The Scottish Government

PAR
REF

CONCLUSIONS AND RECOMMENDATIONS

COMMENTS

1

A. Free Personal Care

The Committee believes that the policy of free personal care for the elderly introduced by the Community Care and Health Act has been a success, and has been widely welcomed. It has:

1) Provided greater security and dignity to many elderly people

2) Allowed them to be cared for more readily at home

3) Assisted their carers

4) Reduced delayed discharges, thus freeing up NHS resources

5) Largely ended disputes between local authorities and health boards over the care of elderly people

6) Led to fewer complaints being reported to the Ombudsman about care of the elderly in Scotland than in England and Wales

7) Prompted consideration to be given to the development of elderly care policy in England and Wales

8) In the main, been introduced swiftly and comprehensively

The Executive welcomes the Committee's endorsement of the free personal and nursing care policy.

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Recommendation: The Committee proposes that the policy of providing free personal care for those over 65 continues to be pursued and developed.

We accept the Committee's recommendation. A major policy evaluation is underway which examines in detail the implementation and operation of free personal and nursing care. This work will highlight areas that require further development.

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Problems with Implementation

Conclusion: The Committee has heard evidence that would suggest that there have however been some major problems with the implementation of free personal care for the elderly. These could undermine the policy if not addressed. The problems include:

1) Questions about the funding formula put in place by the Scottish Executive

2) The operation of 'waiting lists; for free personal care by half of all local authorities

3) A failure by the Scottish Executive to enforce clear guidance on key aspects of eligibility, such as the preparation of meals

4) The level of free personal care funding, which is not increasing in line with inflation

5) A lack of clarity regarding the date from which payments are required to be made, which could create a financial incentive for local authorities to delay assessments

6) Continuing confusion over what is covered by the policy.

We note the Committee's conclusions. We agree that aspects of the policy may need to be communicated or delivered more effectively. We reserve judgment on what may need to be done by central or local government until our current research concludes. We will ensure that the issues raised by the Committee feature in our subsequent policy evaluation work.

6

Recommendation: The Committee supports the principle that everyone who has a right to free personal care under the legislation and is assessed as requiring it should have it provided without undue delay.

We accept the Committee's recommendation.

7

In order to address the implementation problems that have arisen a number of initiatives need to be undertaken.

7.1

The Scottish Executive should undertake a thorough review (based on the experience of the last 3 years) of the resources required by local authorities, collectively and individually, to adequately finance free personal care. This may require an increase in funding, or more equitable distribution amongst local authorities.

We accept the Committee's recommendation. At present, the allocation of money for personal care at home is provided on the conventional basis which takes into account the population of older people in each local authority area; and money for personal care in care homes is allocated separately on the basis of the number of people in care homes paying their own fees. However, the Executive is currently working with COSLA and the Three Year Settlement Group to agree a new statistical formula for the distribution between local authorities of funding provision for free personal and nursing care in care homes in time for the 2008-11 settlement.

The current policy evaluation includes a review of the cost of the implementation of free personal care. The outcome of this work, along with the findings of the evaluation, will help to ensure that future cost projections for the policy are based on accurate information, and that financial allocations to councils are distributed effectively.

7.2

Loopholes that permit the use of mechanisms to effectively 'ration' free personal care should be closed, if necessary by changes to the legislation

We note the Committee's recommendation. The policy evaluation will provide us with detailed information on implementation and operational issues that require to be addressed.

7.3

The Scottish Executive should enforce the guidance on those aspects of eligibility which local authorities claim remain ambiguous. It should ensure that services such as assistance with meal preparation, where they are part of assessed need, are eligible for free personal care

We accept the Committee's recommendation and can advise that steps have already been taken to address this issue. A letter issued to all local authorities on 25 May offering guiding principles that local authorities should apply when considering whether or not to charge for services. The policy evaluation will provide further information on implementation issues that require to be addressed and if required further guidance will issue in due course.

7.4

The Scottish Executive should adopt a mechanism for determining the long-term financing of free personal care, i.e. whether to increase it in line with the rate of inflation or some other indicator, as decided by the Scottish Executive.

We note the Committee's recommendation. Work is currently underway to establish the cost of providing personal and nursing care services to people in care homes. This will enable us to determine whether the current payment levels accurately reflect these costs.

