Care of the elderly and, in particular, the cost of this care is one of the most important concerns in our society.  Many families struggle to pay high care home fees.  Often, the care home arranges a "charge" (a form of security) over any property owned by the elderly person in question to cover the costs. This can diminish or even wipe out their family's inheritance.

Our client, Robert McMillan, has instructed us to raise a court action which could radically alter the whole landscape of this area of Scots law.

Robert's mother, Violet, who was a resident in Rawyards Care Home in Airdrie for a year up until her death in June 2012.  She paid fees to the care home over that period of over £6,000.

Robert seeks to argue that this sum should have been paid by the NHS on the basis that his mum required to stay in the care home primarily for health reasons.

Over the last few years, there have been a couple of cases from the English Court of Appeal which assist Robert's argument.  The judges in England confirmed that if an individual was in a care home primarily for health reasons rather than just for social care reasons then the NHS should be responsible for those fees.  This is on the basis that, in these circumstances, the care home is, in effect, a hospital.  

We commissioned a report from an expert Consultant who specialises in this area of medicine, namely Dr Philip Howard.  Dr Howard has confirmed that, in his opinion, Violet was suffering from severe dementia and was described as having "terminal care needs".  He summarises his opinion by saying that she had "severe primary health needs necessitating institutional care and attention".

As perhaps expected, the NHS have refused to pay the care costs and we are now in the process of obtaining legal aid for Robert to pursue an action in the Court of Session in Edinburgh against the local Health Board to recover the sums his late mother had to pay.

There has never been a case of this kind in Scotland and, accordingly, Robert's action could prove to be a milestone.  If he is successful, then elderly people who are in care homes throughout Scotland, primarily due to health needs, could insist that the NHS pay for their care home costs.  The savings to families throughout Scotland and, correspondingly, the cost to the NHS could be enormous.

Many people, on both sides of the fence, will be watching this case with great interest.