INDEPENDENT FUNDING REVIEW OF FREE PERSONAL AND NURSING CARE: MEETING AT 10.00m ON FRIDAY 23 NOVEMBER 2007, ST ANDREW'S HOUSE: NOTE OF ME ETING
Present: Lord Sutherland (Chairman)
Anne Jarvie
Mary Marshall
Jim Dickie
Professor David Bell
Rhona Dubery (Secretary)
In Attendance: Neil Rennick, Scottish Government: Community Care Division
Shaun Eales, Scottish Government: Community Care Division
Carolyn Smith, Audit Scotland: Portfolio Manager ( for item 6 only)
Nick Hex, Audit Scotland: Project Manager ( for item 6 only)
Alice Brown, Scottish Public Service Ombudsman - SPSO ( for item 7 only)
Kerry Barker, SPSO Complaints Investigator ( for item 7 only)
Apologies
1. Rory Mair was unable to attend.
Introductory Remarks
2. Lord Sutherland welcomed members to the fourth meeting of the Review Group and noted that Carolyn Smith and Nick Hex from Audit Scotland would be joining the Group for item 6 of the morning's agenda and Professor Alice Brown, the Scottish Public Service Ombudsman (SPSO) and Kerry Barker, one of the SPSO's Complaints Investigators would be joining them for item 7. He also noted the weight of business and the need for the Group to spend the bulk of its time in discussion of items 6 and 7. With that in mind he invited members to let Rhona have follow-up written comments on any items where time for discussion had had to be kept tight. (Action: Review Group Members)
3. He noted that 2 papers had been tabled, the first was a request from a joint working group of SOLACE, CIPFA and ADSW, which he proposed to discuss under item 3 of the agenda and the second was Audit Scotland's draft key messages document from their FPNC Study, which Nick and Carolyn would talk to under item 6 of the agenda. He stressed that the key messages document was still a draft and had been shared with the Review Group in strict confidence. As such, he asked that members bear that in mind and share it no further.
Minutes of Meeting held on 22 October 2007
4. The minutes of the third meeting held on Monday, 22 October 2007 (IFR-FPNC (07)3rd Minutes) were approved subject to a small revision to the second sentence of paragraph 6.4.
Matters arising from the Minutes
5. David said he had been doing some more thinking about the Review Group's consideration of the impact of withdrawal of Attendance Allowance for older people receiving FPC in care homes and about how the benefit was presently targeted. The UK Government's forthcoming Green Paper on social care funding was likely to have implications for the benefit and he had some ideas he would like to explore further with the Group. The Review Group agreed that David should prepare a paper for its 14 December meeting setting out his thoughts on the matter. (Action: David Bell)
Written Evidence: Overview of Responses Received from Other Stakeholders (Paper IFR-FPNC(07)13)
6. Lord Sutherland noted that paper IFR-FPNC(07)13 presented an overview of the written responses received from stakeholders (other than local authorities), individuals and the Parliamentary Committees he had written to on 8 October. In addition to the responses summarised in the paper, Rhona had recently received a letter from Alex Linkston, Chief Executive of West Lothian Council and Treasurer of SOLACE, on behalf of a Working Group of representatives of 3 local government professional associations, SOLACE, CIPFA, ADSW, seeking to present oral evidence to the Review Group. The Working Group had a number of concerns about the funding and sustainability of the FPC policy, a sense of which was offered in the letter tabled, but the group wanted to present its views to the Review Group in more detail.
