Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 66
A204/07	OPINION OF LORD KINCLAVEN in the remitted cause DAVID SANDEMAN BOATH Pursuer; against PERTH AND KINROSS COUNCIL Defenders:

Pursuer: McLean, Q.C.; Thorntons

Defenders: Moynihan, Q.C.; Munro, Advocate; Brodies LLP

15 May 2009

Introduction

[1] This is a remitted cause from Perth Sheriff Court which raises important questions concerning the Community Care and Health (Scotland) Act 2002 ("the 2002 Act").

[2] The case called before me for debate in relation to certain points of principle.

[3] In essence, the pursuer contends that a range of services provided by the defenders to him and to his late wife should have been provided free of charge by virtue of the provision of the 2002 Act. He seeks reimbursement of the charges paid.

[4] On the other hand, the defenders maintain that certain of the services were properly chargeable. They accordingly defend the principal action and also counter claim for additional sums due by the pursuer on the assumption that the services are chargeable.

[5] Mr McLean QC appeared for the pursuer.

[6] Mr Moynihan QC and Ms Munro appeared for the defenders.

[7] I am grateful to counsel for their detailed and balanced submissions and for their agreed formulation of the two issues to be decided by the court (see below).

[8] Different issues arose in relation to specific services. The services concerned were set out in the pleadings and distinctions were drawn between:-

(1) food preparation;

(2) meals on wheels; and

(3) laundry and housework.

[9] The critical differences between the parties related to questions of statutory construction and identifying the intention of Parliament. Certain issues were no longer in dispute between the parties.

[10] The two issues to be decided were formulated by counsel as follows, namely:-

Question (1). "Has the pursuer averred a relevant case that under the 2002 Act the defenders were not entitled to charge for services provided on account of their customer's / client's substantial immobility by way of laundry, housework and meals on wheels?"

Question (2). "In any event, has the pursuer averred a relevant case that under the 2002 Act the defenders were not entitled to charge for the element of the charge for meals on wheels that is attributable to the preparation of food?"

[11] In summary, in my opinion, on a proper interpretation of the legislation before me, those two questions are answered as follows:-

Answer (1) "No."

Answer (2) "Yes."

In other words, the defenders' arguments prevail in relation to Question 1 - but the pursuer's arguments prevail in relation to Question 2.

[12] In overview, taking into account the concessions as well as the submissions of counsel, the position in this case might be summarised as follow:-

(1) "Assisting with the preparation of food" is not chargeable.

(2) The meals on wheels service is properly chargeable - but with the qualification that the defenders were not entitled to charge for the element of the charge for meals on wheels that is attributable to food preparation.

(3) The laundry services provided to the pursuer's late wife as a result of her incontinence should have been free of charge.

(4) However, the laundry and housework services provided to the pursuer are properly chargeable.

[13] In light of my decision, parties will require to consider inter alia the question of how to quantify "the element of the charge for meals on wheels that is attributable to food preparation" during the relevant period. That is not a matter that I can resolve - at least not at this stage. I shall reserve all questions of quantum.

[14] I should add that I have not been addressed on The Community Care and Health (Scotland) Act 2002 (Amendment to schedule 1) Order 2009 (SSI 20009 No 137).

[15] Having decided the questions of principle, and as requested by counsel, I will put the case out By Order to consider further procedure.

[16] The reasons for my decision can be outlined as follows.

Background

[17] Broadly, in terms of the 2002 Act, 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 falls within the ambit of Section 1(1) of the Act. The relevant provisions came into effect on 1 July 2002. I will outline the statutory provisions in more detail (below)

[18] I will also outline the pleadings in more detail (below) but in general terms the pursuer's case proceeds on the basis that he requires assistance with all aspects of daily living following a stroke in July 2000 and that he is substantially immobile. The pursuer's late wife, prior to her death in January 2004, had been suffering from Parkinsons's Disease and was incontinent. From 2000 she was assessed as requiring care which included meals on wheels, day care, and assistance with personal care, housework and laundry. The services provided to Mrs Boath, alongside those provided to her husband, continued until she was admitted to a nursing home in 2003. For the provision of these services to Mr and Mrs Boath the Council rendered invoices on a four weekly basis.

[19] By way of background, I was also referred to a large number of extra-statutory documents during the debate. For completeness I will also list them (below) and I will also highlight the specific passages referred to by counsel. However, I do not propose to rehearse the contents of those documents at length. The parties are familiar with those documents which can be referred to for their terms.

[20] I am, however, conscious that there may be many readers who do not have access to that documentation. Accordingly, simply by way of introduction, I propose to set out two of the highlighted areas in a little more detail, namely:-

1.                 Some of the Annotations from Current Law Statutes - the Annotated Version of the 2002 Act (Defenders' Document No 4); and

2.                 Part of The Scottish Parliament Official Report relating to The Health & Community Care Committee Meeting on 7 November 2001 (Defenders' Document No 12).

The Annotations from Current Law Statutes

[21] Both parties referred me to the annotations from the Current Law Statutes Annotated Version of the 2002 Act - which were included in Defenders' Document No 4. The annotations were by Professor Alastair Bissett-Johnston, University of Dundee, and Shona Main, Parliamentary Adviser to the Scottish Association of Directors of Social Work. Those annotations do not have statutory effect but, for present purposes, they provide a useful outline of the general background and may help to put matters in context.

[22] The annotations include the following Introduction and General Note:-

"The Community Care and Health (Scotland) Act 2002 (asp 5) ("the Act") implements a number of commitments aimed at improving the provision and delivery of care to the Scottish people. Part 1 makes provision for the delivery of free nursing care and free personal care to those over 65 years of age in all settings. It also makes a number of other provisions including the means of regulation of charging for home care services.

The most debated aspect of the Act is its provision for the introduction of free nursing care and personal care for all who need it, regardless of the context. An important catalyst to the legislation was the "Royal Commission Long Term Care of the Elderly" (March 1999), which was headed by Sir Stuart Sutherland. The Commission's remit was to investigate the options for sustainable short and long term systems of funding of long-term care for elderly people, in all settings and to recommend how the costs of such care should be allocated between public funds and the individual. The Report (the "Sutherland Report") made a number of recommendations, most famously advocating the need for free nursing care and free personal care. ...

In October 2000 the then Scottish Minister for Health and Community Care, Susan Deacon MSP announced the Scottish Executive's "Response to the Royal Commission on Long Term Care". This established the Executive's priorities for improving the delivery of community care together with increased funding, building up to almost £100 million in 2003-4. The Minister committed the Executive to introducing legislation to ensure the provision of free nursing care in all settings; to remove obstacles to joint service delivery by pooled budgets, delegation of responsibility and a broader scope for financial transactions between the NHS and local authorities; to ensure consistency of fees for non-residential settings; to allow the disregarding of the value of a person's home for the first 12 weeks after admission to residential care; to make available local authority loans so that people would not have to sell their homes to fund residential care. ... (It) was the Health and Community Care Committee of the Scottish Parliament, who had conducted its own "Inquiry into the Delivery of Community Care" (November 2000, 16^th Report), which opened the issue of free personal care to scrutiny and debate in the Parliament that began to amass pressure on the Executive to include the policy in the forthcoming legislation.

Following two days of heated debate in the Scottish Parliament, the coalition and the media, the then First Minister announced on January 25, 2001 that the Scottish Executive would indeed deliver free personal care from April 2002. The Minister also announced the establishment of the Care Development Group to further consult and develop the Executive's policies and "to ensure that older people in Scotland have access to high quality and responsible long term care, in the appropriate setting, and on a fair and equitable basis".

[23] In relation to Part 1 of the Act "Community Care" the annotations continue:-

"Charging and not charging for social care

Amongst the Act's major policy objectives is that of resolving charges for social care. NHS nursing care is free in the home, in NHS hospitals and in nursing and residential care homes. Non-NHS care provided in nursing homes to those who are local authority funded, is also free. However, some residents pay for part or all of their non-NHS care costs subject to a means test. The Scottish Executive regarded this distinction as unfair and in October 2000 accepted the Sutherland Reports' recommendation that nursing care in all settings should be free. ..

The Act confers a regulation making power on the Scottish Ministers to regulate those matters of social care for which local authorities may or may not charge. This supplements Sched. 1 which lists the items of social care for which no charge is ordinarily made.

The implementation of free personal care, however, was considered to be much more problematic. The Care Development Group considered the definition of free personal care and a number of other matters, such as eliminating gaps and duplications in its provision. This Group was asked to work with the Chief Nursing Officer's Group to develop an integrated person-centred approach to care (both personal and nursing) and to consider UK wide factors such as tax and cross border movement. The 39 recommendations within their Care Development Group's final Report, "Fair Care for Older People", published in September 2001 did include a definition of personal care. However, it also outlined the extreme complexity involved in executing the policy, particularly within the timescales. Nonetheless, this was fully endorsed by the Executive who established the Care Implementation Group to carry out in detail the mechanics of implementing our proposals in this report.