7.5

The Scottish Executive should remove the financial incentive for local authorities to delay assessment by either: allowing claims for free personal care to be backdated from the point of eligibility rather than assessment: or introducing a mandatory deadline for assessments, e.g. within two weeks of application.

We note the Committee's recommendation. The policy evaluation will look in detail at the issue of waiting lists for personal care services.

8

Sustainability and Extension

The Committee believes that the policy of free personal care will only truly be effective and equitable if it is sustainable in the longer-term.

We note the Committee's comments, and are working to ensure the long term sustainability of free personal care.

9

The Committee recommends that the Scottish Executive carefully model the cost of free personal care in the medium-term to ensure its sustainability. In this exercise it should revalidate current costs based on demand.

We accept the Committee's recommendation and can advise that this work is currently underway.

10

The Committee believes there is a logical and ethical case for extending free personal care to those who require care who are under 65, but it recognises that this is financially difficult to achieve.

We note the Committee's comments.

11

The Committee recommends that the Scottish Executive actively considers the extension of free personal care, in keeping with the commitments made at the time that the Community Care and Health Act was passed.

We note the Committee's recommendation. A major policy evaluation is currently underway and is expected to produce recommendations for consideration. This recommendation will be considered at the same time.

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B. The Regulation of Care

The Committee believes that the Regulation of Care Act has achieved its primary purpose in creating, through the Care Commission, a comprehensive and independent regulatory regime which has provided increased protection for the elderly and other groups receiving care services.

The Executive welcomes the Committee's view that the creation of the Commission has achieved what was intended.

13

The Committee recommends that the Scottish Executive should continue to develop the Care Commission as the primary agency for the regulation of care services for the elderly.

We agree that the Care Commission should continue to be the primary agency for the regulation of care services for the elderly. We also intend to maintain the Commission's role in relation to care services for many other categories of service users. This is subject to the findings of the Independent Review of regulation, audit, inspection and complaints handling announced by the Minister for Finance and Public Service Reform on 7 June 2006.

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Problems with Implementation

The committee has discovered that a number of problems have emerged in the Care Commission's relationship with other agencies, particularly the increased regulation faced by some providers and services. There are also questions regarding the Commission's funding basis and its handling of complaints.

15

The problems include:

We note the issues which the Committee has identified. Our response is set out against the specific recommendations flowing from these issues.

15.1

Duplication and overlap between the activities of the Care Commission and local authorities, particularly in the field of housing support services.

15.2

Poor co-operation between the Care Commission and local authorities, for instance in sharing information - currently only 8 of 32 local authorities have an agreement with the Commission.

15.3

Unnecessarily burdensome regulation in some areas, for instance in the need for multiple registrations for single services.

15.4

The inflexibility of some systems which do not allow innovative services to be easily developed.

15.5

The requirement from the Scottish Executive for the Care Commission to be self-financing in elderly care services (but not child care), which risks distorting its activity.

15.6

Some concerns about the process for registering and investigating complaints against care providers.

16

The Committee recommends that the following action will be taken to address the difficulties that have emerged:

17

The Scottish Executive should:

Make it mandatory for local authorities and the Commission to have agreements over the inspection and monitoring of care services.

We agree that the Care Commission and local authorities should develop agreements setting out their respective roles and responsibilities in relation to care services, in particular with regard to monitoring the quality of service delivery. We do not agree , however, that it is necessary for such agreements to be mandatory.

The Care Commission and local authorities have an interest in monitoring the quality of care services for different reasons, both of which are enshrined in primary legislation. The Commission and local authorities have worked together since the Commission began operating to minimise the amount of duplication, in particular through Memorandums of Understanding (MOUs).

The original framework MOU with local authorities is currently being reviewed through COSLA to take account of the changes in the care environment since the Commission was formed in 2002. To date MOUs have been agreed and signed with 9 local authorities. The Care Commission has a target in its business plan for 2006-07 to agree and sign the remainder.

The Independent Review of regulation, audit, inspection and complaints handling by public services in Scotland will look at, amongst other things, the issues of overlap, duplication and the resource implications of the existing system of external scrutiny (including the Care Commission and local government). The Review is expected to report back to Ministers early next summer. We will consider what, if any, changes need to be made in light of its findings.

