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The Way Forward for Care

Chapter 4 What the Commission will regulate

25. The basic statutory duty of the Commission will be to regulate a range of services. These will be as follows:

• home care;
• services to promote the social inclusion of adults;
• care homes for adults;
• housing support services;
• nurse agencies;
• early education and childcare;
• care homes for children;
• adoption services;
• fostering services;
• care and welfare in boarding schools and school hostels; and
• care and welfare in accommodation for offenders.

Home care

26. Home care is not regulated at present. This has increasingly been seen as an anomaly given the potential vulnerability of people being visited in their own homes and the increased emphasis on providing services at home rather than moving people into residential care. In our view it would not be feasible to regulate individual home care situations. We consider that protection of service users can be provided by inspection of the systems in place in home care agencies. Such inspection would include visiting a sample of service users in their homes to seek their views on the quality of care they are receiving. There was widespread support in the consultation exercise for the proposal that home care should be regulated on the basis of regulating the agency delivering it.

27. The consultation paper proposed that such regulation should be of personal home care (i.e. not domestic services). We have considered the scope of regulation very carefully and have concluded that this definition is too narrow. Domestic services can be part of wider packages of care provided or purchased by a local authority. Those receiving such packages should be able to assume that all the elements are regulated. Domestic services can play as important a part in maintaining people at home as personal care, and can be delivered to people who are just as vulnerable. We would not, however, wish to require all agencies providing domestic care to be regulated by the Commission. Many will provide services to individuals with community care needs only as an incidental part of their work, and individuals should have the right to purchase services from whoever they wish, provided they are clear about the status of the agency involved.

28. We therefore consider that all care services provided within the home of an individual should be regulated. This will include care for those who have been ill or are infirm, have a physical or learning disability, are, or have been, dependent on alcohol or drugs, and home care support for children and families, provided by local authorities or purchased by local authorities or the NHS. In addition agencies whose services do not relate to these categories should be required to register if they provide personal care. "Personal care" will not be defined in the legislation, beyond making it clear that it extends to advice and encouragement, i.e. it is intended to include psychological support such as reminding someone to carry out daily activities such as washing and eating, as well as direct physical assistance.

29. This would include the home care provided or purchased by the managers of any sheltered, very sheltered or supported housing, where personal care is involved. Such regulation would not include services such as "meals on wheels", shopping services, gardening or outside maintenance.

Services to promote the social inclusion of adults

30. The consultation paper indicated that the Commission would regulate day care where the adults are there because of their community care needs. This definition inadvertently perpetuates the traditional idea of day care services being offered to groups of recipients in a centre. Such services should be about enabling individuals to undertake the activities they want, at the time they wish, so that they can lead as full and socially included lives as possible.

31. The Commission will therefore regulate services provided for adults outwith their own homes that are intended to promote the person's social, educational or employment opportunities. This will include services that are designed for those who are, or have been, ill or infirm, have a physical or learning disability, or are or have been dependent on alcohol or drugs.

32. The legislation will require the following categories of such services to be regulated:

• services provided directly by a local authority;
• services purchased by a local authority or the NHS; and
• services which do not fall within either of the above categories but do involve personal care.

Care homes for adults

33. The Commission will regulate all care homes for adults, including those provided by local authorities, to be defined as services which provide accommodation together with nursing and/or personal care. NHS hospitals will be excluded from such regulation, as will sheltered and very sheltered housing and supported housing. We are still consulting on the regulation of non NHS hospitals.

34. The present legislative distinction between nursing homes and residential care homes will cease. There was widespread support for this in the consultation exercise, although some concerns were expressed about how this would work in practice.

35. Homes will be expected to deliver or arrange appropriate care to meet the changing needs of their residents. Regulation will be on the basis of providers having the appropriate staff, skills and facilities in place to provide care to the standards required for the planned resident numbers, taking into full account the level and type of their needs.

36. The regulation process would include agreement on the staffing required for a particular mix of residents in a home, and the circumstances in which the staff skill mix would have to change. The legislation will give providers flexibility over staffing mix, including being able to provide nursing care by means of permanent staff, agency staff or through the community nursing service, provided the needs of users are met. The legislation would permit local authorities to employ nurses to provide nursing care in their own care homes.

