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Chamber and committees

Health, Social Care and Sport Committee

Meeting date: Tuesday, October 8, 2024


Contents


National Care Service (Scotland) Bill: Stage 2

The Convener

The next item on our agenda is a concluding evidence session that forms part of our scrutiny of the Scottish Government’s proposed stage 2 amendments to the National Care Service (Scotland) Bill. I welcome to the committee Eddie Follan, who is the chief officer in health and social care, and Councillor Paul Kelly, who is spokesperson for health and social care, both from the Convention of Scottish Local Authorities. We are also expecting Louise Long, who is the chief executive of Inverclyde Council, to join us. She will be representing the Society of Local Authority Chief Executives and Senior Managers in Scotland. We will move straight to questions.

Good morning. I am interested to hear whether youse are still in support of a national care service.

Councillor Paul Kelly (Convention of Scottish Local Authorities)

Good morning to the committee. It is good to be here. The position that COSLA leaders took at our most recent meeting was to withdraw from the shared accountability arrangement for the national care service due to a number of reasons that we have outlined. That decision was taken by COSLA leaders after lengthy discussions and negotiations with the Government over an extended period.

At this stage, our position is that we have withdrawn from the process and want to work with partners and others on the reform that we think needs to happen to the system right now to make the changes that are required to support the people who need support.

Eddie Follan (Convention of Scottish Local Authorities)

I will just add to what Councillor Kelly said, Ms Harper, about COSLA leaders taking the decision after lengthy negotiation around the shared accountability arrangement. At the moment, we do not feel that the arrangement reflects the discussions that we had with the Scottish Government over a long period of time.

Let me be clear, though: COSLA is fully supportive of system reform. We are still in favour of a national care service but we are not in favour of a national care service as it is set out in the bill, at the moment. You will have seen from our evidence that we started negotiations in, I think, April 2023, or something like that. We had a long period of negotiation in which we talked about policy and there was a lot of compromise, a lot of discussion and a lot of negotiation with the Government.

By June 2023, before the draft amendments were produced, we realised that we had got to a stage at which we were down to three issues on which we couldnae get agreement: direct funding of integration joint boards, children’s services and the removal of members from IJBs by ministers. When we got to that stage, we had done a lot of work—the principles, the charter and the national board were more or less nailed down, as far as we were concerned.

We knew that the Government was producing amendments but we hadnae seen the amendments—you will know that from our submission. Unfortunately, we got the proposed amendments about an hour before. We had an hour in the room to look at them. They were pretty detailed amendments, so we couldnae really get a chance to go over them. When we looked at them, there were issues for us, particularly around the national board, the shared accountability agreement and the ability for ministers to move services from the “may be delegated” category to the “must be delegated” category. However, we still support reform. As far as the national care service goes, we are still supportive of it but we are not supportive of it as it appears in the legislation at the moment.

Emma Harper

You talked about direct funding, children and the removal of members from IJBs. In your negotiations with the Scottish Government—in the tripartite agreement that came to be the way to move forward—what additional reform would you like? What fundamental changes need to happen now?

Councillor Kelly

As Eddie Follan has highlighted, we were in extensive negotiation with the Government over a long period. We felt that we had reached three areas that the Government was not able to support. Subsequently, when the draft amendments were laid, there were other substantial areas. The total has risen to seven areas, as Eddie Follan said.

We are very concerned about what the bill looks like now. There is centralisation, bureaucracy and additional layers of governance that are really not what the system is looking for right now. We work extensively with the Government and partners on the issues that currently face the system through, for example, the collaborative response and assurance group—the CRAG—together with the whole-system improvement group and the statement of intent. People who work in social care and those who use our services tell us about the need for investment and for a look at recruitment and retention, which are key issues that need to be addressed right now.

We do not think that, in the current format, the national care service will deliver that. If anything, it will add bureaucracy to a system that is already struggling. There are lots of areas in which we could work on improvement and are committed to doing so, but we do not think that they currently take the form of what is in the National Care Service (Scotland) Bill.

Emma Harper

Last week, the example of delayed discharges in East Ayrshire, North Ayrshire and South Ayrshire was raised in evidence. There is one health board but three local authorities. One local authority is doing really well in addressing delayed discharges. Is the support of care boards not part of the reform of creating a national care service, so that we can identify why something works really well in one area but not in the other two? That is only one example, but other local authorities struggle with delayed discharges. Is it not part of the reform to look at what is working in one area but not in others?

Louise Long (Society of Local Authority Chief Executives and Senior Managers)

Good morning, committee. I am Louise Long. I am the SOLACE representative. I apologise for being slightly late; I got caught in security.

I have had the pleasure of being a chief executive, a chief officer and a chief social work officer. I have worked in a number of local authorities, including one of the Ayrshires. The situation is very different because of the different needs of different communities. Even the three Ayrshires are very different in some things that they do and some of the third sector organisations that they have. You cannot always compare; it is not comparing apples with apples. Sometimes, for example, the Highlands are apples and Glasgow is pears.

The Promise board is a vehicle for scaling up and disseminating improvement. We do that all the time for children’s services, without the need for legislation. We need to think about how we drive improvement across the totality of the system.

Eddie Follan

You are right. We have been working fairly intensively with the Scottish Government on the joint mission to reduce delayed discharges. It is fair to say that there has been a fair amount of intervention from ministers, and Councillor Kelly has been involved in that as well, in local areas. We are working with civil servants to support those areas.

