Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 183

P1272/14

OPINION OF LORD JONES

In the Petition

FRANK WILLIAM FLETCHER, AS GUARDIAN IN PROPERTY AND FINANCIAL MATTERS OF LISA JOANNE SMART

Petitioner;

for

Judicial review of the failure of Fife Council to carry out their statutory duty under section 12A of the Social Work (Scotland) Act 1968

Petitioner:  Bartos;  Digby Brown LLP

Respondents:  Carmichael QC;  Balfour & Manson

30 December 2015

Introduction

[1]        The petitioner was the guardian in property and financial matters under part 6 of the Adults with Incapacity (Scotland) Act 2000 of Lisa Joanne Smart, who is referred to in the petition as “Lisa”, for an indefinite period, having been appointed on 25 July 2006.  The respondents are a local authority within the meaning of the Social Work (Scotland) Act 1968 (“the 1968 Act”).  Two of their decisions are challenged on the ground that the respondents acted in breach of their statutory duties in respect of Lisa’s care in the community.  During the course of drafting this opinion, I was informed that, sadly, Lisa died on 7 December 2015.

The relevant statutory duties

[2]        Section 12A(1) of the 1968 Act provides that, where it appears to a local authority that any person for whom they are under a duty or have a power to provide “community care services” may be in need of such services, the local authority must:  

(a) assess the needs of that person for such community care services; and

(b) decide, having regard to the results of that assessment and taking account of certain specified matters, whether the needs of the person being assessed call for the provision of such community care services. 

[3]        Until the repeal of section 12B(1) of the 1968 Act on 1 April 2014, if a local authority decided that the needs of the person called for the provision of a community care service, and if the person was not of a description specified in regulations, the local authority had a duty under that section to make to the person, “in respect of his securing the provision of the service, a payment of such amount… as they determine to be appropriate”.  From 1 April 2014, the duty under section 12B has been replaced by the duty, under section 5 of the Social Care (Self-Directed Support) (Scotland) Act 2013, to offer to such person the choice of a number of funding options, one of which is the making of such a payment.

The factual background

[4]        Lisa was born on 2 November 1980.  On 27 October 2002, whilst out on foot, she was struck by a motor vehicle and sustained serious head injuries.  As a result of brain injury, Lisa was unable to walk or stand unaided.  She was fed by a percutaneous endoscopic gastrostomy tube.  She was unable to speak, but could communicate to a degree, using limited movements.  She suffered from post-traumatic epilepsy.  The petitioner, as Lisa’s financial guardian, raised an action against the driver of the motor vehicle.  The action was settled for a payment of £5,100,000.  The money received was placed into The Lisa Smart Personal Injury Trust, which was set up by deed of trust dated 19 June 2007.  The maintenance of Lisa was not the sole purpose of the trust.

[5]        Upon Lisa’s release from hospital, on or about 20 December 2005, she was cared for at Bandrum Nursing Home, Saline, Fife (“Bandrum“).  Initially, the respondents paid for the costs of Lisa’s care while at the nursing home.  Lisa did not have suitable alternative accommodation.  The accommodation and care at Bandrum was provided by the respondents following an assessment by them under section 12A of the 1968 Act and in fulfilment of their duty under section 13A of the Act.  On or about 23 May 2006, the respondents carried out a means test and ceased to pay for the care, other than by making a fixed rate payment of £65 per week.  On or around 26 October 2006, Lisa’s capital had fallen below the relevant limit of £20,000, whereupon the pursuer invited the respondents to carry out a further financial assessment.  After doing so, the respondents recommenced payments to Bandrum in respect of Lisa’s care and accommodation.

[6]        Lisa’s parents were appointed her personal welfare guardians on 25 July 2006.  In 2007, they proposed that Lisa be moved from the nursing home to a suitable property to be purchased for adaptation and to which they could also move and care for her with outside assistance.  Such a property was purchased in September 2007.  In September 2008 Lisa was moved from the nursing home to her new home in Dunfermline.  By letter of 9 January 2009 to the petitioner, the respondents intimated that they would provide a payment of £43,600 per annum towards Lisa’s care needs, subject to annual or more frequent review.  By letter of 23 August 2010 the respondents intimated that, as money from the settlement of the court action was being used to fund Lisa’s care package, joint funding from the respondents and the local health board would not be provided.