37. Staffing would be linked to a multi-disciplinary assessment of service users' needs, involving input from medical practitioners, nursing staff, social workers/care managers and other professionals, as appropriate. The Commission would assess whether appropriate procedures were in place to enable such assessments. If necessary, conditions on registration certificates could specify the categories of person which homes could accommodate. The intention is that the service would be flexible in line with the needs of the users, which will meet our objective of reducing the need for people to make potentially traumatic moves between homes.

38. Currently registered homes will continue to be registered as long as they continue to meet the needs of their residents. The Commission will want to be satisfied that providers have systems in place to ensure assessments of residents' needs are undertaken effectively.

39. The legislation will amend the Adults with Incapacity (Scotland) Act 2000 so that it is the Commission which is responsible for registering care homes to manage residents' funds. Under the 2000 Act, care homes will automatically be considered for registration for this purpose, unless they choose to opt out. Accommodation providers who do not have to register with the Commission (e.g. the managers of sheltered housing) can apply to be registered solely for the purposes of managing the funds of residents who lack the capacity to manage them themselves.

Housing support services

40. Under the Supporting People proposals housing support funding, currently mainly through housing benefit, will be transferred to local authorities who will also be charged with administering support services. Such support is provided to a wide range of vulnerable people including those beyond established community care client groups, such as victims of domestic abuse, and people who are or who have been homeless. These resources have paid for a range of housing related support services in the past, such as wardens in sheltered housing and arrangements to provide advice/support to users on relations with neighbours, all intended to assist users in living in their home. The resources for these services will be included in local authority Grant Aided Expenditure (GAE) from 2003 and will be ring-fenced. It is expected that enabling legislation for these arrangements will be contained in the forthcoming Housing Bill.

41. It is important to ensure the quality of the support services provided to the Supporting People client groups. We have considered options for ensuring quality:

• No central regulation. It would be possible to let the market hold sway and not seek to impose standards or monitor these services. By their nature, however, the users of these services can be very vulnerable and should be entitled to expect that services being provided for them, either directly by local authorities or purchased by them, are of an appropriate standard. Housing providers are also very keen to ensure that the new system is properly regulated, so that there is a level playing field: they wish to ensure that those providers who want to offer high quality support services are not squeezed out by the less scrupulous.
• Regulation by a body other than the Commission. In theory, regulation of housing support services could be undertaken by another body. Housing support services have not hitherto been regulated. There is no existing body to take this on, however, and the creation of a new body for the regulation of these services alone at the same time as we are setting up the Commission would not be an efficient use of resources. There is also some overlap between home care services and housing support services, although they have a different focus. We consider that there would be merit in housing support services being regulated by the Commission as well.

42. Once the Supporting People provisions are implemented, we intend that the agencies providing housing support services, including local authorities themselves, should be regulated by the Commission. The National Care Standards Committee will be producing standards for these services for consultation in due course. Regulation will also be considered in the Supporting People stakeholders group.

Nurse agencies

43. Nurse agencies provide nursing staff to the NHS and the private and voluntary sector. They may also be used by individuals requiring care services. They are regulated at present by health boards under the Nurses (Scotland) Act 1951. The consultation paper sought views on whether nurse agencies should be regulated by the Commission. There are various options:

• not regulating nurse agencies is clearly a possibility. This would, however, run counter to the overall policy objective of providing a regulatory framework which focuses on quality and customer protection;
• regulation could continue to be carried out by health boards. The bulk of health boards' present regulatory functions - for nursing homes - and therefore their regulatory expertise will, however, pass to the Commission. It would be inappropriate for health boards to continue to regulate nurse agencies alone;
• nurse agencies could be regulated under the Employment Act 1973. They have so far been exempt from such regulation. This route would, however, provide protection for the employees of nurse agencies but not for the users of the service.