7. The Review Group noted the evidence offered as summarised in Paper IFR-FPNC(07)13 and agreed to consider it further in due course. It also agreed that representatives of the SOLACE, CIPFA, ADSW Working Group should be invited to offer oral evidence to the Review Group at an additional meeting to be arranged for the morning of 7 January 2008. (Action: Rhona)
General Up-dater Paper: Work in Progress & Key Developments (Paper IFR-FPNC (07)14)
8. Rhona said that the paper was largely for information, offering short up-dates on key issues or developments since the Group last met, including: some early information on the implications of the very recent budget announcements by the Finance Secretary in terms of the future distribution of FPNC resources and the increasing of the flat rate FPNC payments from 1 April 2008; and an up-date on the latest position with the SG/COSLA Working Groups and the recent meeting between the Minister for Public Health and the COSLA President. The Review Group noted the paper and that some questions remained on precise arrangements for the move to an outcome based funding model and that negotiations with individual local authorities would be on-going over the next few months. It agreed that further information should be provided on progress with the preparations for the move to outcome agreements as soon as it was available. (Action: Rhona and the FPNC Policy Team)
Free Personal & Nursing Care: Original Policy Intent (Paper IFR-FPNC (07)15)
9. Rhona said that the paper had been prepared following the discussion at the last meeting, when it was agreed that the papers setting out the Government's original policy intent and financial intentions for its FPNC policy should be re-examined and the position set out clearly, including details of the primary aim of FPC and of the under-pinning principles and definitions adopted. From the examination of papers held on file, Ministerial announcements and Statements to Parliament from the period March 1999 to July 2002, it was clear that the then Scottish Executive agreed and adopted the principles of fairness and equity upon which the recommendations of the Royal Commission on Long-term Care were based.
10. The policy aim was to remove the discrimination against older people who had chronic or degenerative illnesses and needed personal care and bring their care in line with medical and nursing care in the NHS where the principle of free care based on need was almost universally applied and accepted. Ministers agreed the person-centred, needs based approach, to the design and delivery of care recommended by the Chief Nursing Officer's Working Group, which best took account of individuals' different levels of dependency and mix of care needs. They also agreed the Royal Commission's distinction between the 3 elements of care, nursing care, personal care and living costs and supported the Commission's belief that individuals should continue to meet their own living costs in residential care.
11. The Group noted the paper and agreed that it presented an accurate picture of the development of the FPNC policy in the years up to implementation in July 2002. It also agreed that a further paper should be prepared to complete the picture, looking at developments post implementation and at the resources for FPC, including details of additional funding allocations to support the policy. (Action: Rhona and FPNC Policy Team)
Audit Scotland Study: Free Personal & Nursing Care: Analysis of Local Authority Data Returns and Other Fieldwork & Emerging Messages from Study
12. Lord Sutherland thanked Nick Hex for sharing the draft Audit Scotland key messages and emerging findings paper with the Review Group and assured him that the Group would be mindful of its restricted nature. Nick said that he and Carolyn would be presenting the draft paper to a sub-group of the Accounts Commission on Wednesday, 28 November and assuming there were no serious concerns, from there that paper and the fuller report would be considered at the next full meeting of the Accounts Commission on Wednesday, 12 December. After that the aim was for the report to be issued to the Scottish Government for clearance for factual accuracy and he expected that to be on or around 17 December, with around 3 working weeks thereafter allowed for clearance, i.e until about 18 January. Within that timeframe he anticipated publication of the final report on Thursday, 31 January. He said that the validation of data collected from the fieldwork exercise was also still being carried out but expected to be able to share the hard data with the Independent Review shortly.
13. Nick said that in terms of key messages, these essentially fell into 4 key areas:
¨ Concerns about the original implementation of the policy;
¨ Inconsistencies in legislation and supporting guidance;
¨ The impact of that on local authorities; and
¨ The impact of inadequate cost estimates for the policy.
He said that the fuller report would offer more context in terms of acknowledging the scale of the policy shift in question; the time limitations around development and introduction; and the fact that despite the widely publicised difficulties, many older people had benefited from the policy. Specific financial concerns included: questions over the total level of resources and local authorities' difficulties in managing demand within that and the resulting practice of "rationing"; wide variations across the country in the level and quality of service experienced by older people (reinforced in the focus groups with older people); the weaknesses in monitoring the financial impact of the policy; and deficiencies with the initial cost estimates for FPC (particularly in the area of personal care at home) and the difficulty in up-rating costs to produce more accurate figures and future projections. He said that Audit Scotland was still working on producing a figure on the total cost of FPNC.