[7]        By letter of 30 August 2010, the petitioner wrote to the respondents, making a new application for funding of Lisa’s care.  By letter of 3 July 2012 the respondents produced a document, dated 25 April 2011, headed “eSSA Template – For Admin Input to SWIFT Reports Tab”.  The document was an assessment, under section 12A(1)(a) of the 1968 Act, of Lisa’s needs at the time.  Asserting that the respondents did not make a consequent decision under section 12A(1)(b) of the 1968 Act, the petitioner presented a petition for judicial review of the respondents’ alleged failure to make such a decision and any consequent decision under section 12B of the 1968 Act.  The respondents did not enter the process or lodge answers.  On 22 March 2013, the Lord Ordinary pronounced an interlocutor ordaining the respondents to make such decisions as appropriate.  In this action, the petitioner avers that the interlocutor remains to be complied with.

The present dispute

[8]        On their own initiative, the respondents carried out a further assessment of Lisa’s needs, under the provisions of section 12A(1)(a), as at 5 August 2013.  The assessment was intimated to the petitioner on or about 4 September 2013.  It contained details of Lisa’s disabilities and noted that Nurseplus attended Lisa’s daily needs.  Nurseplus is a private commercial care provider.  The petitioner avers that the assessment noted the following:  Lisa used eye contact to communicate her feelings and wishes;  during the night she required to be turned in bed several times; she required to be fed through button gastronomy with four bolus feeds daily;  she required to have a catheter in place;  Lisa had been diagnosed as suffering from type two respiratory failure and was fully dependent on a ventilator;  she required a nebuliser up to six times daily, and chest physiotherapy four times daily;  Lisa was unable to self-mobilise, or to communicate or attend to personal care without the full support of her care team;  and Lisa obtained physiotherapy from a private provider.

[9]        The petitioner avers that, on or about 31 October 2013, the respondents made a decision, under section 12A(1)(b), that Lisa’s needs did not call for the provision of any community care services as defined in section 5A of the 1968 Act.  That decision was intimated to the petitioner by letter dated 31 October 2013, and is the first of the two decisions which are under challenge in these proceedings.  It is averred that, in the same letter, the respondents intimated a decision, under section 12B of the 1968 Act, that no payment was appropriate.  That is the second decision which is under challenge.  The petitioner avers that, before making the decision under section 12B, the respondents “did not carry out any assessment (‘means test’) of Lisa’s ability to contribute to the cost of community care services” (as defined in section 5A of the 1968 Act).  He further avers that the respondents did not assess or break down the compensation award for the purposes of a means test.

[10]      The decision letter reads as follows:

“I refer to my recent letter to you of 1 October 2013 which was in relation to the re-assessment of need completed by a Social Worker from the local team and to the previous assessment which was carried out in April 2011.

As with the assessment carried out in April 2011, the most recent assessment concludes that the current Care Plan should remain in place as it adequately meets Lisa's assessed needs. On the basis of the assessment carried out in April 2013 which was forwarded to you on 6 September 2013 I am satisfied that there is no element of unmet need relating to Lisa at present. As such I am satisfied there is no requirement for the provision of services from the Council at this time.  [The first decision.]

In carrying out the assessment and with the approval of Mr and Mrs Smart, Lisa's Welfare Guardians, the Social Worker consulted with a range of individuals involved with Lisa's care and support. In particular the views of relevant medical staff including dietician and Lisa's key nurse were considered. In addition the views of Lisa's carers and of Mr and Mrs Smart in their capacity both as Lisa's carers and her Welfare Guardians were ascertained and taken into account. It was considered Lisa lacked capacity to express a view herself.

I have also considered what payment the Council should make in terms of Section 12B of the Social Work (Scotland Act 1968). I have had regard to the fact that at present Lisa's needs are being adequately met and it would appear the means are available to provide for her care for the foreseeable future. In the circumstances it appears to the Council that no payment is appropriate in terms of S12B at present. 

[The second decision.]

If Lisa's circumstances change then obviously we will review/reassess her needs at that time and if at that time any unmet needs are identified we will make any necessary arrangements to meet these needs given these changed circumstances.”

[11]      Each of the decisions is challenged on a construction which the petitioner puts on the relevant statutory provisions which are set out in the decision section of this opinion.  The case came before the court for a first hearing on 1 May 2015.  Parties subsequently lodged supplementary written submissions.