17.2

Place a duty on local authorities and the Care Commission to share information collected from care services.

We agree that, where a common purpose or common statutory duty exists, the Care Commission and local authorities should share information (taking account of the constraints of data protection legislation) about care services obtained during the course of their work, particularly with regard to protecting vulnerable people. We do not however agree that this is best achieved through separate legislation.

A number of provisions either exist now or will exist soon to facilitate the sharing of information between the Care Commission and other relevant organisations including local authorities. These include:-

· provision under the Joint Inspection of Children's Services and Inspection of Social Work Services (Scotland) Act 2006 for organisations involved in the inspection of children's services to share information for that purpose.

· provision will be made in the Protection of Vulnerable Groups (Scotland) Bill for public bodies (including the Care Commission) to disclose relevant information to Disclosure Scotland as part of the vetting and barring scheme.

· provision being made in the Adult Support and Protection (Scotland) Bill for local authorities and the Care Commission to co-operate and share information in relation to the abuse of adults.

Comments on the previous recommendation are also relevant here. In particular, the Independent Review of regulation, audit, inspection and complaints handling will look at the wider implications of information sharing. We will consider what, if any, changes need to be made in the light of its findings.

17.3

For the sake of clarity allocate responsibility for regulating housing support services to either local authorities or the Care Commission.

We agree that the respective roles of the Care Commission and local authorities in respect of housing support services need to be clear. We do not agree, however, that responsibility should rest solely with either one or the other.

The Care Commission and local authorities have an interest in housing support (and many other care) services for different purposes. Our comments in respect of sharing information and working together to reduce duplication and overlap of inspection in recommendations 17.1 and 17.2 are also relevant here.

A working group has been meeting since January 2005 following the recommendations of a report "Registered Social Landlords: Information Mapping" commissioned by Communities Scotland. The main purpose of the group was to reduce the administrative burden on organisations delivering housing support services.

There were a number of areas where duplication was perceived to occur. For each of the areas, support providers were required to produce extensive amounts of information to each of the "regulatory bodies".

Progress made by the group so far includes:

· Supporting People service reviews will be completed by March 2007. Local authorities will not be required to undertake further reviews in subsequent years. However local authorities may still wish to inspect services as required by their "duty of care";

· In addition to its MOUs with local authorities the Commission has an MOU with Communities Scotland covering information sharing and passporting of information;

· The Executive is currently considering future minimum frequency of inspection of housing support services;

· Communities Scotland is currently reviewing its regulatory framework with a view to ensuring that the regulatory burden is proportional. Its consultation (Risk and Proportionality) closed on 6 June 2006. This will inform future policy;

It is important to note that the areas of local authority concern are around areas not within the Care Commission's regulatory responsibilities, eg strategic fit, demand, viability and cost of the service. Local authorities will continue to require information to enable them to make strategic decisions about the services they fund. The Scottish Executive and Audit Scotland will continue to require returns to confirm that the budget is meeting its objectives and is being efficiently managed within the instructions given to local authorities.

17.4

Remove the requirement for Care Commission services for elderly care to be self-financing.

We do not accept this recommendation. We remain committed to the policy - set out in the Financial Memorandum to the Regulation of Care Bill - that the Care Commission is ultimately funded through regulatory fees from all of the care services it regulates, with explicit subsidies where policy requires that. This is a policy which applies to other regulatory bodies such as the Scottish Environment Protection Agency and the Scottish Social Services Council. It is also the policy in England that the Commission for Social Care Inspection is expected to ultimately become self financing .

In respect of the Care Commission, self-funding through fees (except where explicit and transparent subsidies exist for policy purposes) will ensure that the costs of regulation are transparent and that the Care Commission is accountable for the services it provides to those who receive them. Lord Sutherland in his evidence to the Committee said that this was "the natural way to go".

The policy has already been implemented for care homes, where from 2006-07 the income from fees will meet the cost of regulating the sector. The cost of regulating the early years sector is supported by a specific Executive subsidy (because of concerns that fees at full cost recovery levels would affect the objective of further expansion of the childcare market, which is linked to employment objectives). Combined, these services represent around 67% of the Commission's costs and 80% of the total regulated services. The intention is that the policy will be implemented in due course for all other services.