Full implementation of "free personal care" was originally planned for April 2002. Throughout the progress of the Bill, local authorities and social work professionals had been pressing for delay in the implementation of free personal care away from the start of the financial year, where a number of other major policies in social care, including the creation of the Scottish Commission for the Regulation of Care, the Scottish Council for Social Services and joint working with health services, were due to begin. Aside from the concerns regarding implementation amongst those charged with the delivery of free personal care, there has been financial and indeed constitutional issues to be resolved. In June 2001 Angus MacKay, the then Minister for Finance and Local Government, earmarked £100 million for 2002 and a similar sum for 2003. However, these sums were reliant upon a transfer of £23 million from the Department of Work and Pensions, considered to be a rebate for attendance allowance, a benefit that would be defunct due to the funding mechanism proposed for free personal care. However, after months of negotiations with the DWP, on January 15, 2002 the Minister for Health and community Care, Malcolm Chisholm admitted that Whitehall had refused the transfer, that the Scottish Executive would not challenge the decision but that they would plug the gap in the funding of free personal care. On January 15, 2002, following the recommendation of the Chair of the Care Implementation Group, the Minister of Health and Community Care, Mr Malcolm Chisholm announced that in response to pressure from local authorities, the implementation would be delayed until July 1, 2002, giving extra time to allow for "the right assessment and delivery mechanisms are in place to meet the anticipated need".

Under s.87 Social Work (Scotland) Act 1968 (c.49) ("the 1968 Act), it was not possible for local authorities to provide free care (including personal care) to those in residential care. The Act therefore enables the delivery of free nursing and personal care. Where persons required personal care in a non-residential setting, or "home care", the pre-Act law gave local authorities wide discretion in the charges they levied. Current costs for care at home, day care, equipment and adaptations, range from full cost recovery to a free service and where fees are imposed they range from £11.30 to £88.58 per week. This wide range of charges as between local authority areas led to feelings of unfairness on the part of users. Regulation making powers under the Act will permit Ministers to prescribe greater uniformity in approach, through a standardised system of charging. The provision of free personal care pursuant to the Act will still allow charges for non personal care (or "domestic care") but variations in charging policy by local authorities will be reduced by conferring a regulation making power on Ministers to specify:

(i) the factors to be taken into account in calculating a charge; or

(ii) a maximum charge which can be levied.

Such charges will take into account the user's income and capital. The Convention of Scottish Local Authorities guidelines aimed to reduce inconsistencies in local authority charges for non-residential care and Ministers will take this into account before exercising this regulation making power."

[24] The annotations also provide a General Note to section 1 of the Act, namely:-

"The Executive resisted an attempt by members of the Health and Community Care Committee to include a set of the Act's general principles ahead of the specific sections of the Act. (Official Report of the Health and Community Care Committee, January 16, 2002, col 2320).

The section provides the statutory basis for implementing free nursing and personal care and to regularise fees for home care. It also provides the basis for the Scottish Ministers to regulate for local authority charges (or otherwise) for social care. Generally, local authorities are not permitted to charge for social care which either they provide or secure where the social care (as defined in s.22) is personal care or personal support as defined in the Regulation Care (Scotland) Act 2001 (c.8) or, care within subs. (1), including most importantly in the comprehensive Sched.1 introduced in the course of passage of the Act. The Scottish Ministers are, however, under s.1(2), empowered to regulate or vary Sched.1 and subs.(1) and, subject to subs.(1), to require local authorities to charge or not to charge for social care, and to specify in regulations the factors to be considered in determining charges."

[25] In relation to section 1(2), the annotation is as follows:-

"The regulation power encompasses a power to cap charges and indicates how means testing is to be applied is assessing these charges."

[26] In relation to section 1(3), the annotation is:-

"This provision attempts an interface with the 1968 Act by avoiding duplication of charging under that 1968 Act by making s.87(1) and (A) of the 1968 Act inapplicable where the case is covered by s.1 of the present Act. The explanatory notes indicate that in due course regulations will make clear whether the 1968 Act or the current Act will apply to particular aspects of social care in residential care settings."

[27] In relation to Schedule 1, the annotations contain a General Note as follows:-

" 'Personal care' as stated in s.1 of the Act, has previously been defined in general terms in the Regulation of Care (Scotland) Act 2001 in s.2(28): "personal care" means care which relates to the day to day physical tasks and needs of the person cared for ..... and to mental processes related to those tasks and needs." This and the definition offered by the "Royal Commission on Long Term Care" was examined and considered by the Care Development Group who recommended a range of tasks that could be described as free personal care. It is the care developments detailed (but complimentary to the general definition in the 2001 Act) (sic) which is outlined in Sched.1. In brief it specifies undertakings in the areas of personal hygiene (para. 1) eating requirements (para. 2), problems that arise where a person is immobile or substantially immobile (para. 3), administration of medical treatment (para. 4) and tasks relating to general well being, including "behaviour management and psychological support" (para. 5)."

[28] As mentioned at the outset, it should be borne in mind that the views expressed in those annotations, helpful though they may be, have no statutory effect.

The Health & Community Care Committee Meeting on 7 November 2001

[29] Both parties also referred me to the Scottish Parliament Official Report relating to the meeting of the Scottish Parliament Health and Community Care Committee on 7 November 2001 (Defenders' Document No 11).

[30] At that meeting on 7 November 2001, Mr Malcolm Chisholm, the then Deputy Minister for Health and Community Care, said inter alia (Defenders' Document 11 at pages 179 and 181 of the bundle):-

"It is up to us to get all the details right so that we, not the courts, decide the policies. ... The definition of personal care had been broadly accepted but it is still fairly general. We may have to be careful about how it is interpreted because, as soon as the bill is passed, someone can challenge the law in court and we will have to rely on the judgment of the courts."

[31] Mr Chisholm was then asked questions by Ms Mary Scanlon (Defenders' Document 11 at bundle pages 182-185). There was the following exchange:-

"Mary Scanlon: Much of the bill amends the Social Work (Scotland) Act 1968. Does the minister understand why that has led to confusion about definition? I appreciate that some of our discussion has concerned personal care, but paragraph 18 of the policy memorandum refers to free nursing care and free personal care. Paragraph 19 says:

"the Bill provides powers for Ministers to prescribe in regulations which aspects of social care shall not be charged for."

I understand what personal care is, but can you tell us what social care and nursing care are?

Malcolm Chisholm: That is a very good question, if I may say so. ...

Personal care, nursing care and domestic care all come under the umbrella of social care. ... In summary, social care is a new construct that covers all the services in the 1968 act, apart from what is defined as accommodation - basically, housing and living costs in a care home. Everything else is social care and personal and nursing care are subsets of that....

Mary Scanlon: I think I understand a bit better.

Paragraph 19 of the policy memorandum says:

"the Bill provides powers for Ministers to prescribe in regulations which aspects of social care shall not be charged for"?

What did your bill team have in mind when it wrote that?

Malcolm Chisholm: That paragraph refers to section 1. Because social care covers nursing care, personal care and domestic care, the purpose of section 1 is clearly to separate out those aspects of home care that will not be charged for, which are personal care. Section 1 separates out the bits of social care that will continue to be charged for - albeit with new guidance or controls from the centre to address the unevenness of charging - from those bits that will not be charged for. ...

Mary Scanlon: Can you give an example of what aspects of care in their own home people whose care meets the personal care definition will have to pay for?

Malcolm Chisholm: That is precisely the territory that we must go into in the regulations. We must ensure that we get that absolutely right, because there will be some grey areas. That is why we must be careful about whether we formulate things in regulations, as we propose to do, or in the bill, as some members of the committee might wish. We all know what is obviously personal care and we all know, perhaps, what is obviously domestic care - help with housework and so on. Some issues could arise where the two meet. We must get those absolutely right in the regulations.

Mary Scanlon: If people have no mobility or memory or cannot feed themselves, dress themselves and so on, will you charge them for their housework and for someone to do their shopping?

Malcolm Chisholm: That has always been proposed under the definition of personal care. People can put up a contrary argument and say that all home care should be free. That is not being proposed at the moment. If someone did propose that, it would increase the cost of the policy."

[32] One of the issues in this case is whether I should have regard to the views expressed by the then Deputy Minister for Health and Community Care.

[33] Against that somewhat simplified background, I propose to turn to the pleadings and then the statutory provisions which lie at the centre of this case.

The Pleadings

[34] Given that questions of relevancy arise, it might be helpful to set out some of the main features of the Closed Record (No 27 of Process) which were specifically highlighted by counsel.

The Pleadings in the Principal Action

[35] In the principal action, the pursuer seeks payment of £3,081.40 plus interest.

