Health and Sport Committee

Meeting date: Tuesday, June 5, 2018

Official Report 778KB pdf

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Subordinate Legislation

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Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No 2) Regulations 2018

We move on to consideration of instruments that are subject to affirmative procedure. The first instrument is the Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No 2) Regulations 2018.

We will hear from our colleagues from the Convention of Scottish Local Authorities in just a moment, and then from the Cabinet Secretary for Health and Sport and her advisers. Following a question session with the witnesses we will move directly to a debate on the instrument.

With us today from COSLA we have Councillor Peter Johnston, who is its health and social care spokesperson; John Wood, who is a chief officer for health and social care; and Morag Johnston, who is the director of financial and business services at Glasgow City Council.

I ask Peter Johnston to lay out COSLA’s views on the instrument, its approach to the principle and any particular issues to which COSLA wishes to draw the committee’s attention.

Thank you for inviting COSLA to give evidence today. As I hope is clear from our written submission, COSLA is happy to provide support for the extension of free personal care to under-65s, although we believe that it cannot be done successfully without the co-operation of local authorities.

In previous written submissions, COSLA has suggested that staged implementation might be worth consideration. This morning, I want to make it clear that COSLA absolutely accepts the desire of ministers to have full implementation by April 2019 and I stress that we commit to making that timetable a reality.

Before we take detailed questions, it is perhaps worth our while to reflect on the views of the COSLA health and social care board, which has agreed to uphold the principle of charging for some social care services on the basis that it is fair and that people who can afford to pay a charge or contribution towards the cost of care services that they receive should do so.

We believe that co-payment encourages ownership and empowers people to make choices with regard to the care that they receive. Furthermore, the ability to use income that is raised through charges to invest in social care services is key to providing local authorities with the flexibility to focus resources on local priorities and needs.

I understand that COSLA officials are working with civil servants and partner organisations to develop the detail of implementation. We have some areas of concern, which we hope can be addressed prior to implementation. First, the policy must be fully funded, with new money to service current service levels and the increased number of assessments that will be required, together with unmet need that will be identified as the policy begins to be implemented.

Secondly, the policy must not come at any detriment to councils’ decision to charge for non-personal care, in line with the COSLA charging policy. We strongly argue that councils’ current autonomy must be maintained. Finally, the implementation should be closely monitored with an agreement to reflect any increase in demand in future financial settlements.

COSLA gives its full support to the Scottish Government’s policy intent of removing the current discrimination and extending free personal care entitlement to adults under 65 who are assessed as needing personal care.

That was a whirlwind tour of the COSLA policy statements.

Good morning. Thank you for your submission, which provides helpful background information. It is about a year since I tried to introduce a member’s bill on the issue in Parliament. I am pleased to see that progress has been made and I hope that we will agree to the necessary statutory instrument today.

On costing, I am still not clear where the Government has found the figure of £10 million. From your work with local authorities on meeting the unmet need that will arise from the policy, how much do you think it will cost?

The figure of £10 million to £11 million has been mooted. That is based on removing the current charges that apply for under-65s and on nothing else. The figure does not take into consideration the potential increased demand that would flow from charges being removed. We are working with civil servants to bottom out what the costs would be. We anticipate that they would go beyond the £11 million figure.

We hope to get clarity on that over the next couple of months through the implementation advisory group. Initial estimates suggest that it will be at least three times the figure of £11 million. We need to do more detailed work to have confidence in any figure.

That is very helpful. Some of the work that I did on the bill suggested a costing of about £40 million to £60 million at that point. What work has already been undertaken by local authorities in scoping unmet need?

We have done work in conjunction with civil servants. It has been a collaborative exercise and I would not say that it was just us that did that scoping work. We have modelled it on the trends that emerged after free personal care for those aged 65 and over was introduced in 2002 and we have applied those trends to the current figures for under-65s. That does not necessarily flow as a direct comparison so there has been some modelling to temper the increase that would be predicted if we applied exactly the same trajectory. Over the next few months, we want to do some more detailed work on those figures to get better clarity.