The parties’ submissions

[12]      Mr Bartos, who appeared for the petitioner, submitted that the respondents failed to carry out an assessment of Lisa’s needs, as they were required to do in terms of section 12A(1) of the 1968 Act.  If they did carry out such an assessment, they took into account an irrelevant consideration.  Further, he contended that the respondents failed to comply with the provisions of section 12B of the Act, which, Mr Bartos argued, required them to determine “the reasonably estimated cost of the community care services that Lisa’s needs call for”.  In the absence of a means test, the respondents should have offered to pay such cost.

[13]      Miss Carmichael, who appeared for the respondents, argued that, on the proper construction of section 12A(1), the respondents did what the terms of the legislation required them to do.  On that construction, they were not required to apply their mind to the provisions of section 12B.  Counsel submitted that, in any event, the petitioner had failed to exhaust an alternative statutory remedy that was available to him and, consequently, his application for judicial review is incompetent.  In support of that submission, counsel referred to the decision in McCue v Glasgow City Council 2014 SLT 891 (“McCue”).

[14]      The detail of counsels’ respective submissions is set out in the following section of this opinion.

Decision and reasons

Competency

[15]      It is appropriate to deal first with the competency point.  It could only succeed if it were demonstrated that the petitioner had available to him an effective alternative remedy which he has failed to exhaust.  In their answers to the petition, the respondents aver that such a remedy was provided by their complaints procedure.

[16]      That document, which is entitled “A guide to Social Work comments, compliments and complaints”, has been produced by the respondents, and is number 7/2 of process.  The guide extends to just five pages of text and makes no reference to what remedy, if any, might be available to a person in the position of the petitioner.

[17]      In the course of her oral submissions, Miss Carmichael referred me to a number of passages in McCue.  It is clear from what is said at paragraphs [11] to [15] of the opinion that the court had before it a detailed and comprehensive complaints procedure which had been issued by Glasgow City Council in July 2002.  It was by reference to that procedure that the court was able to determine that the council’s complaints procedure provided the petitioner in that case with an effective alternative.  Glasgow City Council’s procedure is appended to the opinion in McCue, and it can be seen that the council had in place a Complaints Review Committee (“CRC”), the composition of which was prescribed so as to ensure what was regarded as an appropriate level of independence and expertise.  Provision was made for the taking of evidence, and the powers of the CRC were expressly provided for, including re‑assessment of the client’s circumstances, financial recompense to the complainant, and “other steps necessary to offer the complainant redress.”

[18]      If the respondents in this case have such a complaints procedure, I was not provided with a copy.  In any event, on the basis of the information which was provided to the court, I am unable to find that this application is incompetent because the petitioner had available to him an effective alternative remedy which he did not exhaust.

The challenged decisions

[19]      Section 12A(1)(a) of the 1968 Act requires a local authority to make an assessment of the needs of any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services.  The expression “community care services” is defined in section 5A of the Act to mean services “which a local authority are under a duty or have a power to provide, or to secure the provision of” under various statutes, including section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“the 2003 Act”).  It is the petitioner’s position that the 2003 Act applies in this case, and that is not challenged by the respondents.  Section 25(1)(a) of the 2003 Act requires a local authority (i) to provide, for persons who are not in hospital and who have or have had a mental disorder, services which provide care and support or (ii) secure the provision of such services for such persons. 

[20]      Miss Carmichael’s submission on the proper construction of section 12A(1) was a short one, and it is appropriate to address it first.  Counsel observed that section 12A(1)(a) requires a local authority to “make an assessment of the needs of that person for those services.”  There is no dispute between the parties, said Miss Carmichael, that Lisa had “needs”.  But section 12A(1)(b) provides that, once an assessment has been carried out, the local authority “shall then decide” whether the needs of the person being assessed “call for the provision of any such services”.  Counsel summarised the petitioner’s position as being that, if a person has needs, that means that they have needs for services, and, regardless of who is providing these services, if the assessment is that there is a need for them, one then moves on to apply the terms of section 12B, and the person can ask for a payment.  That, submitted counsel, is wrong.  The context for the decision which is required by section 12A(1)(b) is to be found in subsection (1).  “The context is clearly one about a local authority having to find out whether it needs to do something.”  (Counsel’s emphasis)  “It is in the context of a person for whom they have a duty or a power to provide or to secure the provision of community care services.”  Consequently, in the circumstances of this case, the respondents’ duty was to determine what Lisa’s needs were and, having found out that they were being provided for, they were “quite right” to say that there was “no call for the provision of such services”, because such services were, in fact, being provided.  That, argued Miss Carmichael is the “short answer” to the petitioner’s position on section 12A.