[36] In Article 2 of Condescendence, it is averred inter alia that:-

"The Pursuer's date of birth is 1 August 1913. In or around July 2000 following a fall at home the Pursuer was admitted to Perth Royal Infirmary, Perth, PH1 1NX where he suffered a stroke (cerebral artery occlusion). He required to be resuscitated. Following treatment, the Pursuer was transferred to Blairgowrie Community Hospital (now known as Blairgowrie Cottage Hospital), Perth Road, Blairgowrie, PH10 6EE on 31 August 2000 and was thereafter discharged to his home on 5 December 2000. As a result of the stroke, he became permanently hemiplegic. Before discharge, the Pursuer was assessed at said Hospital on about 7^th November 2000 by the Strathmore Day Services Unit, who found inter alia that he was at risk of falls and trips and that he had difficulty with walking, climbing stairs, public transport, dressing, washing/bathing and grooming, meal preparation, housework, shopping and laundry. On about 9^th November 2000 an urgent referral to the Defenders' Social Work Department ("the Department") was completed by said Unit, in which it was noted that the Pursuer had left sided CVA and had left lower and upper limb weakness, and that he requires assistance with all aspects of daily living. It was noted that his wife (Mrs Janet Rennie Boath) had dementia and that the Pursuer had been her carer prior to his stroke. Said referral led to the Department's Assessment of 4^th December 2000 hereinafter referred to. At said time, as also in the period 1^st July 2002 to 15^th June 2003 (the period when invoices arose) the Pursuer was substantially immobile. He had little use of his left arm and hand and the use of his left leg was impaired. Within his home, the Pursuer could only walk slowly and with difficulty with the use of a walking stick and additional support gained by holding onto furniture and walls. He would move usually only between the toilet and the bedroom. The Pursuer fell within his home on various occasions. He was unstable on his feet, having to steady himself by holding on to furniture or walls with his good hand. Within indoor communal areas and outdoors, the Pursuer could only walk short distances slowly with a zimmer frame or the support of another person, for example carers at the day care centre attended by him. The Pursuer walked with a shuffling style. He took small, slow steps, dragging his weaker left leg/foot level with his other leg before taking the next small step with his right foot. The Pursuer could not walk longer distances. In these circumstances the Pursuer required to be pushed in a wheelchair. The Pursuer could not manage ordinary steps or stairs. The Pursuer's house at said time had no internal stairs, but had specially adapted wooden steps outside, installed after the Pursuer's stroke in 2000 on the advice of an Occupational Therapist. The Pursuer could only climb said steps under supervision, with difficulty, by leaning on the handrail. The Pursuer could not carry out domestic or household tasks because of his foregoing mobility problems. He could not carry out any laundry tasks, vacuum or prepare meals for himself. He required to use his one good hand to keep himself upright and could not then perform tasks with that hand. The most he could do was prepare a pot of tea for himself and his wife at the weekend (when his daughter or the Defenders' home help was not present), but even then at high risk that he would burn himself. He had to have his meals cut up for him so that he could eat them with a fork held in his right hand only. The home help provided by the Defenders had to prepare meals for the Pursuer and his wife when they were not in receipt of meals on wheels, including sandwiches for them to eat at lunchtimes at weekends. The Pursuer would take about an hour to put himself to bed. Prior to his discharge home, on 4 December 2000 the Pursuer was assessed by the Defenders' Social Work Services Department ("the Department"). In their "Assessment of Needs" report the Defenders acknowledged that the Pursuer needed help getting into bed, required the use of a toilet frame and grab rails, had poor mobility, walked with a zimmer frame and needed help with housework, shopping, meal preparation and provision. They arranged for home help for him seven days a week and for meals on wheels three days a week, with a weekly shower being provided by the home help. The Pursuer had been provided, on or before discharge from the hospital with a zimmer frame, a wheelchair, and a stick because of his severe problems with mobility. On discharge from the hospital the Pursuer was unable to walk without using a stick, zimmer or furniture as an aid. The Pursuer's relative social work care plan was reviewed on about 9^th January 2001, 27^th May 2002 and 24^th March 2003. No change was made to the provision assessed as required for him. At said review of 9^th January 2001, it was noted that the Pursuer required assistance with showering and that he was unable to make meals or do laundry, shopping or housework. It was noted that he should still have the package of care in situ, provided by the Defenders' Department. ... Admitted that the Pursuer was able to get up from an armchair, under explanation that that was so only in relation to a disabled person's armchair, out of which the Pursuer could rise by pushing up on the arms."

[37] In Article 3 of Condescendence it is averred inter alia that:-

"As a result of the Department's assessment on 4 December 2000 as hereinbefore averred, the Department produced a Care Plan. In terms of the Care Plan, the Defenders agreed inter alia to provide to the Pursuer care services comprising the preparation of food, carrying out laundry and housework. The Care Plan provided for twelve and a quarter hours' care to be spent each week on such matters. The said Care Plan acknowledged that the Pursuer required help to bath. Showering began almost as soon as the Pursuer was discharged from hospital in December 2000. The Department also arranged the delivery of "meals on wheels" at lunch time on each of three days per week. On 9^th January 2001, as hereinbefore averred, the Department carried out a review of the Care Plan hereinbefore mentioned and produced a report thereon. The report, dated 11 January 2001, narrates the pursuer's ongoing inability to make meals, do laundry, shopping or housework. The Defenders provided home help assistance and meals on wheels to fulfil said assessed needs of the Pursuer and his wife as hereinafter condescended upon. The Defenders' averments in answer are denied except insofar as coinciding herewith. Explained and averred that the Pursuer required assistance with showering. It is understood that the Defenders accept that that was personal care that required to be provided by them for free. The Defenders are called upon to admit that that is so. They have confirmed repeatedly in correspondence that the Pursuer had not been and would not be charged for services in connection with showering. The shower cubicle in the Pursuer's then house was small, and was provided with grab rails inside and outside for the Pursuer's use. There was insufficient room to fit a shower chair, which the said Occupational Therapist had recommended. It was too small to permit a carer to assist inside the cubicle. The Defenders' carer would instead wait outside the cubicle while the Pursuer showered and would then assist him with drying."

[38] In Answer 3 the defenders aver:-

"The original Care Plan and the 2001 Review are admitted and are referred to for their whole terms. Quoad ultra denied. Explained and averred that during the period from 1 July 2002 to 15 June 2003 the pursuer was able to shower himself. Care workers providing assistance to him with showering during that period would not be in contact with him whilst showering."

[39] In Article 4 of Condescendence it is averred that:-

"The Pursuer's wife, Mrs Janet Rennie Boath ("Mrs Boath") was born on 13 August 1914 and resided with the Pursuer. From at least December 2000 Mrs Boath suffered from Parkinson's Disease and was incontinent, of which the Defenders were aware. She was exhibiting signs of Parkinson's Dementia. Mrs Boath was first referred to the Department on about 20^th April 1998. Between July and December 2000 when the Pursuer returned home Mrs Boath was provided with care services by the Defenders, including meals on wheels three times a week, and invoices were rendered to her by the Defenders in that connection. Said services came to be so provided because Mrs Boath's family had become concerned about Mrs Boath's ability to feed herself properly when the Pursuer was in hospital. They accordingly approached the Defenders' Social Work Department to arrange for them to assess Mrs Boath for the provision of a basic care service, which approach was registered by the Council on about 8^th August 2000 and actioned by 14^th August 2000. The details were discussed at a meeting between relatives of Mrs Boath and the Defenders' said Department on or about 6^th September 2000. It is understood that the member of the Defenders' Department who attended that meeting was Angela Marsh. At or before said meeting, the Defenders established that Mrs Boath was suffering from Parkinson's Disease, arthritis and polymyalgia, with poor balance and mobility. They assessed Mrs Boath as requiring social care by way of meals on wheels, social day care and home help for 45 minutes an evening daily for meal preparation and medication prompt. She was also assessed as requiring help with personal care, housework and laundry. An assessment of needs was carried out on about 9^th January 2001. It was found that Mrs Boath had Parkinson's Disease and some degree of dementia. It was confirmed that she needed her main meals provided and that she required assistance with housework, shopping and laundry. Said services continued to be provided to Mrs Boath, alongside those provided to the Pursuer, until July 2003. Various further assessments took place between December 2000 and March 2003 but did not result in any change of assessment. During the period 1^st July 2002 to 15^th June 2003, Mrs Boath was disabled and she was substantially immobile. She was for practical purposes helpless. She was suffering from said Parkinson's disease. She suffered from incontinence and could get very confused. She had had reduced speech and had arthritis. She was physically bent over. She required to use a stick. She had lost the ability to make even simple decisions and had to be led around by the hand, for example, to visit the hairdresser. She was childlike and frequently tearful for no clear reason. She had to be reminded to eat and could not prepare a meal for herself. She did not appreciate that her husband was now also substantially disabled by his stroke. She was under the care of a psychiatrist, Dr Peter Connelly, Murray Royal Hospital, Muirhall Road, Perth PH2 7BH. In September 2002 he found that she was undergoing a dementing process with a mixture of Alzheimer's and vascular pathology. Her General Practitioner was the said Dr Morag Martindale. Because of her incontinence, Mrs Boath's clothing and bedding needed to be changed frequently and frequent laundry washings were required each day. She suffered a fall at home on 1 July 2003 as a result of which she was admitted to Blairgowrie Community Hospital. Mrs Boath was subsequently discharged to Muirton House Nursing Home and thereafter to Perth Royal Infirmary where she died on 30 January 2004. The Defenders' averments in answer are denied except insofar as coinciding herewith."

[40] In Article 5 of Condescendence it is averred, inter alia, that:-

"For the provision of the care services to the Pursuer and his wife as identified by the Department, the Defenders rendered invoices on a four weekly basis. The Defenders charged for the services rendered to the Pursuer and/or his wife on a single series of invoices. The name shown as the client on the invoices and on the underlying worksheets varied between the Pursuer and his wife on an arbitrary basis. The Defenders would take into account the weekly income of both the Pursuer and his wife, but did not take any capital into account. They would then deduct £169 for a couple or £111 for a person living on their own, resulting in a chargeable income figure. 65% of that figure was then taken as the maximum contribution to care service charges, with a maximum overall weekly contribution of £66 per week. This resulted in a charge for four weeks of care of £264. The invoices continued to be erroneously rendered in the name of Mrs Boath alone, which invoices the Pursuer settled in full to 15 June 2003. The invoices in respect of which this claim is made are twelve in number, covering the period 1st July 2002 to 15^th June 2003 inclusive, and are listed in the Pursuer's Schedule of such invoices. The said Schedule shows the elements of each such invoice calculated by the Pursuer to be attributable to (a) assistance with food preparation (which related to the heating of food supplied by others for the Pursuer and his wife, the making of sandwiches for weekend lunchtimes and the chopping up of the Pursuer's food so that he could manage to eat it), (b) housework (necessitated by the Pursuer's substantial immobility), (c) laundry charges (in respect of the Pursuer's substantial immobility and the consequences of his wife's incontinence) and (d) meals on wheels (delivered twice a week at lunchtimes). The meals on wheels charges were the equivalent of payments for assistance with preparation of food and did not include the cost of the food. The Defenders only increased the price charged to clients for meals on wheels, in order to cover the cost of the food itself, on about 17^th April 2006."

