Richard Godden: The law can offer help with elderly care

THE middle classes need to overcome several obstacles when they attempt to find a place for a loved one in a care home, according to a new report by the charity, Independent Age.

One is different costs in different places. One London borough, for example, pays no more than £451 a week for care home bills, but a few miles away another will cover costs of £952.50.

There is no such discrepancy, of course, in Scotland, where this rate doesn’t vary from one local authority to another. And in any case, the cost of personal care in Scotland is free, is it not – whether the recipient comes from a council estate or the Grange or Kelvinside?

Well, not quite. In Scotland, everyone is entitled to free personal or nursing care on the basis of need, regardless of their background and financial situation. However, personal care is only a relatively small part of residential care, so a substantial part of the total cost will be charged to the recipient, depending on capital assets and level of income.

This is why one of two issues that family members have concerning an elderly relative relates to the means-testing of those receiving care, which obviously determines how much they have to contribute; the other is the assessment process by which local authority decides if a person requires personal or nursing care.

Anyone who does not agree with the ruling is entitled to go to a properly constituted appeals body. If that appeal is refused, then that is the end of the official road – but there is always the option of going to law.

The case would have to go to a judicial review, which can be heard only by the Court of Session and, therefore would involve an advocate. In theory, that should put things beyond the financial reach of most people, though legal aid could be available.

People not eligible for legal aid may find that there is an advocate prepared to take on the case at a reduced or zero fee. The reason is that the cost and assessment of personal care is largely untested in case law, and a successful outcome is generally reckoned to have some kudos, especially to an up-and-coming member of the Faculty of Advocates.

• Richard Godden is a partner with McKay Norwell WS