[21]      I disagree with Miss Carmichael on her construction of section 12A(1).  The context is not about a local authority having to find out whether it needs to do something.  The phrase that she relies on in support of that contention simply identifies the person whose needs are to be assessed, that is any person for whom the local authority are under a duty to provide or secure the provision of services.  Once that person has been identified, the decision which the local authority must take is not whether there is a call or, as counsel put it, “no call”, for the provision of services, but “whether the needs of the person being assessed call” for the provision of services.  That question stands quite apart from the question whether or not the person’s needs are being met. 

[22]      In Robertson v Fife Council 2002 SC (HL) 145 (Robertson), which both Mr Bartos and Miss Carmichael cited in support of their arguments, counsel for the local authority argued that an assessment of the person’s means was a necessary part of the process of deciding whether a person’s needs “call for” the provision of any of the services.  (Paragraph 22) Lord Hope described the issue as being whether the local authority are entitled to have regard to the person’s capital assets when they are considering, under section 12A(1)(b), whether the person’s needs “call for” the provision of services by them.  In determining the matter, Lord Hope said that the exercise which is carried out under section 12A(1) falls into two stages.  The first is to assess the needs of the person.  “The second is to decide, having regard to the results of that assessment, whether the needs of that person ‘call for’ the provision of any such services”.  (Paragraph[51]) At paragraph [52], his Lordship expressed the view that the words “call for” “are directed to the person’s needs for any of the services which the local authority is able to provide, not to the question whether the person is able to pay for them.”  His Lordship found support for that view in the terms of section 12A(2), which provides that, before deciding “that the needs of any person call for the provision of nursing care, a local authority shall consult a medical practitioner.”  To read Lord Hope’s reasoning across to the circumstances of this case, the words “call for” are directed to the person’s needs for any of the services which the local authority is able to provide, not to the question whether the needs are currently being met.

[23]      Miss Carmichael’s construction requires a rewrite of section 12A(1)(b), so that it would read that the decision which a local authority are required to make is “whether the needs of the person being assessed call for the provision of services by or secured by the local authority”.  (My emphasis) If that was what the provision was intended to mean, there is no reason why it could not have been drafted in those terms.  Further, Miss Carmichael’s construction fails to recognise that, in order to comply with the duty or exercise the power “to secure” services, a local authority must, where necessary, (i) source, and (ii) fund the provision of, the services.  On the first of these, subsection (5) of section 12A, for example, makes reference to a local authority “providing or arranging for the provision of community care services”.  That there is a funding element is demonstrated by the terms of section 12B(1) which provides that, where a local authority have decided that a person’s needs call for the provision of a community care service, they have a duty to make a payment of such amount as they determine to be appropriate “in respect of his securing the provision of services”.  In performing its duty or exercising its power to secure the provision of services, therefore, the local authority must apply its mind, at the appropriate stage in the process, not only to whether they need to source the services but also to whether they need to fund the provision of the services.  The appropriate stage for determining the latter comes once the local authority have decided that a person’s needs call for the provision of community care services.  On Miss Carmichael’s construction, if services are in place and the person’s needs are being met, the local authority does not have to apply its mind to the question of funding.  Having regard to the provisions of the scheme, that is not what the legislature intended.

[24]      On a consideration of the terms of the eSSA form which was completed in April 2011, and of the terms of the note of the assessment as at 5 August, it is clear that the respondents made an assessment of Lisa’s needs for “services which provide care and support”.  Section 25(3) of the 2003 Act defines “care and support” as including “personal care and personal support”.  “Personal care” is defined as “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)”.  “Personal support” is defined as “counselling or other help, provided as part of a planned programme of care”.  (Paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010)  The assessment which was undertaken in April 2011 and reviewed in August 2013 disclosed that Lisa had needs which called for the provision of personal care and personal support services.  The decision which the respondents then had to take, in terms of section 12A(1)(b), was whether Lisa’s needs “call(ed) for the provision of any such services”.  In other words, were her needs such that she required personal care and personal support?  Clearly they were.  At that stage, therefore, section 12B came into play.  So far as is relevant to this opinion, section 12B provided as follows:

“(1) Where, as respects any person—

(a) a local authority

(i) have decided under section 12A of this Act that his needs call for the provision of any service which is a community care service;

…

the authority shall… make to him, in respect of his securing the provision of the service, a payment of such amount as, subject to subsection (2) below, they determine to be appropriate.”