[41] In Article 6 of Condescendence it is averred, inter alia, that:-

"On 1 July 2002 the Community Care and Health (Scotland) Act 2002 ("the Act") came into effect. In terms of the Act a local authority such as the Defenders is not to charge for social care provided by them specified under Section 1(1) of the Act. This includes care where that social care, is, inter alia, of a kind mentioned in Schedule 1 of the Act. In terms of Schedule 1 of the Act social care not to be charged for includes, inter alia, at paragraph 1(g) where a person is incontinent, the consequential making of the person's bed and changing and laundering of the person's bedding and clothing, at paragraph 2(a) assisting with the preparation of food and, at paragraph 3, if the person is immobile or substantially immobile, dealing with the problems of that immobility."

[42] In Article 7 of Condescendence it is averred, inter alia, that:-

"The care services provided by the Defenders to the Pursuer and his wife, and paid for by the Pursuer as hereinbefore averred (including assistance with showering) comprised social care as defined in the Act. The care services provided by the Defenders to the Pursuer and his wife (including such showering) were of a kind that ought to have been provided free of charge from 1 July 2002 in terms of the Act. The charges specified on the Pursuer's said Schedule were accordingly unlawfully charged by the Defenders, and the Pursuer paid them under error, in that at the time he thought that he was liable to pay them when he was in fact, not so liable. ... The Pursuer is not well off. The sums unlawfully charged to him and paid by him under error would represent a very significant addition to the capital available to him. It would be equitable to allow the recovery of said sums, which are individually of a significant size to the clients such as the Pursuer who have been unlawfully charged, and to require the Councils to look to their wider sources of funding to meet the proper cost of care provision, including the said care that should, as a matter of law, have been provided for free. With reference to the Defenders' admission that they are liable to make repayment of sums paid to them in respect of meal preparation from 1 July 2002 to 15 June 2003, the Defenders are called upon to aver the sums they accept as being repayable to the Pursuer in respect thereof."

[43] In Answer 7, which was referred to by the defenders in their written Note of Argument, the defenders averred, inter alia:-

"(a) Food preparation

In making a charge during the relevant period in respect of food preparation the Defenders acted in good faith relying on guidance issued by the Scottish Executive. Reference is made to section 26 of the Act. Scottish Executive circulars CCD4/2002 and CCD5/2003 stated that assisting with food preparation was not included in free social care. In September 2004 the Scottish Executive changed that guidance to state that food preparation was to be included in free personal care. The defenders now accept that they erred in charging the Pursuer in respect of the assistance with preparation of food during the relevant period. Assisting with the preparation of food is free in terms of paragraph 2(a) of Schedule 1 to the Act. The Defenders have not charged the Pursuer for that service since 15th June 2003. In common with the other local authorities referred to, the Defenders have given consideration to fees levied in respect of food preparation. For the purposes of the present action only the Defenders admit their liability to repay charges made by them to the Pursuer for meal preparation from 1 July 2002 to 15 June 2003. The sum in respect of meal preparation refund payments is £1338.75, under explanation that there remain sums owing by the Pursuer to the Defenders in terms of the outstanding invoices referred to in the counterclaim.

(b) Meals on wheels

The Defenders maintain that the provision of meals on wheels remains a chargeable service. It is not covered by paragraph 2(a) of Schedule 1 to the Act. Current guidance from the Scottish Executive in the form of a circular letter dated 25th May 2006 continues to draw a distinction between (a) assisting with the preparation of food, which is free, and (b) meal provision, which is not. Meals on wheels is in the latter category. Esto, this service ought to be free, the Defenders have acted in good faith in reliance on Scottish Executive guidance. They have changed their position. The Defenders are funded by the Scottish Executive based on the latter's interpretation for the time being of the legislation. Sums raised from charged for meals on wheels have been expended by the Defenders to pay to the Pursuer the sum craved. Quoad ultra denied."

The Pleas-in-Law in the Principal Action

[44] The pleas-in-law for the pursuer were as follows:-

"1. The Defenders' averments being irrelevant et separatim lacking in specification, decree should be granted as craved.

2. The Pursuer having made payment to the Defenders in response to the Defenders' invoices for services to the Pursuer and his wife for which the Defenders were not entitled to charge, the Pursuer having been acting under the error at the time of payment that said sums were due, and it being equitable that repayment of said sums should be made by the Defenders, the Pursuer is entitled to repetition of the sums so paid by him as craved."

[45] The pleas-in-law for the defenders were as follows:-

"1. The pursuer's averments being irrelevant et separatim lacking in specification, the action should be dismissed.

2. The Defenders having been entitled to charge for the Services rendered to the Pursuer, with the exception of charges in respect of meal preparation, decree should not be granted as craved.

3. The Defenders having expended the sums recovered by way of charges for services provided to the Pursuer during the relevant period and it not being equitable in the circumstances to repay said sums, decree should not be granted as craved."

The Pleadings in the Defenders' Counter-Claim

[46] In their counter-claim the defenders seek payment from the pursuer of £1,066.12 plus interest.

[47] The defenders aver, in Statement of Fact 2, inter alia, that:-

"The defenders have provided services to the Pursuer further to the assessment of needs carried out in December 2000, as condescended upon in the principal action. They have issued invoices in respect of the services provided. During the period from August 2002 to May 2007, the Defenders issued to the Pursuer a total of 41 invoices. Of these invoices, the Pursuer has paid 15 in full. The Pursuer has paid one invoice in part. 25 invoices remain unpaid."

[48] The pursuer avers in Answer 2 to the counter-claim, inter alia:-

" ... The invoices referable to the period after 15^th June 2003 relate to social care that was provided by the Defenders to the Pursuer and his wife consequent to the Defender's said assessments of the Pursuer's continuing and worsening substantial immobility and (until about 1^st July 2003) the substantial immobility and incontinence problems of his said wife, Mrs Janet Boath. Reference is made to the Defenders' Financial Assessment for Homecare Services/Welfare Benefits Check dated 12^th September 2003, in which it is noted inter alia that the Pursuer is a stroke victim, paralysed on his left side, that his mobility is poor and that a wheelchair is used, that he is unable to prepare meals and that his meals require to be cut into small pieces. Reference is further made to the Defenders' assessment of the Pursuer dated November 2005, in which the Pursuer's continuing lack of mobility and inability to carry out domestic and laundry tasks were recorded and accepted by Jeni Guthrie, the defenders' Care Manager. Accordingly, they were services for which the Defenders were not entitled to charge in terms of said Act of 2002. Further, insofar as said services were required until about 1^st July 2003 by the Pursuer's wife, they related to her incontinence, Insofar as they relate to Meals on Wheels, they are largely or entirely attributable to the cost of assistance with the preparation of food for the reasons condescended upon in the principal action. For these reasons, such charges should not have and cannot be levied by the Defenders."

The Pleas-in-Law in the Counter-Claim

[49] The pleas-in-law for the defenders in their counter-claim were as follows:-

"1. The Defenders having provided services to the Pursuer, are entitled to payment therefor.

2. The sum sued for being the sum outstanding in terms of the invoices issued by the Defenders to the Pursuer, decree therefore should be pronounced as concluded for."

[50] The pleas-in-law for the pursuer in the counter-claim were as follows:-

"1. The Defenders' averments in support of the Counterclaim being irrelevant et separatim lacking in specification, the Counterclaim should be dismissed.

2. The Defenders' averments in support of the Counterclaim insofar as material being unfounded in fact, the Pursuer should be assoilzied from the craves of the Counterclaim.

3. The sums sued for not being lawfully chargeable to the Pursuer by the Defenders, the Pursuer should be assoilzied.

4. In any event, the sum sued for being excessive, decree therefore should not be granted as craved.

5. In any event, the Defenders being liable to make payment of sums to the Pursuer in terms of the principal action, the Pursuer is entitled to retain any sums that may be payable by him to the Defenders sought in the counterclaim pending resolution of the principal action."

The Productions:

[51] I should add that the productions for the pursuer comprised:-

18/1 Schedule of payments made by Pursuer; and

18/2 Copies of relevant invoices from Perth & Kinross council (pages 1-12).

[52] The productions for the defenders comprised:-

24/1 Spreadsheet entitled 'David Boath v Perth & Kinross Council Schedule of Invoices' showing all invoices issued in the period 22 August 2002 to 3 May 2007 and the amounts outstanding and the amount allocated to meal preparation; and

24/2 Invoices and credit notes issued to Mr Boath in the period 22 August 2002 to 3 May 2007.

The Statutory Background

[53] As the issues depend on questions of statutory construction, it might be helpful to set out in the main statutory provisions in some detail.