Relevant here is the power that Ministers now have to reduce the minimum frequency of inspections of care services by the Commission. We are currently considering a possible public consultation on proposals to reduce the minimum frequency of inspection of certain services. Any eventual proposal would need the approval of Parliament. Any reduction agreed by Parliament would offer in principle the opportunity to reduce regulatory costs (and ultimately fee levels) and/or target the available regulatory resources more effectively.

18.1

The Care Commission should:

Streamline its registration systems so that the level of multiple registrations for single services is reduced.

For our part, we accept this recommendation. We will consider with the Care Commission what, if any, changes are required to the Act to reduce the need for multiple registrations.

18.2

Revise the way in which it handles new services so as not to hinder the development of innovations which could improve elderly care.

The Care Commission registers care services as defined under Section 2 of the Regulation of Care (Scotland) Act 2001. If a service does not fall within the definitions of the Act then it does not need to - indeed, cannot - be registered with the Commission. Any changes to the definitions of care services in the Act would require primary legislation. A new type of service can be added by Order under Section 3 of the Act. We will consider with the Care Commission whether such gaps exist and consider whether changes to the legislation are needed.

The Changing Lives report, produced in response to a comprehensive review of social work services, has requested that Local Authorities implement service redesign in order to ensure that services become fit for the 21st Century. Such service redesign may include services which do not fall under existing legislation. The Executive will monitor this situation and consider changes in legislation accordingly.

18.3

Review the way it regulates smaller voluntary providers, so as avoid the potential reduction in the provision of care services in more remote areas.

It is important that anyone using a care service is able to receive the same standards of care, whoever the provider, wherever the location. The Act, its associated regulations and the appropriate National Care Standards apply equally to public and independent sector care service providers. The Care Commission recently conducted a review of its registration and inspection process and is in the process of reviewing its methodology. This is to ensure that regulation is risk based, proportionate and does not differentiate between sectors providing the service.

18.4

Publicise more widely the outcome of inquiries into complaints that have been upheld, for instance to other residents of care homes.

The Care Commission's revised complaints procedure was approved by Ministers in 2004 following a public consultation. Responding to complaints is a priority for the Care Commission and key to the Executive's aim of improving the quality of care services.

The Independent Review of regulation, audit, inspection and complaints handling mentioned above will look at how the learning points derived from complaint investigations lead to improvement generally as well as considering how people access a public service complaints system. We will await its finding before taking any further action in this regard.

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C. Direct Payments

Conclusions

The Committee welcomes the increase in the take-up of direct payments following the passing of the Community Care and Health Act in 2002. This has seen the numbers in receipt of payments increase from 207 in 2001 to 1,438 in 2005 and the value of payments increase from £2.1 to £13.7 million. On this basis the Act can be judged to have been a success.

The Executive welcomes the Committee's judgement that the 2002 Act has been a success in respect of Direct Payments.

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However, these increases are from a low base and direct payments in Scotland are still running at half the level of England and Wales. There is also a wide variation in take-up across Scottish local authority areas. There is significant scope for those local authorities that still exhibit low take-up rates to engage at the level of those with higher take-up rates.

We note the Committee's comments.

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The Committee supports the concept of direct payments as a means of increasing the autonomy of those who receive them as well as enabling care packages to be tailored more closely to their needs. Whilst not a solution for everyone, they have the potential to improve the care available to many and the committee wishes to encourage the increase in their take-up.

We welcome the Committee's support of the concept of Direct Payments (DPs) as a means of increasing the autonomy of those who receive them, as well as enabling care packages to be tailored more closely to their needs. The Committee's recommendations support and complement the strategies we are currently pursuing to increase the take-up of DPs, in particular the issuing of updated guidance which can now take advantage of the Committee's research.

In addition to the development of DPs, we are also looking at models in which budgets are more individualised to service users needs, through the implementation of Changing Lives.

The individualisation of budgets differs from DPs in that it does not require the service user to be responsible for the direct administration of funds or employment of staff, which can be off-putting to some service users and their carers. This approach has been piloted in England through the 'In Control' model and its applicability to the Scottish context is being considered as part of Changing Lives implementation.

22

The Committee acknowledges that the choice of direct payments brings with it risks and responsibilities for the individual, and that these must be carefully weighed in advance by those concerned. In this, a balance may need to be struck between flexibility and standards of service.