[25]      Since the respondents had decided, under section 12A, that Lisa’s needs called for the provision of the relevant services, it was then their duty to determine ”such amount” as it was appropriate to pay in respect of her securing those services.  I say more about section 12B later in this opinion, but it is worthy of note that the formulation used in section 12B(1)(a)(i) “have decided… that his needs call for the provision of any service which is a community care service” does not permit, far less require, the local authority to have regard to whether or not such service is being provided by a third party.

[26]      During the course of the hearing, Miss Carmichael was asked what would happen if:  (i) the person’s needs were being met by a care provider, other than the local authority or a provider secured by them;  (ii) the care provider was being paid by the person in respect of whom the local authority owed a duty in terms of section 12A;  and (iii) the person was unable to afford such payment.  It was suggested to her that, on her construction, once the local authority had determined that the person’s care needs were being met, that would be the end of the matter, because the local authority would not be required to consider the provisions of section 12B.  She replied that it would be for the person to raise that matter with the local authority.  In Robertson, however, Lord Hope of Craighead explained that, at no point during the application of the terms of section 12A, is it open to a local authority to consider the person’s means.  “There is no indication anywhere in this section that it is concerned with the person’s means or that it is proper to take account of the person’s capital at any stage during the exercise of assessment.”  (Paragraph [52])

[27]      At statement 13 of the petition, it is averred on behalf of the petitioner that the respondents did not ask themselves whether Lisa’s needs as set out in the assessment of 5 August 2013 called for the provision of community care services as defined in section 5A of the 1968 Act.  They did not ask themselves whether her needs required care relating to her day-to-day physical tasks and needs, such as eating and washing and to the mental processes relating to those tasks and needs or whether she needed counselling or other help as part of a planned programme of care.  “Instead”, the petitioner avers, “they asked themselves whether Lisa’s needs required the provision of services from themselves.”  The definition of “community care services” in terms of section 5A, it is said, does not require their provision by a local authority. 

[28]      The petitioner goes on to aver that, if the respondents asked themselves the correct question in deciding that there was “no element of unmet need relating to Lisa”, then they took into account that Lisa was being cared for by a commercial body which requires to be paid to carry out care for Lisa.  Implicitly they took into account the ability of Lisa or the petitioner, as her financial guardian, to fund Nurseplus.  The pleadings continue as follows:

“They took into account that Lisa received private physiotherapy every week. Implicitly they took into account the ability of Lisa or the petitioner to fund the private physiotherapy. In reaching their decision under section 12A(1)(b) the respondents were not entitled to take account of the ability of Lisa or the petitioner as her financial guardian to fund the provision of community care services as defined in section 5A of the 1968 Act. The ability of Lisa or the petitioner as her financial guardian to fund the community care services which are called for by her needs fell to be taken into account under section 12B of the 1968 Act as averred below. The respondents erred in law in reaching the decision under section 12A(1)(b) which they did. Separatim the decision which they reached was irrational. No reasonable local authority asking itself the correct question under section 12A(1)(b) would have concluded that Lisa’s needs did not call for the provision of any community care services.”

[29]      For the reasons which I have given in rejecting Miss Carmichael’s submissions on the construction of section 12A(1), I agree with Mr Bartos as to the questions that the section requires a local authority to address.  I reject his contention, however, that the respondents asked themselves the wrong question.  That assertion appears to proceed on a misunderstanding of the terms of the decision letter.

[30]      On a reading of the second paragraph of the letter of 31 October 2013, it is clear that the respondents assessed Lisa’s needs.  They did so in April 2011 and they did so, again, in August 2013, and the letter refers to both assessments.  The decision which the respondents then took in terms of section 12A(1) was that her needs called for the provision of services.  That is implicit in the respondents’ observation that “the most recent assessment concludes that the current Care Plan should remain in place as it adequately meets Lisa’s assessed needs.”  Expressing satisfaction that there was “no element of unmet need relating to Lisa at present” was another way of saying the same thing.  That there was no requirement at that time for the provision of services by the respondents was a statement of fact, based on the outcome of the assessment.