[54] The central provisions are those of the Community Care and Heath (Scotland) Act 2002 ("the Act"), particularly Section 1 and Schedule 1 of that Act (which I have highlighted below in bold), but certain other statutory provisions were referred to during the debate. For ease of reference, I would set out the various provisions in chronological order as follows.

The Social Work (Scotland) Act 1968 c. 49

(Defenders' Document No 20).

[55] Part I of the Social Work (Scotland) Act 1968 relates to "Administration - Central Authority".

[56] Section 5A of the 1968 Act is headed "Local authority plans for community care services".

[57] Section 5A(4) of the 1968 Act provides inter alia:-

"(4) In this section -

"community care services" means services, other than services for children, which a local authority are under a duty or have a power to provide, or to secure the provisions of, under Part II of this Act or [section 25 (provision of care and support services for persons who have or have had a mental disorder), 26 (provision of services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)] and

"private carer" means a person who is not employed to provide the care in question by any body in the exercise of its functions under any enactment."

[58] Part II of the 1968 Act relates to"Promotion of Social Welfare by Local Authorities - General".

[59] Section 12 of the 1968 Act is headed "General social welfare services of local authorities" and provides inter alia:-

"(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, subject to subsection (3) to (5) of this section, be given in kind or in cash to, or in respect of, any relevant person.

(2) A person is a relevant person for the purposes of this section if, not being less than eighteen years of age, he is in need requiring assistance in kind or, in exceptional circumstances constituting an emergency, in cash, where the giving of assistance in either form would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person's need would cause greater expense to the local authority on a later occasion."

[60] Section 12A of the 1968 Act is headed "Duty of local authority to assess needs" and it provides inter alia:-

"(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. ...

(5) Nothing in this section shall prevent a local authority from providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provision of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency.

(6) If, by virtue of subsection (5) of this section, community care services have been provided for any person as a matter of urgency, then, as soon as practicable thereafter, an assessment of his needs shall be made in accordance with the preceding provisions of this section.

(7) This section is without prejudice to section 3 of the said Act of 1986.

(8) In this section -

"community care services" has the same meaning as in section 5A of this Act;"

[61] Section 13A of the 1968 Act 1968 is headed "Residential accommodation with nursing" and provides inter alia as follows:-

"(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."

[62] Section 14 of the 1968 Act is headed "Home help and laundry facilities" and (as amended by the National Health Services and Community Care Act 1990, section 66(1), Schedule 9 paragraph 10(6)), provides as follows:-

"(1) It shall be the duty of every local authority to provide on such scale as is adequate for the needs of their area, or to arrange for the provision on such a scale as is so adequate of, domiciliary services for households where such services are required owing to the presence, or the proposed presence, of a person in need or a person who is an expectant mother or lying-in, and every such authority shall have power to provide or arrange for the provision of laundry facilities for households for which domiciliary services are being, or can be, provided under this section."

[63] Part VII of the 1968 Act relates to "Miscellaneous and General".

[64] Section 87 is headed "Charges that may be made for services and accommodation" and it provides inter alia:-

"(1) Subject to sections 78 and 78A of this Act (contributions in respect of maintainable children) and to the following provisions of this section, a local authority providing a service under this Act or section 25 (care and support services for persons who have or have had a mental disorder), 26 (services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13) or under or by virtue of Part II of the Children (Scotland) Act 1995 may recover such charge (if any) for it as they consider reasonable. ...

(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 to subsection (4) of that section.

(2) Persons, other than maintainable children, for whom accommodation is provided under this Act or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13), shall be required to pay for that accommodation in accordance with the subsequent provisions of this section."

Regulation of Care (Scotland) Act 2001 ASP 8 (Scottish Act)

(Defenders' Document No 3 - the bundle at page 39)

[65] Section 2(28) of the Regulation of Care (Scotland) Act 2001 Act provides as follows:-

"In this Act, unless the context otherwise requires -

"someone who cares for" (or "a person who cares for") a person, means someone who, being an individual, provides on a regular basis a substantial amount of care for that person, not having contracted to do so and not doing so for payment or in the course of providing a care service; ...

"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); and

"personal support" means counselling, or other help, provided as part of a planned programme of care."

Community Care and Health (Scotland) Act 2002 2002 ASP 5

(Defenders Document No 1- the bundle page 1)

[66] This is "An Act of the Scottish Parliament to make further provision as respects social care; to make provision in relation to arrangements and payments between National Health Service bodies and local authorities as respects certain of their functions; to amend the law relating to the National Health Service; and for connected purposes."

[67] The Bill for this Act was passed by the Parliament on 6 February 2002 and received Royal Assent on 12 March 2002. For present purposes, the relevant provisions came into effect on 1 July 2002.

[68] Part I of the Act relates to "Community Care" and deals with "Charging and not charging for social care".

[69] Section 1 of the Act is headed "Regulations as respects charging and not charging for social care" and provides as follows:-

"(1) Subject to subsection (2)(a) below, 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.

(2) The Scottish Ministers may (either or both) -

(a) by regulations qualify the requirements of subsection (1) above in such way as they think fit;

(b) by order amend schedule 1 to this Act.

(3) In paragraph (d) of subsection (1) above, "nursing care" does not include such social care as falls within any of paragraphs (a) to (c) of that subsection.

(4) Subject to subsection (1) above, the Scottish Ministers may by regulations -

(a) require a local authority -

(i) to charge; or

(ii) not to charge,

for such social care provided by (or the provision of which is secured by) the authority as may be specified in the regulations;

(b) where a requirement is made under paragraph (a)(i) above, specify the amount to be charged or factors which the authority must (either or both) -

(i) take into account;

(ii) not take into account,

in determining any such amount; and

(c) where a requirement is made under paragraph (a)(ii) above, qualify that requirement in such way as they think fit.

(5) Regulations under subsection (4) above may -

(a) specify, as a factor which the authority must take into account by virtue of paragraph (b) of that subsection, the maximum amount which may be charged for the social care in question or for that and such other social care (being social care provided to the same person by the authority) as may be specified in the regulations; or

(b) provide that a person who, in such manner and by reference to such factors as may be specified in the regulations, is assessed by the authority as unable to pay the amount falling to be charged by virtue of that paragraph is required to pay only so much as appears from the assessment to be reasonably practicable for that person.

(6) In section 87 of the 1968 Act (charges that may be made for services and accommodation), after subsection (1A) there is inserted the following subsection -

"(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.".

(7) Regulations under this section may make such transitional provision as the Scottish Ministers consider necessary or expedient, modifying either or both of subsections (1) and (2) of section 12A of the 1968 Act (duty of local authority to assess needs of certain persons for community care services) in their application to persons who, immediately before the date of coming into force of this subsection, were receiving such services in residential accommodation and for whom the local authority were not, at that time, providing or securing the provision either of the services or the accommodation."

[70] Section 2 of the Act is headed "Accommodation provided under the 1968 Act etc." and it provides inter alia as follows:-

"For the purposes of the definition of "social care" in section 22(1) and (2) of this Act, of sections 22 (charges to be made for accommodation), 26 (provision of accommodation in premises maintained by voluntary organisations) and 65 (general provisions as to application to Scotland) of the 1948 Act and of sections 86 and 87(2) and (3) (charges that may be made for accommodation) of the 1968 Act, the Scottish Ministers may by regulations determine what is and what is not to be regarded as accommodation provided under the 1968 Act or under section 25 of the 2003 Act (provision of care and support services etc for persons who are or have been suffering from mental disorder)."

[71] Section 22 of the Act (in Part 4 "General") deals with "Interpretation" and provides inter alia as follows:-

"(1) In this Act - ...

"the 1968 Act" means the Social Work (Scotland) Act 1968 (c.49); ...

"prescribed" means prescribed by regulations made by the Scottish Ministers; and

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

(a) under the 1968 Act; or

(b) under section 7 (arrangements in relation to persons who are or have been suffering from mental disorder) or 8 (provision of after-care services for such persons) of the 1984 Act,

to an individual by a local authority or a service the provision of which to an individual, under the 1968 Act or either of those sections, is secured by a local authority.

(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)."

[72] Section 26 of the Act is headed "Guidance and directions" and provides:-

"Without prejudice to -

(a) section 5 of the 1968 Act (functions of Scottish Ministers);

(b) sections 2 (Health Boards), 10 (Common Services Agency) and 12A (National Health Service trusts) of, and paragraph 6 of Schedule 7A to, the 1978 Act; and

(c) sections 5(1)(b), 6(1), (2)(b)(ii) and (4) and 17(1) and (5) of this Act,

the Scottish Ministers may issue relevant guidance and directions to local authorities and NHS bodies (that is to say such guidance and directions as appear to the Scottish Ministers to be requisite in relation to, or in consequence of, the provisions of this Act) as to the exercise by those authorities and bodies of any function."

[73] Schedule I to the Act provides inter alia as follows:-

"Social Care Not Ordinarily Charged For (introduced by section 1(1)(c))

1. As regards the personal hygiene of the person cared for -

(a) shaving;

(b) cleaning teeth (whether or not they are artificial) by means of a brush or dental floss and (in the case of artificial teeth) by means of soaking;

(c) providing assistance in rinsing the mouth;

(d) keeping finger nails and toe nails trimmed;

(e) assisting the person with going to the toilet or with using a bedpan or other receptacle;

(f) where the person is fitted with a catheter or stoma, providing such assistance as is requisite to ensure cleanliness and that the skin is kept in a favourable hygienic condition;

(g) where the person is incontinent -

(i) the consequential making of the person's bed and consequential changing and laundering of the person's bedding and clothing; and

(ii) caring for the person's skin to ensure that it is not adversely affected.