44. We consider that there is a strong argument for the care services provided by nurse agencies to be regulated on the same basis as those provided by home care agencies, to ensure customer protection. The consultation paper responses were generally in favour of the regulation of nurse agencies by the Commission, and we intend to proceed on this basis.

45. Regulation of nurse agencies as employment agencies is a reserved matter. The Scotland Office and DTI will consult on whether nurse agencies should be so regulated in addition to regulation by the Commission.

Early education and childcare

46. The consultation paper on regulation of early education and childcare argued for consistent regulation of similar services, including local authority and private and voluntary sector provision. This was supported by respondents. The paper also looked at what activities should be subject to regulation. Responses supported extending regulation to provision for older children, although with many favouring lighter regulation for these services. Many argued for regulation of nannies. Many respondents also raised the issue of integration or co-ordination of inspection by the Commission and by Her Majesty's Inspectors of Schools (HMI).

47. The Scottish Executive set out conclusions following consultation in May 2000 in the paper Regulation of Early Education and Childcare: The Way Ahead. These are summarised here. It is intended that all services currently subject to regulation will remain subject to regulation. As for other services to be regulated by the Commission, local authorities' own provision will be subject to regulation. Regulation will be extended to services for children of under 15 (or under 17 for children with a disability)rather than under eight as at present. For services provided only for secondary school age children (as above- under 15 or under 17 if for children with disabilities) the focus will be on suitability of staff. For younger children the quality of care will be addressed too. As at present, there will be requirements in respect of inputs, eg staff numbers and qualifications, but much greater emphasis than at present will be placed on outputs. In other words, regulation will focus on the quality of experience offered to the child. This will be achieved by the Commission inspecting with reference to National Care Standards as discussed at paragraph 66.

48. Given the increasing coming together of care and education services it is proposed that the Commission will regulate all provision, whether defined as care or education, for children below compulsory school age in the private, voluntary and local authority sectors. HMI will continue to inspect centres funded to provide pre-school education every 5-7 years fitting with the cycle of primary school inspection. The Commission and HMI will use the same overall framework of care standards developed by the National Care Standards Committee. Good communication between the Commission and HMI will be ensured and the Commission will not be required to inspect in the year HMI does.

49. The care standards will provide a clearer set of requirements for providers and inspection that is not unduly onerous. In developing these standards, the National Care Standards Committee will use the performance indicators set out in The Child at the Centre (published in February of this year) as a starting point. These indicators, which will be used by HMI as part of their general inspection programme from the beginning of academic year 2000/01, are intended for all centres providing for 3-5 year olds and encompass ethos, support for children and families, and development and learning through play among other issues. The care standards, once developed, will be relevant to all providers, although different standards may be particularly pertinent to a particular age group or type of premises. The inspection process will distinguish between such different types of provision (but not different sectors) as set out more fully in Regulation of Early Education and Childcare: The Way Ahead.

50. Ministers have also concluded in light of consultations that the involvement of teachers in nursery schools and classes, which is currently prescribed (as a ratio) in subordinate legislation, should be de-regulated. And, pre-school centres in the private and voluntary sectors should be expected to have some input of teacher skills. Therefore, guidance applying to all pre-school centres, across all sectors, will encourage the inclusion of teacher skills within staff teams. This will give greater flexibility over the deployment of teacher resources throughout the pre-school sector. The Commission at its inception will be expected to take account of this guidance in its inspections.

51. As far as nannies are concerned, the paper set out a range of safeguards relating to employment of a nanny. Ministers believe these are more appropriate than regulation by the Commission.

Care homes for children

52. The Commission will regulate all care services for children which provide accommodation together with personal care and support and/or nursing care. This will include care and accommodation for children looked after by local authorities. There will be exemptions for NHS hospitals and for places where the child is cared for by a parent or relative. The registration and inspection of all residential establishments which provide secure accommodation for children will be carried out by the Commission but Scottish Ministers will retain statutory powers to approve the provision of secure accommodation. This will be based on review every 3 years by the Social Work Services Inspectorate (SWSI) and HMI and more frequently where necessary.