In your submission, you raised some concerns about extra assessments and administrative costs. Are you still confident that we can put the policy in place for everyone in Scotland by April 2019? That is what the Government is looking for.

That is certainly what we are working towards.

11:15  

COSLA has worked with the Government on several similar policies. The principle of the policy being fully funded is core. However, at least in health and social care, we have always managed to work such things through and reach the desired outcome. We are confident that we can do likewise in this case.

Do I take it that the funding includes the funding that will be required for staff to make assessments of people who are not currently identified as being in need of personal care?

That is certainly what we will be pressing for. Councillor Johnston’s point about the additional burden flowing from the assessments needs to be taken into consideration.

Thank you for attending the committee and giving us your input. It has been very useful for the committee to get an understanding of your position as it has evolved—as such things often do. As committee members have no further questions, we will suspend briefly to allow for a change of witnesses.

11:15 Meeting suspended.  

11:18 On resuming—  

I am pleased to welcome the Cabinet Secretary for Health and Sport, who is accompanied by Mike Liddle from the Government’s adult social care policy team, and Ann Davies, who is a Government solicitor. The cabinet secretary will make a brief statement about the regulations.

Good morning, convener. Thank you for giving me the opportunity to speak briefly to the committee about the Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No 2) Regulations 2018, which will introduce provision of free personal care to adults under the age of 65 from 1 April 2019 by removing the age requirement that is set out in the current regulations.

The affirmative instrument that is before the committee reflects our continued commitment to removing the differentiation in treatment of people under the age of 65 with regard to the provision of free personal care. I am sure that the committee will want to join me in recognising Amanda Kopel’s tireless campaigning to bring about Frank’s law.

In Scotland, free personal care already benefits about 78,000 older people in their own homes and in care homes. It enables them to receive, free of charge, hands-on care including help with washing, dressing and shaving, and assistance with preparation of food, but it does not include wider social care elements, such as day care.

From 1 April 2019, personal care will be made available across Scotland, free of charge, to everyone who requires it. For people on the lowest incomes and with the smallest levels of assets, personal care is already provided free, and that will continue to be the case. We recognise that people with substantial packages of non-personal care will still pay towards those elements of their care packages, but they will continue to have access to the social care resources that they receive at the moment.

We are aware that a range of opinions exist on the charging policies of local authorities, but we must balance the best outcome with the appropriate timing for implementing the legislation. Therefore, we have asked for the regulations to be considered significantly ahead of the date on which they will come into force—1 April 2019—to enable local authorities to plan for necessary changes to their processes and systems for care and financial assessments.

In preparation for the extension, an implementation advisory group has been set up, which is making use of expertise from local authorities, health and social care partnerships, COSLA, care providers and service users, in order to ensure that implementation takes into account the impact of the change on local authority systems. Those areas will require to be reviewed by local authorities to ensure that changes to the systems are made in a manner that is sensitive to the needs of service users and their choices about their care and support, and in a manner that aids local authorities.

The implementation advisory group is also looking at models for monitoring and review of the policy that will help the Scottish Government and local authorities to budget for future costs of the extension of free personal care.

I am happy to take questions on the regulations.

Thank you very much, cabinet secretary. The reference that you made to the costs of implementation is important. Earlier, we heard from Councillor Peter Johnston of COSLA, who indicated how keen local authorities are to work with the Government on implementation according to the timetable that has been set out. Would you like to comment on the estimated costs of implementation which, in COSLA’s view, reflect existing need but not any unmet need that has yet to be identified?

As COSLA said, such matters are being discussed by the implementation advisory group, whose deliberations will be brought to a conclusion over the next few months. It is recognised that it will cost between £10 million and £11 million to provide free personal care to existing service users. Estimating the unmet need is more challenging, which is why we are working through the implementation advisory group to obtain the best estimate and thereby to ensure that, in the future, local authorities can be properly supported in implementing the policy. Those discussions will reach a conclusion well in advance of the implementation date.

