be for social services.

16. The Council stated that it had concluded that as it had no funds to cover the costs of FPC it considered that it was not in a position to arrange or provide the service (as stated within Part 1, section 18 of the Guidance) and, therefore, was not obliged to make such a payment or to backdate such a payment in terms of Part 5, section 1(k) of the Guidance."

"Free personal and nursing care is available to people aged 65 years and over who have been assessed as requiring these services.

The funding for the policy is given to the local authorities as part of their Grant Aided Expenditure (GAE) settlement. It should be noted that GAEs are not budgets or spending targets. [ . . . ] It is then up to each Council to decide how best to allocate these resources based on their local needs and priorities.

I would like to assure you that the policy is sufficiently funded with increases each year."

"(a) Conclusion
22. I note that Council staff took reasonable steps to ensure that no excessive hardship occurred for those clients affected by the restriction on payments and regularly considered the needs of each such affected person. The Council operated its waiting list in accordance with the standards established by Lord Hardie [in MacGregor v South Lanarkshire Council 2001 SC 502] and as expected by the SEHD. The Council also endeavoured to respond promptly and appropriately to [Mr McLachlan Junior's] complaint. The Council policy operated in a consistent and clear manner and I do not consider there was maladministration in this complaint. However, there remains the question of whether the Council failed to provide to [Mr McLachlan Senior] a service which they were obliged to provide.

23. The SEHD told [Mr McLachlan Junior] that the FPC policy was sufficiently funded. There is a clear indication in the SEHD response [of 3 April 2006, no. 7/8 of process] that the Minister for Health and Community Care had previously expressed concern about those local authorities that appear to be operating waiting lists. There is no evidence in the legislation, regulation or public information that it was the intention of the Scottish Parliament that FPC funding would be rationed or only automatically be made available to those who qualified and fortuitously applied before monies were otherwise committed.

24. I, therefore, conclude that there was a statutory duty placed on the Council by the Community Care and Health (Scotland) Act 2002 to provide funding to [Mr McLachlan Senior]. I do not accept that the Council could not 'arrange the provision of the service' simply because it could not pay for it as the provision and funding of services are two distinct issues. The suggestion is made both from the Council and the SEHD that Lord Hardie's judgement allowed for waiting lists for FPC and that Ministers expected Councils to follow guidance with respect to such waiting lists. This is indeed correct with respect to the provision of services but cannot be extended to apply to the separate issue of the funding of a policy particularly a policy not in existence at the time of Lord Hardie's judgement.

25. Part 5, section 1(k) of the Guidance refers to payments commencing from the time the personal care service is being provided and not before (emphasis in the Guidance). I consider that the personal care service in question was being provided by the Care Home from 5 February 2006 when [Mr McLachlan Senior] became a resident there and that there was, therefore, an obligation on the Council to pay funds from that point.

(a) Recommendation
26. The Ombudsman recommends that the Council calculate and pay to [Mr McLachlan Senior] the equivalent sum to the missed payments for Free Personal Care from the date of the original notification of eligibility on 6 February 2006 to the date when payments actually began."

"(1) [ . . . ] a local authority are not to charge for social care provided by them (or the provision of which is secured by them) if that social care is -

(a) personal care [ . . . ]"

The Ombudsman interpreted section 1 of CCHSA as imposing on the Council a positive obligation to make payments in respect of personal care. She said at paragraph 24 of her report, "I, therefore, conclude that there was a statutory duty placed on the Council by the Community Care and Health (Scotland) Act 2002 to provide funding to [Mr McLachlan Senior]."

"The Scottish Ministers have considered carefully Lord Macphail's suggestion that they might wish to make submissions in response to the petitioners' arguments. Having taken advice, the Scottish Ministers have decided that they do not wish to enrol a motion for leave to enter the process.

The Scottish Ministers' reasons are essentially the same as those which militated against their participating in the proceedings when the petition was first intimated to them. 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 Scottish Ministers could give the court their own view of the legislation, but they do not consider that it would be appropriate in the circumstances. The interpretation of legislation is ultimately a matter for the courts."

"[3] The principal argument presented for the Council was that the Ombudsman had erred in law in her interpretation of the Community Care and Health (Scotland) Act 2002 (2002 asp 5) ("CCHSA") and the Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002 (SSI 2002, No. 303) ("the Regulations"). The issue between the Council and the Ombudsman is whether the effect of CCHSA and the Regulations is to provide that where a person aged 65 or over is in accommodation which includes an element of personal care, a local authority is obliged to provide funding for the personal care element of his or her accommodation. It is the view of the Ombudsman that such an obligation is imposed, while the Council maintain the contrary. At the first hearing of the petition they argued (1) that the legislation only provides that a local authority is not entitled to charge for personal care, and (2) that the legislation applies only where the local authority is providing the accommodation: here, the accommodation had been provided by Mr McLachlan Senior's family.

"[The bill] will mean that the Executive will be able to tackle existing inequities surrounding care for older people by introducing free nursing care and free personal care."

Other arguments
[92] I shall begin my review of the Council's other arguments by noticing briefly a submission by their junior counsel which was, as I understood it, that it was illogical to interpret section 1 of CCSHA as imposing a positive duty which the Council could not afford to perform as they had insufficient funds. In my view this argument is unsound. A statutory duty cannot be binding only to the extent that the person on whom the duty is imposed accepts that he is capable of fulfilling it. If a local authority, in fulfilment of its duties under section 12A(1) of SWSA, assesses a person's needs and decides that his or her needs call for the provision of any community care service, the person's entitlement to the service cannot depend on whether the local authority can afford to provide it. The argument was not pursued and I do not consider it further.

"(3) Apart from identifying the listed authority in question, the report must not

(a) mention the name of any person, or

(b) contain any particulars which, in the Ombudsman's opinion, are likely to identify any person and can be omitted without impairing the effectiveness of the report,

unless the Ombudsman determines that it is necessary to do so."

In her report, accordingly, the Ombudsman referred to Mr McLachlan Junior as "Mr C", and to Mr McLachlan Senior as "Mr A". In the petition, however, Mr McLachlan Junior was named and designed as an interested party, and these particulars were likely to identify his father as "Mr A". Mr McLachlan Junior accepted that to name and design him as an interested party was in accordance with practice, but he maintained that to do so breached his right to anonymity under sections 12(1) and 15(3)(a) of the Act and his right to privacy under article 8 of the European Convention on Human Rights. He said that the main attractions of the service provided by the Ombudsman were that it was provided free of charge to those who considered themselves aggrieved by an administrative decision, it respected their rights to privacy and it was an extra-judicial process. He considered that many individuals would prefer to suffer an injustice or hardship rather than resort to the Ombudsman if they considered that they might find themselves in a public court. He maintained that the bringing of the petition was oppressive to him and his family. Mr McLachlan's point was well made, but he did not suggest that publication of his identity could have been forbidden by the Court.

"In effect Lord Wilberforce is saying that when asked to grant decree of reduction of an administrative decision it is relevant for the court to consider whether the person seeking reduction has a substantial interest in having it set aside."

I consider that there is no doubt that the petitioners have a substantial interest in having the Ombudsman's decision set aside. They are a public body which make decisions on spending and the provision of services on the basis of what they understand to be their statutory powers and duties. The extent of their duties in relation to the provision of free personal care has significant financial consequences for them. The Ombudsman has now found that they have failed to provide a service and has recommended that they make certain payments. In these circumstances I am satisfied that the Council have a substantial interest in the reduction of the Ombudsman's decision.