The Scottish Government

Scottish Executive Response to Office of Fair Trading (OFT) report: Care homes for older people in the UK

Scottish Executive Action Plan

Introduction

1. The Scottish Executive welcomes the OFT market study of care homes for older people in the UK. Responsibility for social care in Scotland is devolved to the Scottish Executive (although responsibility for consumer protection is not). The OFT's identification of areas where the care home market is not functioning well for older people as consumers is clearly valuable. In particular, the report is timely in that the concerns about inappropriate pressure for residents to top up their fees correspond with the Executive's own investigation of the issue, following media reports earlier in the year.

2. Choice and availability of high quality services to meet individual needs are long standing objectives for community care in Scotland. These principles were reinforced most recently in 'Better Outcomes for Older People - Framework for Joint Services', published earlier this year. The Executive agrees with the aims behind the OFT's recommendations that care home residents (and prospective residents) should have access to information and support to enable genuine choice and greater security in their living arrangements.

3. The OFT's recommendations as they apply to Scotland are directed not only at the Executive, but also at local authorities, care homes, the Care Commission and the Social Work Inspection Agency, who all have a role in ensuring that residents have access to the information and support they need. We have discussed the OFT recommendations with these and other stakeholders and some of this response draws on those discussions. In taking forward the actions identified below, it will be important for the Executive to continue to work with these stakeholders.

4. Alongside the recommendations directed at the Executive, a number of the issues identified in the OFT report relate to the inconsistent application of legislation, guidance and the care standards. This raises issues of inspection and improvement, where the Care Commission has an important role to play in respect of care homes and the Executive, through the Social Work Inspection Agency (SWIA), has a role in respect of local authority provision of social work services.

5. The remainder of this response addresses those recommendations directed at the Executive.

Information on moving into a care home

OFT Recommendation: Government should establish a central information source or "one-stop-shop" for people to get information about care for older people. This could, for example be an internet site supplemented by a telephone helpline or a one-stop-shop with information about care for older people.

6. While much of the information that prospective residents need to choose a care home is available, it is held in a number of different places which can make it difficult to access:

• The Scottish Executive has published a free advice booklet entitled 'Thinking about moving into a care home'. This details people's rights to have their care needs assessed, their right to choose their care home and how their financial contribution is calculated. It has been widely distributed (including online) and well received for the clarity of the information provided.
• Voluntary organisations provide information and advice on a range of topics, including community care.
• Care Commission information on care home provision is available online or over the telephone.
• Local authorities generally provide advice and local care home information.

7. The Executive agrees with the OFT's analysis that an authoritative central information source would be valuable, because this information is often needed quickly, and should be as clear and accessible as possible. The Executive therefore accepts this recommendation.

8. As the OFT report recognises, there are clearly a number of potential routes for a central information resource about the care homes system. The Executive will work with existing information providers to develop a central information service which builds on and links into existing information and advice, including that noted above. It will be important for the service to include the capacity to explain the care options, including care at home.

OFT Recommendation: Government should clarify the guidance on the Choice of Accommodation Directions to make it clear that self-funded older people with an assessed need should have access to the same advice, guidance and assistance on choice as older people receiving public funding. We also recommend that Authorities ensure that self-funded older people with an assessed need get advice after the test of their financial assets and entitlements and are guided during the whole process of setting their care needs if they so wish. Care home regulators and inspectorates should monitor that authorities do this either through their own social services departments or through "out-sourcing" the task of guiding self-funders.

9. Executive guidance is already clear on this issue. Entitlement in Scotland to free personal care for anyone over 65 assessed as needing it means that local authorities are already responsible for providing personal care to older people in care homes who would otherwise be self funding. The Executive's existing guidance on Choice of Accommodation states that people who choose fully to meet care home costs independently should be provided with the same advice, guidance and assistance on choice as fully or partially public-funded individuals. Executive guidance also advises local authorities of their responsibility to "make arrangements for residential care for any person whose care assessment indicates it is required regardless of their ability to pay".

10. The OFT findings indicate that existing guidance is being inconsistently applied. We will work with COSLA and through SWIA to consider the best way to address this.

Price transparency

OFT Recommendation: Care homes should provide the price in writing of accommodation and residential or nursing fees promptly and prior to the older person making a decision to enter the home. Government should amend the relevant regulations to include this as a requirement.

11. We agree with OFT that clear information on price is essential to enable older people and their representatives to make an informed choice on the care home that is right for them. The National Care Standards for Care Homes for Older People already require the service provider to give an introductory pack to potential service users including details of charges and the services they cover.

12. As the OFT has uncovered evidence that care homes are not providing pricing information quickly enough, the Executive is sympathetic to the recommendation that this requirement should be strengthened. The Executive will therefore consider the most appropriate way to create a clear requirement for care homes to provide information about prices prior to the individual choosing a care home and take appropriate action.