Adoption services

53. The Commission will register and inspect all adoption services provided by local authorities and voluntary agencies under the Adoption (Scotland) Act 1978, the Children (Scotland) Act 1995 and the Adoption (Intercountry Aspects) Act 1999 and associated legislation. The Commission will also assume these functions in respect of voluntary organisations currently requiring the approval of Scottish Ministers to operate as adoption societies under section 3 of the 1978 Act.

54. The Commission will examine recruitment, assessment and approval of adopters; the functioning of adoption panels; matching children with prospective adopters; and the monitoring, review and support for adopters and children placed for adoption both prior to and, as appropriate, post adoption. Appropriate care standards will be developed in relation to adoption.

Fostering services

55. Similarly, the Commission will register and inspect fostering services provided by local authorities, voluntary agencies acting on their behalf by agreement, and private fostering agencies under the Children (Scotland) Act 1995 and associated legislation.

56. Regulation by the Commission will include consideration of the arrangements for recruitment, assessment, approval and support of or for foster carers; the procedures of foster panels; matching of children to carers; and the support and monitoring of placements, including private foster placements. Care standards will be developed building on existing standards such as the UK National Standards for Foster Care.

Care and welfare in boarding schools and hostels

57. Our consultation paper invited views on whether care and welfare provisions for children in boarding schools and hostels should be regulated by the Commission. Responses were generally in favour of such regulation. The legislation will therefore provide for the Commission to determine how well the welfare of children in such boarding schools and hostels is safeguarded and promoted. We will explore with this sector how and when the provisions should be implemented. Respective roles of the Commission and HMI would require to be clarified to ensure efficient working together.

Care and welfare in accommodation for offenders

58. The Commission will regulate the care and welfare elements of accommodation services for offenders, which currently include specialist residential facilities, supported tenancies and supported landlady schemes. A national strategy for offender accommodation is currently being developed and is likely to lead to increased use of mainstream housing for offenders with appropriate levels of support and/or supervision based on assessed risk.

Private and voluntary healthcare

59. We have consulted separately on issues relating to private and voluntary healthcare. One option is regulation by the Commission. The results of this exercise will be issued in a separate policy paper in August 2000. Should this sector be included in the remit of the Commission then we will consider whether the name of the Commission adequately describes its role.

Legislative provisions

60. We intend that the following should be included in the legislation:

• Scottish Ministers will have the power to make regulations to extend the list of regulated services (for example as new issues such as contracting of prison social work emerge) and to exempt services from the requirement to register;
• there should be a statutory duty on any person who manages or operates a care service falling under one of the above categories to register with the Commission. Where the activities of an agency are carried on from two or more branches, the manager of each branch should have to register the service. A person who manages more than one service must apply for registration separately for each;
• there will also be a statutory duty on local authorities and NHS trusts not to use unregulated provision where there is a requirement for that service to be regulated;
• a person managing or operating a service which is required to be registered without such registration would be guilty of an offence;
• a person advertising a service as being registered when it is not would also be guilty of an offence; and
• certain exemptions from registration will not be maintained.

Priorities for initial regulation by the Commission

61. Our consultation paper sought views on the priorities for initial regulation by the Commission. It suggested that care homes and day care for adults would be regulated first, followed by day care for children and home care, with adoption, fostering and specialist accommodation for offenders completing the process.

62. The majority of respondents considered that responsibility for the regulation of all services regulated at present by local authorities and health boards should transfer to the Commission in one tranche. There was particular concern that leaving responsibility for regulating early education and childcare with local authorities for a period would be impractical.

63. Some consultees pressed for the Commission to regulate other services, particularly home care, from the start. We consider, however, that it would not be practicable for the Commission to operate across the full range of its remit from the very beginning.

64. We therefore propose that all types of care services currently regulated by local authorities and health boards should be regulated by the Commission from the start of its operational phase which is expected to be 1 April 2002. This would include services promoting the social inclusion of adults, care homes for adults, early education and child care, childminders, residential childcare and nurse agencies, all as described above. The remaining services to be regulated by the Commission will come on stream as soon as practicable thereafter. When home care agency regulation commences inspections will be able to be combined with those for nurse agencies where organisations operate both services.

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