2. As regards the person's eating requirements -

(a) assisting with the preparation of food;

(b) assisting in the fulfilment of special dietary needs.

3. If the person is immobile or substantially immobile, dealing with the problems of that immobility.

4. If the person requires medical treatment, assisting with medication, as for example by-

(a) applying creams or lotions;

(b) administering eye drops;

(c) applying dressings in cases where this can be done without the physical involvement of a registered nurse or of a medical practitioner;

(d) assisting with the administration of oxygen as part of a course of therapy.

5. With regard to the person's general well-being -

(a) assisting with getting dressed;

(b) assisting with surgical appliances, prosthesis and mechanical and manual equipment;

(c) assisting with getting up and with going to bed;

(d) the provision of devices to help memory and of safety devices;

(e) behaviour management and psychological support."

Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002/303 (Scottish SI)

(Defender's Document No 5 - the bundle page 62)

[74] Regulation 2 of these Regulations relates to "Accommodation provided under the 1968 Act or section 25 (care and support services etc.) of the 2003 Act" and, as amended by the Community Care (Personal Care and Nursing Care) (Scotland) Amendment Regulations 2008/78 (Scottish SI) regulation 2(2)(b), provides:-

"For the purpose of section 2 of the Act, accommodation provided to or provision of which is secured for an individual by a local authority under the 1968 Act or section 25 (care and support services etc) of the 2003 Act does not include-

(a) the first £149 per week of care of a kind mentioned in paragraphs (a), (b) and (c) of section 1(1) of the Act, and

(b) the first £67 per week of care of a kind mentioned in paragraph (d) of section 1(1) of the Act."

[75] Regulation 3 of these Regulations relates to "Qualification of requirement not to charge" and, as amended by the Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Subordinate Legislation) Order 2005/445 (Scottish SI) Schedule 1 paragraph 39(3), provides:-

"The requirement in section 1(1) of the Act, not to charge for social care of a kind mentioned in paragraphs (a), (b) and (c) of that section shall apply only where the person, for whom the local authority has a duty or power in terms of the 1968 Act or section 25 (services designed to promote well being and social development) of the 2003 Act, is a person aged 65 or over."

[76] In now turn to the submissions of parties. I do not propose to set out all the detailed arguments (which I have taken into account) - but it might be helpful to highlight a few of the main propositions as follows.

Submissions on behalf of the Defenders

[77] The defenders' written Note of Argument (No 28 of Process) provided a helpful introduction. Counsel outlined the defenders' position as follows.

Quantum

[78] There is a dispute on Record as to the allocation of the total aggregate charges levied from time to time as between the various services. It was considered that this ought to be capable of agreement.

Food Preparation

[79] The defenders admit that the service of food preparation should have been free of charge by virtue of paragraph 2(a) of Schedule 1 to the Act.

[80] Accordingly, subject to the counter-claim, the defenders admit a liability to refund the sum charged in respect of this service.

[81] The precise sum charged in respect of this service requires to be agreed.

[82] Whether or not any sum is payable to the pursuer will depend on the outcome of the arguments in relation to the counter-claim.

Meals on wheel

[83] The defenders maintain that this service is chargeable, it not being covered by paragraph 2(a) of Schedule 1 of the Act and current guidance from the Scottish Government being consistent with a charge being leviable.

[84] This has a bearing on both the principal action and the counter-claim.

[85] The defenders argued that the pursuer's pleadings are irrelevant in this regard. The critical averments in Condescendence 5 (page 15) are unclear whether it is maintained that (a) the service by its nature is one that should be free or (b) the net sum in fact charged is unlawful because it is equivalent to only the cost of food preparation.

[86] The defenders submitted that eligibility for free provision depends on the nature of the service and not on the manner in which any charge is computed.

[87] Further, the defenders maintained that, for the reasons summarised above, a meals on wheels service is by nature not one that attracts exception from charge.

[88] To meet an argument by the pursuer that the eligibility for free provision derives from the manner in which the charged levied has been computed (i.e. that it is equivalent to only the cost of food preparation), the defenders proposed a meeting with the pursuer's representative to explain that the charge was simply the net balance after a subsidy has been set and that it is not set by reference to the cost of food preparation. That explanation was offered with a view to narrowing down the issues between the parties and saving the cost and delay required by a proof in the event that the defenders are wrong in the primary argument (above).

Laundry and housework

[89] The defenders submitted that there was one specific complication in this connection that required to be addressed at the outset. It related to the laundry services provided to the pursuer's late wife as a result of her incontinence. The defenders accepted that that service should have been free of charge by virtue of para 1(g)(i) of the Act and therefore any charge paid in that respect is refundable (subject to any sum due to the defenders for other services under the counter-claim). The part of the aggregate payment made that is properly referable to this specific service requires to be discussed and agreed between the parties.

[90] That complication aside, the dispute between the parties relating to these services (which arises both in relation to the principal action and the counter-claim) centres on section 1(1)(c) of the Act and , specifically, paragraph 3 of Schedule 1 to the Act, which exempts from charges the provision of care which is for:

"If the person is immobile or substantially immobile, dealing with the problems of that immobility."

[91] There is a factual dispute between the parties whether the pursuer's condition was such that he should be regarded as "immobile or substantially immobile". That factual dispute, assuming that it is pertinent, would require to proceed to a Proof Before Answer.

[92] However, the defenders maintain that that factual dispute is not pertinent because the crux of the dispute relates to the legal question of the proper interpretation, in the context of the scheme of the Act as a whole and the guidance surrounding it, of the words "dealing with the problems of that immobility". The defenders contend that properly construed those words apply only to personal (i.e. intimate) care and do not apply to ordinary services such as laundry and housework. Reference was made to Answer 7 of the Closed Record.

[93] The defenders maintain that that is the case whether or not the pursuer, as a matter or fact, is "immobile or substantially immobile". The Procedure Roll proceeded on the conventional hypothesis that the pursuer's averments in that regard are to be taken pro veritate. The defenders argued that, none the less, the nature of these services is not such as to qualify for exemption from charge.

Other Local Authorities

[94] The pursuer also has averments in Article 7 of Condescendence regarding the practice of other Local Authorities.

[95] The defenders understood those averments to relate to eligibility for a refund of charges levied in respect of food preparation. It was submitted that since that point was conceded by the defenders the practice of other Local Authorities was irrelevant to the dispute and those averments should be excluded from probation.

Overview

[96] In overview, as outlined more fully during the debate, the defenders' position was as follows.

[97] On a proper construction of the 2002 Act the services in dispute are chargeable.

[98] The questions raised were squarely focussed during the legislative process and the Minister gave a clear answer supporting the defenders' position.

[99] Personal care had a received meaning which is followed in Schedule 1 - and it does not include domestic care.

[100] The mischief which the 2002 Act was intended to address was the inequality identified by the Sutherland Commission.

[101] There is much in common between the parties but there is a significant difference between them in relation to statutory interpretation.

[102] The defenders accept that the task is to construe the words used - with the object of discovering the intention of Parliament - but it is permissible to refer to Ministerial statements to disclose the intended meaning of particular words.

[103] There are controls in place when carrying out that exercise (of referring to Ministerial statements), namely:-

1. the words of the statute must legitimately require interpretation - as where there is ambiguity or obscurity or absurdity. If the words are clear then they must be given their clear meaning.

2. the words of the statement must come from the Minister or promoter of the bill; and

3. the statement from the Minister must be clear.

All those requirements are met in the present case - so it was argued.

[104] There is a genuine dispute in the present case. The possibility of amendment of the provisions is irrelevant for present purposes.

[105] In section 1(1) of the 2002 Act, paragraphs (a), (b) and (c) fall to be seen as bracketed together and relate to "personal care" (as oppose to "domestic care" or "living costs" or "accommodation costs") - whereas paragraph (d) relates to "nursing care".

[106] The pursuer's averments about immobility are irrelevant for present purposes. In relation to the care in issue in the present case, it was not the intention of Parliament to draw a distinction favouring those who are "substantially immobile" - as opposed to others, for example, who are mobile but who have dementia. The care in issue in the pursuer's case is not directly related to immobility. The purpose of the legislation was to introduce equality - irrespective of particular conditions. The court must seek to avoid absurdity. Paragraph 3 of Schedule 1 specifically relates to "dealing with the problems of that immobility" whereas meals, housework and laundry are needs common to us all.

[107] The provision of a meal is a different kind of care and is a different task from the more limited task contemplated in paragraph 2 Schedule 1 - "assisting with the preparation of food".

[108] All the residual parts of the pursuer's claim are irrelevant as a matter of law - so argued the defenders.

[109] As noted at the outset, counsel also provided an agreed formulation of the issues to be decided by the court.