Contracts

13. The Executive agrees with the OFT on the importance of clear written contracts or statements of terms for care home residents. The National Care Standards for Care Homes for Older People state that residents should receive a written agreement which clearly defines the service that will be provided. It should also set out the terms and conditions of accommodation and residence, including an individual's rights to live in the home, payment arrangements and arrangements for changing or ending the contract. The contract must be provided in a format that the resident understands.

14. The Executive is concerned that this standard appears not to be met in all cases. We welcome the ongoing work between COSLA, the Association of Directors of Social Work (ADSW) and care home representatives to improve the quality and consistency of contracts for residents receiving local authority support. We also welcome the Care Commission's proposal to theme one of its 2006/07 inspection rounds of care homes (which require to be inspected at least twice a year) on contracts and pricing, in response to the OFT report.

OFT Recommendation: We recommend that the Department for Health and, as far as it is within their power to do so, the devolved administrations, amend relevant legislation and guidance so that Authorities are responsible for contracting and paying for the full costs of accommodation, including any top-up fees.

15. The Executive recognises that ensuring that local authority contracts cover the full costs of accommodation provides a degree of protection from inappropriate demands for top-up payments for local authority supported care home residents. We agree with OFT that authorities need to be aware of the patterns in care home charges, including top-ups.

16. The Community Care (Additional Payments) (Scotland) Regulations 2002, coupled with the National Assistance Act 1948 as applied in Scotland by the Social Work (Scotland) Act 1968, provide that when top up arrangements are in place under the Regulations, local authorities are under a duty to contract for the full costs of the accommodation package that meets the resident's assessed needs, although not optional extras which a resident might choose to purchase (for example, items such as satellite television or a personal daily newspaper which are not part of a resident's assessed care needs). However, it appears that in practice, local authorities do not always contract in this way and the Executive recognises that there is scope to clarify the guidance on this issue. We will work with COSLA and ADSW and through SWIA to consider the most effective ways to ensure that the legislation is fully implemented. This is likely to involve the abovementioned work to improve the quality and consistency of contracts and also the clarification of guidance or development of further guidance in this area.

17. On the question of payment of residents' contributions, the National Assistance Act 1948 as applied in Scotland by the Social Work (Scotland) Act 1968 provides that if all parties agree, instead of paying a contribution to the local authority, the resident/third party may instead pay it direct to the care home, with the authority paying its net contribution separately. The OFT recommendation would entail primary legislation for Scotland to remove authorities' ability to offer residents the option of making payments to the care home provider instead of the local authority. Given that the existing legislation provides net payments only as a choice to service users and third parties paying top-ups, we do not accept that it is appropriate to amend the primary legislation as suggested.

18. However, we are concerned that some authorities may be imposing net payments on residents, rather than explaining the choices open to them. We will review our guidance on this point and clarify it where necessary and will work with COSLA and ADSW and through SWIA to consider how best to ensure that practice reflects the legal position. We would expect that the improved access to information through the proposed central information service would help residents and their relatives understand more clearly the options available to them.

Complaints procedures

OFT Recommendation: We recommend that care homes regulators should produce an easy-to-understand document that provides practical information to all older people living in care homes and their representatives about the redress avenues open to them. This should include information about when and how they can complain to the care home, the authority, the regulator, the Local Government Ombudsman and the Parliamentary Ombudsman, or seek judicial review. Regulators should provide care homes with this information and monitor that homes include it as an annexe to the older person's contract or statement of terms and signpost it in suitable places in the care home. Department of Health and the devolved administrations should amend the relevant regulations to include this requirement.

19. The Care Commission has already a published a short summary version of its complaints procedure. This includes information about other avenues of redress including the Scottish Public Service Ombudsman.

20. The National Care Standards already include a requirement that residents should be aware of how to raise a concern with the home about the service and the procedure for making formal complaints directly to the Care Commission. In the light of this recommendation, we will consult upon the most appropriate way to strengthen the requirement for care homes to provide this information to residents.

21. It is also worth noting that the social work complaints procedures set out in guidance by the Executive are in the process of being revised and that the Executive's 'Thinking about moving into a care home' booklet also clearly explains residents' rights to complain.

OFT Recommendation: We recommend that the Department of Health and the devolved administrations should run pilot projects to measure the benefits to older people, care homes and Authorities of advocacy services being provided to older people entering or living in care homes as well as the costs of providing such services.

22. We understand that this recommendation is intended to increase the evidence base for the effectiveness of advocacy services for older people needing care home services. We are working with COSLA to map the extent of advocacy support for care home residents funded by local authorities, with a view to commissioning independent research to assess its value.

23. We will also work with the Department of Health, Welsh Assembly Government and the Department of Health, Social Services and Public Safety for Northern Ireland to clarify the existing sources of evidence on the benefits of advocacy services.

Scottish Executive Health Department

August 2005