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5. LEGISLATIVE POSITION - POWERS, RIGHTS & RESPONSIBILITIES
37. The powers to implement the Royal Commission's model for paying for long-term care were taken in the Community Care & Health (Scotland) Act which was passed in March 2002, enabling Scottish Ministers to set out in regulations the detailed provisions concerning the delivery of the policy.
38. The legislation did not, of itself, change the nature of care services for older people, which continue to be provided and commissioned under previous legislation. Rather, its intention was to address the way in which certain of these services were charged for. Effectively, since 1 July 2002 Scottish local authorities have been obliged to:
- Provide personal care services such as help with washing, dressing and getting in and out of bed free of charge to those at home (the NHS remains responsible for providing nursing care to people who live at home); and
- Make payments to care home providers on behalf of self-funding clients in care homes who are also entitled to have the personal care and nursing care elements of their care package free of charge. Self-funders remain liable for the accommodation and other living cost elements of their care costs.
It is important to bear in mind that the legislation has not affected the position of clients who cannot afford to pay for their own care. Local authorities continue to wholly fund their care needs.
39. In the case of residential care, funding is on the basis of flat rate payments for personal and nursing care for self-funders aged 65 and over, set by Regulation by the Scottish Government. On 1 April 2008, payments to eligible residents increased for the first time since the policy was introduced. 5
Operation of the Legislation
40. Both the Hexagon Evaluation Report of February 2007 and the 2007 Local Authority Peer Review identified various changes in the provision of local authority care services since the implementation of FPNC in 2002, including:
- A slight overall decline in the number of older people in care homes - but within this, a decline in the number of wholly local authority funded residents and an increase in the number of "self-funding" residents receiving FPC;
- An increasing number of clients receiving intensive care packages in their own homes; and
- A significant shift away from domestic care services towards personal care services at home, with some local authorities now no longer providing non-personal care services other than as part of a package of personal care.
41. These changes have been reinforced in other evidence we have heard during the course of our review and in the recent Auditor General's Report. They are also evident from examination of Scottish Government statistical releases.
42. Some of these trends pre-date FPNC and reflect a variety of socio-economic factors, including increasing capital assets amongst some older people, national and local policies for maintaining more people in their own homes and addressing delayed discharges from hospital; local decisions about the re-structuring of services; changes in client demands in respect of 'free' personal care services; previously unmet demand (acknowledged by the Care Development Group) and possible changes in the nature of support provided by informal carers.
43. These developments are important in understanding how local authorities have responded in managing demand for FPNC, including through waiting times and eligibility criteria, and the changing wider expectations of what the policy will deliver.
44. The inconsistent application of waiting lists, eligibility criteria and charges for food preparation are areas which the Scottish Government/ COSLA Joint Working Groups, operating in parallel to our Review have been seeking to resolve. However, they are areas on which many of the submissions we received focussed and which clearly run to the sustainability of the policy. We have had regard to the implementation or legal interpretation issues in forming our recommendations and these are examined in Part 2 of our report below.
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