The Authorities and References produced by the Defenders

[110] I was referred to the following authorities and references, in a numbered bundle prepared by the defenders, namely:-

1. The Community Care & Health (Scotland) Act 2002 ("CCHSA")("the Act") at the defenders' bundle page number 1 et seq;

2. Explanatory Notes to CCHSA particularly at bundle pages 15, 17 and 18;

3. The Regulation of Care (Scotland) Act 2001, Section 2, at bundle pages 39 and 42;

4. Current Law Statutes annotated version of CCHSA at bundle pages 44, 45, 47, 48, 58 and 59;

5. The Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002/03, at bundle pages 62-63;

6. CCHSA Policy Memorandum;

7. Community Care & Health Scotland ("CCHS") Bill (as introduced), at bundle pages 88 and 100;

8. CCHS Bill (as amended at Stage 2) at bundle pages 108 and 126;

9. 3^rd and 4^th Marshalled Lists of Amendments for Stage 2, at bundle pages 132-134;

10. SPICe Briefing Note on CCHS Bill as amended at Stage 2, 6 February 2002;

11. Scottish Parliament Official Report: Health & Community Care Committee Meeting, 7 November 2001at bundle pages 163 and 177-185;

12. Stage One Report of Health & Community Care Committee on CCHS Bill, Scottish Parliament Paper 451, at bundle pages 202-204, 206-208, and 211-212;

13. Scottish Parliament Official Report: Health and Community Care Committee Meeting 16 January 2002 at bundle pages 226, 230-232, 240-241, and 246.

14. "With Respect to Old Age: Long Terms Care - Rights and Responsibilities", A Report by The Royal Commission on Long Term Care, March 1999, Cm 4191-I ("The Sutherland Report"), Chapter 6 at bundle pages 253-254, 260-267, 269, and 271;

15. Care Development Group "Fair Care for Older People", Chapter 4, at bundle pages 272-274;

15A. "Long Term Care: Statement by Royal Commissioners dated September 2003 at bundle pages 276 and 281;

16. Scottish Executive Circular No CCD5/2003 dated 29 July 2003 at bundle pages 298-299, and 302;

17. Free Personal Care - Updated Guidance from the Health Department dated 24 September 2004 at bundle pages 305-307;

18. Argyll & Bute Council v Scottish Public Services Ombudsman 2008 SLT 168, Lord Macphail at paragraphs [22] - [33], [69], [79] -[83], [92] - [97] and [105];

19. "Independent Review of Free Personal and Nursing Care on Scotland", A Report by Lord Sutherland, April 2008 particularly at bundle pages 351-355;

20. Social Work (Scotland) Act 1968, c 69, particularly sections 5A(4), 12(1) and (2), 12A(1) and (5)-(8), 13A(1), 14(1), and 87(1), (1B) and (2);

21. Pepper v Hart [1993] AC 593; particularly Lord Keith of Kinkel at page 616E, Lord Bridge of Harwich at pages 616E - 617C, Lord Griffiths at pages 617D-H and 619D-E, Lord Ackner at page 619F, Lord Oliver of Aylmerton at pages 619G - 620H, and Lord Browne-Wilkinson at pages 621H-622D, 629E-H, 634D-635F, 640B-D and 643C-D;

22. Wilson v First County Trust Ltd (No 2) (HL(E)) [2004] 1 AC 816, particularly Lord Nicolls of Birkenhead at paragraphs 53 to 60 (pages 839F-842B), Lord Hope of Craighead at paragraphs 113-114 (page 856A-D), Lord Hobhouse of Woodborough at paragraphs 139-140 (pages 864E-865F), Lord Scott of Foscote at paragraph 173 (page 873F), and Lord Roger of Earlsferry at paragraph 178 (pages 874H-875B); and

23. Robertson v Fife Council 2000 SC (HL) 45, Lord Hope of Craighead at paragraphs [51]-[52] (pages 159G-160C).

Submissions on behalf of the Pursuer

[111] In overview, as outlined more fully during the debate, the pursuer's position was as follows.

[112] The defenders are seeking to write into the legislation things that are simply not there - so argued the pursuer.

[113] It was important not to allow Ministerial statements to be read as if they had been enacted. The court required to be particularly cautious when the wording being debated was not the wording that was eventually enacted. It was an objective exercise.

[114] You begin the exercise very much from the wording that has been enacted. The starting point is the plain words of the statute. It's only where there is some ambiguity that the background can be looked at to identify the mischief. But the background should not be treated as if it had been enacted.

[115] The provisions are as set out in section 1(1)(c) and Schedule 1 of the 2002 Act. "The list is the list". Social care is not restricted to personal care. Social care is an umbrella term and personal care is a sub-set of that. There are items on Schedule 1 that can be done remotely - without direct contact.

[116] If there is a problem for the Executive then the Executive can correct it - section 1(2).

[117] The services which are in dispute in this case fall within the terms of the legislation as enacted and they are services for which no charge can be made. If the services fall within Schedule 1, whether or not they are personal care, they are to be provided free of charge.

[118] Assistance with the preparation of food is not chargeable - yet the defenders maintain that meals on wheels are chargeable. That is not a distinction which the Act allows the defenders to draw.

[119] The extra-statutory materials are only relevant if the court has any difficulty - but the Act is clear and supports the pursuer. There is no ambiguity and no need to need to look any further.

[120] In any event, a review of the extra-statutory documents simply shows a developing or fluid situation and one which was not moderated by lawyers. The background documents do not talk with a consistent voice. There is a complete lack of clarity in the background documents. There is nothing to be gained from them. They are certainly not determinative.

[121] On averment the pursuer brings himself within the provisions of the Act. The pursuer is entitled to the services free.

[122] In any event, any services provided by way of food preparation should not be charged for. The defenders must "strip out" the element of "assisting with the preparation of food".

[123] Meals and wheels and assistance with the preparation of food are care of the same "kind" - at least to the extent of the food preparation element.

[124] The pursuer is entitled to a proof before answer all pleas standing - so argued the pursuer.

The Authorities and References produced by the Pursuer

[125] I was also provided with copies of the following authorities and references by the pursuer.

1. Stair Memorial Encyclopaedia of the Laws of Scotland, Vol 12, paras 1101-1180, "Interpretation of Statutes, Deeds and Other Instruments" (part), J Fleming Wallace QC, particularly at paragraphs 1102-3 1105, 1107-9, 1114-6, 1124, 1133, 1135, 1138, 1141, 1149-1150, and 1162;

2. Stair Memorial Encyclopaedia, 2007 Cumulative Supplement, "Interpretation of Statutes, Deeds and Other Instruments", paragraph 1147;

3. Stair Memorial Encyclopaedia, Service Volume 2008, "Interpretation of Statutes, Deeds and Other Instruments";

4. R v Secretary of State for the Environment, Transport and the Regions ex parte Spath Holme Ltd [2001] 2 AC 349, Lord Bingham of Cornhill at pages 391B-392F;

5. Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 (see Defenders' Document No 22 above);

6. Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231, Viscount Dilhorne at pages 234-235, Lord Simon of Glaisdale pages 235-237, Lord Edmund-Davies at pages 237-238, Lord Fraser of Tullybelton at page 238 and Lord Scarman at pages 238-239.;

7. MacGregor v South Lanarkshire Council 2001 SC 502, Lord Hardie at page 506B-H;

8. R v Gloucestershire County Council, ex parte Barry [1997] AC 584, Lord Lloyd of Berwick at pages 599 C-D and 604A-B;

9. Article from The Courier and Advertiser dated 1 May 2008, page 4;

10. Article from The Courier and Advertiser dated 22 May 2008, page 5; and

11. Article from Scotsman.com News dated 10 July 2008.

Discussion

[126] As outlined above, the pursuer contends that on a proper construction of the 2002 Act the specified services (provided by the defenders to him and to his late wife) should have been provided free of charge. He seeks reimbursement of the charges paid.

[127] On the other hand, the defenders maintain that certain of those services were properly chargeable. They defend the principal action and also counter claim for additional sums due by the pursuer on the assumption that the services are chargeable.

[128] The critical differences between the parties involve questions of statutory construction.

[129] I have already set out (above) the pleadings and the statutory provisions - which lie at the heart of the debate.

[130] I have also outlined (above) the competing submissions of parties.

[131] Both parties refer to the same statutory provisions. Both parties refer to basically the same authorities and other references. Both parties seek to discover the intention of Parliament. Both parties, however, reach fundamentally different conclusions on the central issues - which now fall to the court to decide.

[132] My decision depends primarily on the precise words which Parliament has chosen to use in the statutory provision concerned.

[133] In relation to the main legal principles, I gratefully adopt the analysis of Lord Macphail in the case of Argyll & Bute Council v Scottish Public Services Ombudsman 2008 SLT 168 (Defender's Document No.18) - which is also reported at 2008 SC 155. I refer in particular to paragraphs [22] to [33], [69], [79] to [83], [92] to [97] and [105].

[134] In that case, Argyll & Bute Council v Scottish Public Services Ombudsman, Lord Macphail reached the conclusion in paragraph [68] that a particular result (supported by statements from Professor Bisset-Johnston and a passage in guidance) was not warranted by the terms of the legislation.

[135] In paragraph [69] Lord Macphail explained:-

"I have reached this conclusion with reluctance. I make the following observations. First, whether or not, if the issue had been drawn to its attention, the legislature would have wished to secure that where a person over 65 for whom a local authority had a duty or power in terms of SWSA was in residential care, he or she would receive personal care free of charge whether that care was provided by a local authority or otherwise, the question whether that object has been secured must be determined by the language that Parliament has employed, always bearing in mind that the duty of a court of construction is to determine Parliament's intention from the legislation. As Lord Nicholls observed in Wilson v First County Trust Ltd (No 2) [a reference to [2004] 1 AC 816 - Defenders' Document No. 22 in paragraph 58 at page 841D], even a ministerial statement, however explicit it may be, cannot control the meaning of an Act of Parliament. 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 sec 1 and the Regulations is in this respect unambiguous. Although it may be thought to lead to an unwelcome outcome, it is not susceptible of modification by the court in order to obviate that result (Craies, Legislation , para 18.1.2(3); Stock v Frank Jones (Tipton) Ltd, Lord Simon of Glaisdale, p 237E-F). The fundamental principle of the sovereignty and supremacy of Parliament requires 'clear and unambiguous words to be given their clear and unambiguous meaning, even in cases where one suspects that the legislature might have provided differently had a particular question or issue been exposed to them' (Craies, para 18.1.1)."