Does the Government, in principle, fully support the principle of fully funded implementation that COSLA laid out?

Yes, but we need to have a discussion about what that means and what the costs are. We need to land that accurately, and the figure needs to be reviewed to make sure that it is accurate. Once we establish what the actual levels of unmet need are, we will make sure that the resources that have been provided are in line with that. We need to have proper monitoring of the policy as it is implemented.

Thank you very much.

I have a quick question on a subject that I asked about when we discussed the Government’s uplift to the cost of free personal care for the elderly during our scrutiny of the budget. I think that the figure is about 1.8 per cent in a year in which all public sector workers are to get a 3 per cent uplift. My concern is that we are not attaching to care work the value that we should be attaching to it and that, as a result, we are not incentivising people to enter the profession. What is your view on that?

I do not agree with that. The latest figure for the resources that we have put into social care more generally is about £550 million. On top of the uplift for the free personal and nursing care policy, additional resources have been put into delivering the living wage to about 40,000 social care workers. That spend has to be considered in the round. It is a significant investment in social care, but demand continues to increase.

Scotland is the only part of the UK to have implemented free personal care for older people, and will be the only part to implement it for people under 65. All in all, we have a system that, although it is not perfect, is much fairer. The next instalment of extending free personal care will make the system even fairer. As I said earlier, we need to make sure that we resource personal care properly as we take it forward. That is a discussion that we will continue to have.

I certainly welcome this step forward. The cabinet secretary will be aware that the Scotland against the care tax campaign group still has concerns. It is concerned that not all parts of a person’s support package will be covered by free personal care, and it would like there to be a personal care rebate, which would help to reduce the overall costs of their whole support package for people under 65. Is that something that the Government will consider in a review?

It is important to separate the elements. This is about extension of free personal and nursing care to people under 65 to bring it into line with the arrangements for people aged 65 and over.

I recognise that Scotland against the care tax wants a discussion about care charging more generally and has made a proposal about removing charges across the board. Obviously, that would carry a significant cost.

The discussion around charging policy and the cost of that is separate from the discussion that we are having today. We recognise the need to ensure that when free personal care is implemented for people under 65, there is not a rise in charges for non-personal care, for example. That is part of the discussions that are being had in the implementation advisory group. It is important that there is fairness, and that the system does not give with one hand and take away with the other.

As part of making charging fairer, we took the decision previously—at a cost of £11 million—to raise the threshold for charging. That applies to non-personal care as well. That has benefited people on lower incomes. There are also changes for veterans, through disregarding war pensions.

There are also changes to the armed forces compensation scheme.

The armed forces compensation scheme assists veterans with personal and non-personal care. We have taken additional steps. We recognise the issues that have been raised, but they are for a separate discussion.

The cabinet secretary will know of my personal interest in this issue, in that I wanted to introduce a bill on it. I am pleased that we have reached this position today, in less than a year since that bill was proposed. I hope that today is a good day not only for Parliament but for the people in Scotland who need this. Cross-party support for the proposal has been important.

On implementing the proposal, it is important that we have heard from COSLA, because it has suggested that we will need three times the amount of money that is currently proposed. It also highlighted concerns about the full costs of administration.

I say to the Government and the cabinet secretary that I hope that we are able to make sure that there is flexibility on the additional funding that will be needed. I hope that we will not see this being done on the cheap. It is important that the unmet need, which we are all now aware of, is met and is scoped as soon as possible.

I would like some clarity on the two points that COSLA made about the full assessments that will be needed and the additional administrative costs that councils will face.

As part of its work, the implementation advisory group, as well as looking at the estimates of unmet need, will of course look at the cost of implementation, including whether there is a requirement for additional staffing for assessment and administration.

At the end of that process, we will agree with COSLA the global resources that will be required to implement the policy fully and successfully from 1 April 2019. We will then propose a budget to Parliament. I hope that we get the same cross-party support for the budget that will actually deliver this policy. That will be important when we get to that stage.