The increasing take-up of direct payments does represent a challenge to local authorities and traditional methods of care provision. It may operate as a lever to improve these. The Committee welcomes this, and believes that it should not represent a threat to public sector provision, provided that the public sector meets people's needs.

We welcome the Committee's comment on the challenge faced by Local Authorities with respect to the potential change DPs may make to traditional service provision. This is in keeping with the findings of the Changing Lives report, which promotes the concept of 'personalisation' putting service users at the centre of service development, and will be part of the service redesign programme attached to Changing Lives implementation.

24

It is important for local authorities to meet their minimum statutory duties to protect the safety of the individual and to ensure that no fraud takes place, but beyond this the Committee welcomes a 'light touch' approach to monitoring. It does not support too prescriptive an approach by local authorities, which runs counter to the aim of direct payments in giving individuals autonomy over their care arrangements.

It is not clear how the Committee's support for a 'lighter touch' with monitoring individuals' care packages can be made a reality given the clear obligations on local authorities to satisfy themselves on safety and financial probity grounds, and given the complexities of employment law as it applies to employment of personal assistants by users. Nonetheless, we will continue to work with our established working groups to consider this issue within their respective remits to recommend solutions to remove barriers to uptake of DPs.

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Recommendations

The Committee wishes to see more pro-active promotion of the availability of direct payments by the Scottish Executive and local authorities. The aim should be that all those who are eligible should be fully aware of direct payments as an option and be able to access them.

We accept the Committee's recommendation. We are working in partnership with a range of organisations to promote improved awareness and take-up of DPs across Scotland. We provide financial support to the Scottish Personal Assistant Employers Network(SPAEN) to provide training and support to personal assistant employers. We have allocated new funding to the Consortium of Direct Payment Support Organisations to assist the ongoing development of local support networks, to Contact a Family Scotland to extend the existing national information service for families with disabled children, and to the Lothian Centre for Integrated Living to improve training and support to local DP networks.

26

The Committee recommends that the Scottish Executive commits itself to continuing to encourage the take-up of direct payments, particularly in those areas which appear to have lagged behind.

We accept the Committee's recommendations. In addition to the partnership work mentioned above, we are presently considering what opportunities may be available to monitor local authorities' performance, particularly those still exhibiting low take-up rates. The JPIAF (Joint Performance Information and Assessment Framework) is one potential area which may offer scope for improved monitoring of activity.

27

The research that the Committee has sponsored has identified a number of 'success factors' in promoting the take-up of direct payments within local authorities. The Committee recommends that the Scottish Executive restate:

(i) its commitment to direct payments,

(ii) its intentions in pursuing its policy, and

(iii) re-issues guidance which takes advantage of the Committee's research.

We accept the Committee's recommendations. While good progress has been achieved, we acknowledge that continuing effort is required to deliver more responsive, personalised care packages. Local authorities are under a clear duty to offer DPs as an option in how community care services are delivered, and we will continue to monitor how they abide by their statutory duty. Improved choice and flexibility in care delivery is a firm policy commitment by the Executive, and our ongoing activity is intended to ensure DPs form an important aspect of a modern, person-centred care system.

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The Committee recommends that the Executive guidance stresses:

1) the importance of working with user-led support services - to allow individuals to articulate their needs and manage their care packages

2) the need for a clear commitment at senior level within a local authority as a way of improving take-up

3) the need to ensure that staff receive proper training and are fully informed of their role vis a vis payments

4) the value of having a designated post to oversee direct payments and accumulate expertise

5) the importance of mainstreaming direct payments funding

6) the scope to publicise the availability of direct payments to potential beneficiaries

7) that direct payments may be suitable for those with complex needs, as well as those with more straight-forward care needs.

We accept the Committee's recommendations. Our forthcoming guidance will restate the importance of working with and supporting user-led support services, and will emphasise the importance of securing commitment at senior levels within local authorities to ensure that DPs are integrated into the range of care solutions which are available locally. In providing additional GAE resources for DPs from 2006 onwards, the Scottish Executive wrote to local authorities outlining their expectation that local authorities fund local support, care managers' and users' training, and a designated DP lead officer post in order to increase DP uptake within all eligible groups.