[31]      The fourth paragraph of the letter records that the respondents next had regard to the terms of section 12B of the 1968 Act.  In the circumstances, they were under a duty to do so, for the reasons that I have given.  The petitioner contends that the respondents had a duty to offer to make such payment to the petitioner as they determined to be appropriate in respect of the securing of care services.  I agree with that, because it is what the section says, but I do not agree with the contentions which follow: that the respondents were bound to do so [meaning to make a payment of an amount] unless a means test had been carried out, which demonstrated that Lisa was able fully to fund the services in question;  in the absence of a means test the respondents should have made an offer to pay what they reasonably estimated was the cost of the services that Lisa’s needs called for.

[32]      Provision was made in Section 12B for the powers and duties of a local authority in light of, or in the absence of, an assessment of the person’s ability to contribute to securing the provision of the service in question.  Subsection (1A) gave the local authority power to determine the amount of any payment made to the person, on the supposition that he had no such ability.  Subsection (1A) was subject to subsection (5A), which was concerned with repayment by the person to the local authority in light of a means test.  The terms of subsection (1A) and of subsection (5A) are, therefore, not relevant to the circumstances of this case.  Subsection (2) applied (i) where a local authority paid the person at a rate below their estimate of the reasonable cost of securing the services, and (ii) the person to whom payment was made satisfied the authority that his means were insufficient for it to be reasonably practicable to make up the difference.  In these circumstances, the authority was required to adjust the payments to the person so as to avoid there being a greater difference than that which appeared to the local authority “to be reasonably practicable for him to make up”.  There was no provision relevant to the circumstances of this case which required the local authority to assess the person’s ability to pay, in determining the appropriate amount payable to the person.

[33]      It is acknowledged on behalf of the petitioner, in the contentions that are set out above, that, in a case where there was a means test, and if it established that the person had the ability to pay for the services in full, the local authority would have been entitled to make no payment.  That acknowledgement, however, conflicts with Mr Bartos’ construction of section 12B(1) because, in his submission, section 12B(1) places a requirement on the local authority which, in the circumstances of this case, is unqualified, to pay an “amount”.  In my opinion, what operated to permit the local authority to make no payment in terms of section 12B(1), where the person was assessed as able to pay in full, was the provision that the authority was to pay only “such amount” as they determined to be appropriate.  It was that provision that entitled the local authority to determine that the payment of no amount would be appropriate.

[34]      Where a local authority determined that it was appropriate to make no payment, in the absence of an assessment of the person’s means, it would have been expected that the local authority would act in good faith.  Injustice would have been avoided by resort to the terms of section 12B(2).  In this case, the petitioner avers, and the respondents admit that, by letter dated 23 August 2010, the respondents intimated that, as money from the settlement of the court action was being used to fund Lisa’s care package, joint funding from the respondents and the local health board would not be provided.  As has been seen, in the letter of 31 August 2013, the author advised that it appeared that means were available to provide for Lisa’s care for the foreseeable future.

[35]      For the foregoing reasons, the petitioner’s challenge to each of the decisions intimated in the letter of 31 October 2013 fails.  In summary, it appeared to the respondents that Lisa was a person for whom they were under a duty or had a power to provide, or to secure the provision of, community care services and that she may have been in need of such services.  (Section 12A(1))  The respondents made an assessment of her needs for those services (section 12A(1)(a)) and decided that her needs called for the provision of such services.  (Section 12A(1)(b))  Having made that decision (section 12B(1)(a)(i)), the respondents determined that it was appropriate to make no payment in respect of Lisa’s securing the provision of the service.  (Section 12B(1)(b))

[36]      I have mentioned that the petitioner avers that, in March 2013, the Lord Ordinary pronounced an interlocutor ordaining the respondents to make certain decisions and that the interlocutor remains to be complied with.  The petitioner seeks

“declarator that in making… the decision under section 12A(1)(b) of the Act of 1968 as ordained by the interlocutor of Lord Boyd of Duncansby dated 22 March 2013, the Respondents are not entitled to take into account the provision of community care services (as defined in section 5A of the Act of 1968) to Lisa by Nurseplus or any other person providing services in the course of a business or for payment in money or kind”. 

I was informed during the hearing that the respondents are the subject of a separate process at the instance of the petitioner in which it is alleged that they failed to comply with that interlocutor, and I was invited to continue consideration of the declarators sought to a further hearing.  In light of my determinations on the challenges to the decisions intimated on 31 October 2013, that will not be necessary.

Disposal

[37]      I will repel the pleas-in-law for the petitioner and the first plea-in-law for the respondents; sustain the second and fourth pleas-in-law for the respondents, and dismiss the petition. I shall find the petitioner liable to the respondents in the expenses of process.