11:30  

Do you have a timetable for when that figure will be announced?

Work is being done on it. We hope to conclude the discussions during the summer. It is important to get this right: if additional work is required, it is important that we have the best estimate. As COSLA said, progress is being made and we hope that we will have figures nailed down during the next few weeks, and certainly well before implementation of the policy on 1 April 2019. I am happy to furnish the committee with that information once it becomes available from the implementation advisory group.

That would be helpful, thank you.

My question is almost the same as Miles Briggs’s question. It is about on-going funding and how it affects local authorities. However, I want to go a wee bit further than that and seek some clarification. We have taken evidence on health and social care integration and the regulations will obviously have a knock-on effect on that. How will that be implemented in the funding that local authorities are asking for? Will health and social care integration have a part to play in the policy?

The success of implementation of the policy will be in health and social care integration. Many service users will receive a range of services that span health and social care, so it is important that the packages of support that people receive are knitted together well across health and social care. Integration has helped to get us away from the old debates about whether a bath is a medical bath or a social bath; what is important is the package of care that is required. Resources flow into the integration joint boards to deliver those services, and the same will be true of the resources that are associated with this policy.

It is as important for free personal and nursing care for people aged 65 and over as it will be for the under-65s that the delivery of services to people in their own homes is seen through the lens of integration.

My question was more about the budget, but you answered that.

As there are no further questions, we will move to the formal debate on the instrument. There will be no questions to the cabinet secretary and there will be no contributions from officials. I invite the cabinet secretary to begin the debate by moving the motion.

Motion moved,

That the Health and Sport Committee recommends that the Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 be approved.—[Shona Robison]

I invite any members who wish to, to contribute to the debate.

Having led a Green Party members’ business debate on social care in April 2017, when I called for social care to be free at the point of need, regardless of age or condition, and funded through progressive taxation, I welcome the amendment to the community care regulations. However, is important to put on the record that we could and should go further.

I welcome the cabinet secretary’s recognition of the issue that there will be some people whose social care charges will not end. Scotland against the care tax continues to call for an end to all social care charges. In its submission, it informs us that

“only this will remove the current discrimination against disabled people whereby they are charged for the essential support they need to enjoy the same human rights as anyone else.”

Providing free personal care to under-65s as it is done currently will still leave the majority of younger adults facing significant charges to receive the social care that they need for independent living. I welcome this morning’s progress, which is a step in the right direction, but we can and should go further.

I see that no other colleagues wish to contribute to the debate, so I ask the cabinet secretary to sum up.

I thank Alison Johnstone for her contribution. I recognise the wider issues, but it is important to note that Scotland has continued to provide support through the independent living fund, for example, which we will discuss in a moment, and that has not been the case elsewhere. The ILF programme was stopped in England, and it has just been stopped in Wales. The ILF is an important source of support, particularly for young disabled adults, because it enables them to live full and independent lives in their own homes. We should not see the issue in isolation: we provide other forms of support that are not provided elsewhere to help people to maintain their independence.

Motion agreed to,

That the Health and Sport Committee recommends that the Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 [draft] be approved.

I suspend the meeting for a change of witnesses.

11:36 Meeting suspended.  

11:37 On resuming—  

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Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2018 [Draft]

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ILF Scotland (Miscellaneous Listings) Order 2018 [Draft]

I welcome again the cabinet secretary. She is joined by Ann Davies, who is a Government solicitor. Before we move to questions on the two instruments, which are subject to affirmative procedure, I invite the cabinet secretary to make a brief opening statement.

The instruments are largely technical, but I will provide a bit of background and context on their purpose. As the committee will be aware, the independent living fund was a UK scheme that made care payments to severely disabled people. The scheme was closed to new applicants in April 2010 and ceased to operate on 30 June 2015.