14. On the key recommendations from the study, Nick cautioned that the set of key recommendations shown in the draft tabled was still to be discussed and agreed with the Accounts Commission and the Auditor General and that these could well change as a result. Essentially, the final recommendations would comprise short-term and longer-term recommendations for either the Scottish Government to address, or the Scottish Government and local authorities to address in partnership.
15. In discussion the following points were made:
(a) The Government's move to an outcome focused approach to local government funding, with previously separately identified and administered funding streams absorbed into the main local government finance settlement and reductions in the extent of monitoring and reporting required obviously had implications for some of the Audit Scotland recommendations, as the environment will have changed;
(b) In terms of the adequacy of funding and getting more clarity on the costs of FPC, the activity data collected by the Care Costs Group - a SG/COSLA group of officials established to analyse care costs for older people - might help;
(c) The Care Development Group had estimated total local authority spend on personal care at home prior to the introduction of the FPC policy at £65 million. That was now considered to have been a conservative estimate, which when up-rated in line with GAE for FPNC percentage increases over the period 2002-03 to 2007-08, now stood at £96 million, against total GAE provision in 2007-08 of £265 million. However, these figures were at a national level and it was difficult to get at the additional cost of providing FPNC as some authorities already provided this service free to some older people for personal care at home prior to introduction of the policy and some did not;
(d) Unmet need was another major consideration in terms of cost estimates. Demand for care at home had increased from around 25,000 clients at the start of the policy to the latest figures of around 45,000. That increase reflected the shift in the balance of care and the impact of other policy initiatives, including the introduction of the single shared assessment and the initiative to reduce levels of delayed discharge; the success of which had the effect of increasing the demand for social care in the community;
(e) In terms of what percentage of budgets was currently spent on older people and how that was shifting as a result of the demographics and healthy life expectancy, the imminent Audit Scotland Overview of the Performance of the NHS in Scotland might well provide up-to-date data;
(f) Although there were clearly inconsistencies in practice by local authorities, down to different interpretations of the legislation, the lack of any clarity as to the universality of the entitlement meant it was difficult to lay any criticism at their door. Rather, recommendations were framed around the SG and local authorities working together to address ambiguities;
(g) The figures in Exhibits 1 and 2 appended to the draft were quite raw and while they showed wide variations in the percentage of older people receiving personal care in each local authority area, they failed to take account of local variations, such as different deprivation, demographic and healthy life expectancy profiles and the variations in care packages, eligibility and charging policies by local authorities;
(h) More information was required on demographics and healthy life expectancy and future projections. It was thought that the most up-to-date work on healthy life expectancy was the 2006 research by Matt Sutton, University of Aberdeen, but even that was thought to rely on 2001 census data; and
(i) The idea of a national standard or set of minimum standards for provision of FPC might be reinforced by the move to an outcome based funding model.
16. The Review Group noted the draft key messages paper and up-date from Audit Scotland and agreed that it would be useful to see the detailed local authority data returns in response to the Audit Scotland request and the economic analysis of future costs of FPC and the impact of the policy on older people as soon as they became available. (Action: Rhona)
Scottish public service Ombudsman: Overview of Free personal & Nursing Care from an Ombudsman Perspective (Paper IFR-FPNC(07)16)
17. Lord Sutherland welcomed the SPSO, Professor Alice Brown and Kerry Barker, Complaints Investigator to the meeting and thanked them for the report provided in advance of the meeting, offering a general overview of the complaints cases which the Ombudsman typically received in relation to councils discharging their responsibilities in relation to FPNC services, funding and access. Professor Brown said she very much welcomed the Independent Review and hoped it would help address the injustices she seen in considering cases from individuals affected by some of the ambiguities with the policy or its implementation. She was glad of the opportunity to contribute to the Review Group's deliberations but thought that it should bear in mind that the nature of her work meant that she heard the complaints but did not necessarily hear of the positive impact of the policy. In the course of her presentation Professor Brown offered the following points:
(a) In terms of the caseload she seen, complaints came exclusively from "self-funders" and were related to issues around the provision of personal care services and funding for those services; and the majority related to personal care in a care home setting rather than at home. The volume of cases in Scotland was not large however, the persistence required to take a complaint to Ombudsman stage was relevant and the cases taken to that level were probably only the tip of the iceberg;
(b) FPNC was a complex policy and some of the ambiguity and problems stemmed from people's expectations and mis-understanding of what the policy covered, which could probably be traced back to the media hype at the time of implementation. The generally held misconception that "free" personal care meant entirely "free" rather than a responsibility for provision which was shared between the state and the individual continued to cause difficulties;
(c) The link to NHS continuing care was also relevant and the Ombudsman received many complaints about that, almost exclusively about eligibility criteria and assessment of eligibility for such care;
(d) While some argued that lack of resources was behind the problems with FPNC, the implementation of the policy by local authorities and the discretionary application of eligibility criteria, waiting lists, definitions (including that of "ordinary residence") and charges raised questions as to whether FPNC was a universal provision or not;
(e) The assessment of an individual's capital assets (to determine whether or not an individual is required to pay for all or some of the services provided to them by social services) was another common area of complaint and the volume of cases being seen now could be attributed to the number of "middle or lower-income" individuals who had exercised their right to buy their former council house. Different councils had different policies in respect of assessing capital assets (some discounting transfers of assets made more than 2 years ago and others going back 5 years) and most assumed a level of financial and legal sophistication amongst individuals which seemed unrealistic;
(f) Transparency of the policy and clarity in its operation would be key in securing it in the longer term and those basic aims and principles would need to be re-visited, along with the question of whether or not they applied universally ahead of advising on funding issues;
(g) The complainant in the Macphail Judicial Review had been looking for clarity when that begun and while the case had provided that on certain aspects, further clarity was required if the policy was to be implemented properly country-wide, even if that resulted in a tightening of the legislation. Local authorities had already spent considerable sums seeking legal clarity on issues like food preparation and aspects of the guidance or legislation where there was any ambiguity should be addressed;
(h) The importance of time to the FPC client group should be remembered, and clarity was needed on how long it was "reasonable" for an individual to wait for assessment and for their care package to be in place;
(i) For many individuals the reality was that their families, rather than they themselves, made the choices around their care packages or placements in a care home. Finance was fundamental but so too was clarity on the policy intent and universality and it was important that individuals and their families had a clear "route map" through the system. As things stood, the quality of information on offer varied widely across the country and some of it was very poor; and
(j) In terms of information on offer to inform choices, the link to NHS Continuing Care and the displacement from one budget to another was also relevant.
18. In discussion the following points were made:
(a) The Royal Commission on Long Term Care had always envisaged a review of the workings of the FPC policy and ultimately the legislation and the Cabinet Secretary had not ruled out tightening-up or amending the 2002 Act should that be considered necessary;
(b) The question of whether or not FPC was a universal entitlement was an important one and in the passage of time since implementation, human rights legislation had impacted and some might consider FPC a human right, rather than just an entitlement. In that regard it might be useful to speak to the newly appointed Chair of the Scottish Commission for Human Rights, Professor Alan Miller;
(c) The guidance, which was a common theme to complaints about NHS continuing care, (currently set out in MEL 1996(22)) was under review and revised guidance was expected to issue in the new year. The care home environment and dependency profile of individuals in care homes had changed considerably in the time since the MEL had issued and further clarification of the guidance was required. The Review Group may need to give consideration to the interface between FPNC policy and continuing care policy; and
(d) It would be useful to have some further details from the Ombudsman on the numbers and types of complaints dealt as per the headings set out in paragraphs 7 to 16 of her paper.
19. The Review Group thanked Professor Brown for taking the time to talk them through her overview of the issues and agreed that it would be useful to have more detailed information on volume and types of complaints received and to hear more about the idea of a "route map" as a means of helping individuals negotiate the system (as per paragraph 17 (i) above). (Action: Rhona)
Independent Funding Review of Free Personal & Nursing Care
Secretariat
10 December 2007