[136] Under the heading of "Identifying the intention of Parliament" Lord Macphail also said, at paragraphs [33] to [35]:-

"[33] The Ombudsman's counsel referred in some detail to the background to the enactment of sec 1 of CCHSA. As to the use of background material, reference was made to the speech of Lord Nicholls of Birkenhead in Wilson v First County Trust Ltd (No 2) (paras 56-59), where his Lordship discussed the decision of the House of Lords in Pepper v Hart. His Lordship said (para 56):

'The decision in Pepper v Hart... removed from the law an irrational exception. When a court is carrying out its constitutional task of interpreting legislation it is seeking to identify the intention of Parliament expressed in the language used. This is an objective concept. In this context the intention of Parliament is the intention the court reasonably imputes to Parliament in respect of the language used. In seeking this intention the courts have recourse to recognised principles of interpretation and also a variety of aids, some internal, found within the statute itself, some external, found outside the statute. External aids include the background to the legislation, because no legislation is enacted in a vacuum. It has long been established that the courts may look outside a statute in order to identify the "mischief" Parliament was seeking to remedy. Lord Simon of Glaisdale noted it is "rare indeed" that a statute can be properly interpreted without knowing the legislative object: Black-Clawson International Ltd v Papierwerke Waldhof-Aschagffenburg AG [1975] AC 591, 647. Reports of the Law Commission or advisory committees, and government white papers, are everyday examples of background material which may assist in understanding the purpose and scope of legislation.'

[34] His Lordship observed (para 57) that before the decision in Pepper v Hart a self-imposed judicial rule had excluded use of parliamentary materials as an external aid. His Lordship said (paras 58, 59):

'In relaxing this self-imposed rule the House enunciated some practical safeguards in Pepper v Hart. These were intended to keep references to Hansard within reasonable bounds. One of these safeguards is that the parliamentary statement must be made by the minister or other promoter of the Bill. In imposing this cautionary limitation the House was not, I believe, intending to attribute to ministerial statements some special status, thereby encroaching upon the court's constitutional task of determining objectively what was the intention of Parliament in using the language in question. A clear and unambiguous ministerial statement is part of the background to the legislation. In the words of Lord Browne-Wilkinson in Pepper v Hart... 635, such statements "are as much background to the enactment of legislation as white papers and Parliamentary reports". But they are no more than part of the background. As I emphasised in R v Secretary of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd [2001] 2 AC 349, 399, however such statements are made and however explicit they may be, they cannot control the meaning of an Act of Parliament.'

[35] Lord Nicholls went on to discuss the duty of the courts to evaluate the effect of primary legislation in terms of Convention rights and to note that the legislation must satisfy a 'proportionality' test. That is not relevant in the present case, but his Lordship said this (para 63):

'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.'"

[137] How do those principles, conveniently set out by Lord Macphail, fall to be applied in the present case?

[138] In short, try as I might, I am unable to agree with the pursuer's submission to the effect that all the statutory provisions are clear and unambiguous and in the pursuer's favour.

[139] On the contrary, I am satisfied that this is an appropriate case in which to look for guidance in background materials - and in particular to have regard to the statements made on 7 November 2001 by Mr Malcolm Chisholm, the then Deputy Minister for Health and Community Care at the meeting of the Scottish Parliament Health and Community Care Committee (which I have also set out above).

[140] I agree with counsel for the defenders that certain of the questions raised in this case were focussed during the legislative process and that the Deputy Minister gave a clear answer supporting the defenders' position. In particular, as noted above, Mr Chisholm was specifically asked inter alia:-

"If people have no mobility or memory or cannot feed themselves, dress themselves and so on, will you charge them for their housework and for someone to do their shopping?"

Mr Chisholm's reply was clear:-

"That has always been proposed under the definition of personal care. People can put up a contrary argument and say that all home care should be free. That is not being proposed at the moment. If someone did propose that, it would increase the cost of the policy".

[141] I have borne in mind all the pursuer's submissions but I am not persuaded that the statutory provisions before me, as enacted and when viewed objectively, achieve a different result.

[142] On the contrary, in my opinion, the statutory provisions reflect the views expressed by Mr Chisholm.

[143] In relation to food preparation, however, I am satisfied that the wording of the statutory provisions is clear and in the pursuer's favour. I agree with the pursuer that the provision of meals on wheels to the petitioner and his wife includes an element of "assisting with the preparation of food" and that the defenders should "strip out" that element. To that extent, the pursuer's argument prevails.

[144] In the result, having taken into account everything that has been said on behalf of both parties, I have reached the following conclusions in the present case.

[145] In my opinion, on a proper interpretation of the statutory provisions before me:-

(1) "Assisting with the preparation of food" is free of charge - by virtue of paragraph 2(a) of Schedule 1 to the Community Care and Health (Scotland) Act 2002.

(2) The meals on wheels service is chargeable. Meals on wheels are not fully covered by paragraph 2(a) of Schedule 1 to the Act. The provision of food is chargeable but there is an important qualification, namely, that "assisting with the preparation of food" is free of charge - by virtue of paragraph 2(a) of Schedule 1. The provision in relation to "assisting with the preparation of food" is a broad one and it is wide enough to apply whether or not food is being prepared as part of meals-on-wheels. It follows, in my opinion (using the wording from the issues as formulated by counsel) that "the defenders are not entitled to charge for the element of the charge for meals on wheels that is attributable to the preparation of food".

(3) The laundry services provided to the pursuer's late wife as a result of her incontinence should have been free of charge by virtue of paragraph 1(g)(i) of Schedule 1 to the Act. That provision covers "where the person is incontinent - (i) the consequential making of the person's bed and consequential changing and laundering of the person's bedding and clothing".

(4) However, the other laundry and housework services provided to the pursuer and his wife are properly chargeable. In my view, the pursuer has not averred a relevant case to bring himself within the provisions of section 1(1)(c) of the Act and paragraph 3 of Schedule 1. The statutory provisions exempt from charge the provision of care which is for: "if the person is immobile or substantially immobile, dealing with the problems of that immobility". The pursuer has relevantly averred that he is immobile or substantially immobile. I require to take the pursuer's averments pro veritate and in any event the question of immobility is a question of fact for proof. However, in my opinion, the nature of the laundry and housework services is not such as to qualify for the exemption from charge. On this point, I agree with the defenders' interpretation of the statutory provisions to the effect that it was not the intention of Parliament to draw a distinction favouring those who are "substantially immobile" - as opposed to others, for example, who are mobile but who have dementia. The care in issue is not directly "dealing with the problems of that immobility". I am re-enforced in that conclusion by the statement from Mr Malcolm Chisholm (outlined above). In my view, on a proper interpretation of the statutory provisions, the defenders are entitled to charge for the laundry and housework services provided to the pursuer and his wife.

[146] For completeness, in relation to the documents referred to, I should perhaps record:-

(a) that I have borne in mind that the law has developed since the Stair Memorial Encyclopaedia was first published;

(b) that I was not persuaded that the decision in Macgregor v South Lanarkshire Council 2001 SC 502 (Pursuer's Document No 7) was relevant for present purposes; and

(c) that it was not suggested by counsel that I should place reliance on what appeared in newspaper cuttings.

Decision

[147] As mentioned at the outset, the two issues to be decided in this case were formulated by counsel as follows, namely:-

Question (1). "Has the pursuer averred a relevant case that under the 2002 Act the defenders were not entitled to charge for services provided on account of their customer's / client's substantial immobility by way of laundry, housework and meals on wheels?"

Question (2). "In any event, has the pursuer averred a relevant case that under the 2002 Act the defenders were not entitled to charge for the element of the charge for meals on wheels that is attributable to the preparation of food?"

[148] In my opinion, on a proper interpretation of the legislation before me and for the reasons outlined above, those two questions are answered as follows:-

Answer (1) "No."

Answer (2) "Yes."

In other words, the defenders' arguments prevail in relation to Question 1 - but the pursuer's arguments prevail in relation to Question 2.

[149] In light of my decision, parties will require to consider inter alia the question of how to quantify "the element of the charge for meals on wheels that is attributable to food preparation" during the relevant period. That is not a matter that I can resolve - at least not at this stage. I shall reserve all questions of quantum.

[150] As noted at the outset, I have not been addressed on The Community Care and Health (Scotland) Act 2002 (Amendment to schedule 1) Order 2009 (SSI 20009 No 137).

[151] Finally, on a relatively minor matter, I agree the pursuer's averments about the practice of other local authorities in relation to food preparation are no longer relevant - the point having been conceded by the defenders. Accordingly, those averments fall to be excluded from Article 7 of Condescendence. That can be dealt with by amendment or by order of the court.

[152] Having decided the issues of principle, and as requested by counsel, I shall put the case out By Order to consider further procedure.

[153] Meantime, I shall reserve all questions of expenses.