The Scottish Government made a commitment to maintain ILF payments in Scotland and it established ILF Scotland from 1 July 2015. That fund makes payments to all persons in Scotland who remain eligible and who received funding from the ILF before its closure. Recipients use the funding for services that offer the flexibility that they might not otherwise have to live in their own home and to take up employment or education, and the funding helps to reduce social isolation.

An agreement has been reached for ILF Scotland to distribute packages of ILF support, on the Northern Ireland Executive’s behalf, to existing ILF recipients who live in Northern Ireland.

In addition to supporting existing ILF users, the Scottish ministers have committed a total of £5 million annually to extending the ILF’s reach in Scotland. In December 2017, the ILF Scotland transition fund opened to new users. The new fund supports young people aged 16 to 21 who are living with disabilities to be more independent during their transition from education and children’s services. Since opening access to the payments, 200 applications have been received, with a total liability of around £600,000.

When ILF Scotland was established in 2015, it was decided that it should be a company limited by guarantee in order to meet the very tight timeframe for delivery and to ensure that payments were protected. At that time, there was insufficient time to list ILF Scotland in various pieces of legislation as a public body.

In discussion with the Scottish Government legal directorate and officials of public bodies, we have identified a number of pieces of legislation in which we consider that ILF Scotland should be listed in order to ensure that it operates in line with other public bodies in Scotland.

The two instruments that are being considered today—the ILF Scotland (Miscellaneous Listings) Order 2018 and the Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2018—will achieve that, along with a third instrument that is not being considered today, the Ethical Standards in Public Life etc (Scotland) Act 2000 (ILF Scotland) Order 2018, which is subject to negative procedure. I will provide brief details of the two instruments that are being considered today.

The ILF Scotland (Miscellaneous Listings) Order 2018 lists ILF Scotland in a number of pieces of legislation. First, it will be listed in schedule 1 of the Freedom of Information (Scotland) Act 2002. Although ILF Scotland is already bound by the act, listing it makes it subject to the duties relating to climate change that are contained in part 4 of the Climate Change (Scotland) Act 2009.

ILF Scotland will be included in schedule 2 of the Public Appointments and Public Bodies etc (Scotland) Act 2003. The purpose of listing it is to regulate appointments that are made by the Scottish ministers to the ILF Scotland board by requiring that the Scottish ministers comply with the code of practice for ministerial appointments to public bodies in Scotland.

ILF Scotland will be listed in part 3 of schedule 19 of the Equality Act 2010 so that it is required to comply with the public sector equality duty.

ILF Scotland will also be listed in the schedule of the Public Records (Scotland) Act 2011, which will require it to manage its public records in accordance with a records management plan that has been agreed by the keeper of the records of Scotland.

Lastly, ILF Scotland will be in schedules 1, 3 and 4 of the Children and Young People (Scotland) Act 2014. Being listed in those schedules means that it will be subject to the duties of public authorities in relation to the United Nations Convention on the Rights of the Child, and it will become a listed authority in relation to children’s plans, and a corporate parent.

The purpose of the Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2018 is to add ILF Scotland to the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012. That will make ILF Scotland subject to various duties, including assessing the impact of new or revised policies and practice on the needs that are set out in the public sector equality duty, reporting on mainstreaming equality, publishing information on the gender pay gap and equal pay, and taking account of the equality duty in the context of procurement.

I am happy to answer questions.

Thank you for that comprehensive run-through of the purposes of the two orders. The cabinet secretary will be pleased to know that we considered the negative instrument earlier this morning and it was agreed to.

As members have no questions on either of the affirmative instruments that the cabinet secretary described, we will move on to consider them formally. The same procedure applies as before.

Motions moved,

That the Health and Sport Committee recommends that the Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2018 [draft] be approved.

That the Health and Sport Committee recommends that the ILF Scotland (Miscellaneous Listings) Order 2018 [draft] be approved.—[Shona Robison]

Motions agreed to.

I thank the cabinet secretary for her attendance.

11:44 Meeting continued in private until 12:44.