I have heard about the Ayrshire example but, as Louise said, even in that area of Ayrshire there are very different circumstances. For instance, we know, that North Ayrshire faces particular issues around care homes, and we have been working intensely with South Ayrshire, which has completely different circumstances from North Ayrshire. East Ayrshire is different again.

The issue for us is about what would make the biggest difference. The way in which the bill is framed at the moment is about ministers having the power to intervene and to set strategic direction. We had thought that the board would do that; however, it is about ministers doing it, but not in partnership with us. At the moment, we intervene and there has been some progress on delayed discharges, but it is a very difficult and complex issue.

Everywhere we go—we have been out in most local authorities with civil servants and ministers—the issue that we hear about is inability to get the workforce to provide care at home because of a shortage of social workers. We need to deal with that, but it is not clear to us how the legislation will deal with the workforce issue. We could probably do that without legislation, but we all know that there are workforce issues across the piece.

Emma Harper

I have a final wee question. In the agreement that ministers are working on with COSLA, ministers have the ability to co-design a framework bill—it is a framework bill—then to build on that with further legislation. Would continuation of negotiation support the challenges that you describe on standardising the competency requirements for all staff across Scotland? That is part of it. The bill might not address the shortage of staff, but it looks at how we approach the engagement that is required to have a workforce that could be paid equally, for instance, across the whole of Scotland. That is my understanding of the joined-up co-design approach to creating a national care service that would work across Scotland with the local levels that are required, as Louise Long described.

Eddie Follan

The way that the bill is framed at the moment is about governance and structure. We thought that we would have a shared accountability arrangement between council leaders and Scottish ministers. We would then have the national board, which, in our view, should set the strategic direction and set national standards. We would have a national strategy for social care—which, amazingly, we have never had in this country. The board would drive that. There would also be a relationship between the national board and the IJBs—or, as I think the Government wants to call them, the local care boards. That is all fine; that is about governance, but it is difficult to see how it would deal with pay and the terms and conditions of the workforce.

COSLA is working closely with the Scottish Government on the fair work agenda, so we are pushing that as far as we can, but it has come up against one fundamental issue, which is finance. We all recognise the state of public finances, including when it comes to fair work. I know that colleagues in trade unions are frustrated about that, but that is separate from the national board.

It is really difficult for us to see—I do not know whether my colleagues will want to come in on this—how that governance arrangement and structure will change the local relationships that we have. We have bargaining structures in local authorities and we have the Scottish joint council, which deals with the local government workforce. I know that there have been discussions about sectoral bargaining with the third and independent sectors, but those are separate from the bill.

As you said, Ms Harper, it is a framework bill and we need to see more detail, but we are always open to discussing our position and to negotiating, because the bill is too important. This is about people’s lives and the care that we deliver. I do not think that anybody in this room doesnae want to see improvement in the system but, ultimately, we have fundamental differences over some really sticky issues. However, we are always open to discussion.

Councillor Kelly, in your opinion, how can the national care service go ahead without the co-operation of COSLA?

Councillor Kelly

As Eddie touched on, we never wanted to reach this position. We have been part of this process extensively since 23 April, and we have had discussions on the issue with all the various cabinet secretaries at different times since I took my post on 22 June. We tried hard to reach a position where we can support a national care service that delivers the changes that we all want.

09:00  

As to what became difficult in the negotiations, and to answer your question about what the next stage will be, we got to the point at which things were not negotiable any more, because we made points that were heard extensively but were not listened to. We were quite clear that we had compromised in a number of areas, and that there were three outstanding matters that we wanted to see compromise on. When the draft amendments were laid—we had only an hour to look at them—that led to there being other significant areas that threatened the role of local government and local decision-making in social care. That caused significant concerns about what the bill would deliver, other than bureaucracy, increased governance and other things that will not make a difference to the system.

The next step would be that COSLA is bypassed. What is your view of the Scottish Government bypassing COSLA and going directly to the councils?

Councillor Kelly

The cabinet secretary referenced having discussions with councils outwith COSLA. The Convention of Scottish Local Authorities is the representative membership body of the 32 local councils, and councils are committed to COSLA taking on issues of significance, such as the national care service and budgets, in discussions with the Scottish Government. Leaders have stuck to that position. It is up to the cabinet secretary if he wants to have discussions of that kind with local authorities, but it would inevitably come back to COSLA.

As part of withdrawing, we have been clear that we want to focus on the here and now and the issues that are faced by the system. As I outlined, we are already doing extensive work with the Scottish Government on some of the key areas including recruitment and retention of staff and the financial vulnerability of authorities. We are committed to doing that and to working with partners. We have made our position on the bill clear; it is up to parliamentarians and the Government to decide the next stages.

Are you saying that it is part of negotiating tactics, or are you saying that there is a real possibility that COSLA could be bypassed?

Councillor Kelly

That is not part of our negotiating tactics. It has taken a significant amount of discussion and thought for us to come to this decision and for leaders to withdraw from shared accountability. We have done so because we have significant concerns about the direction of the bill as it currently stands and the impact that it could have on service users and on our workforce. We are still open to having discussions with the Government and others about reform of the system.

Tess White

I have one follow-up question. Many councils do not want the national care service anyway, and there will be huge issues if COSLA is bypassed and the Scottish Government goes directly to councils. I was looking at the written submissions, and Aberdeenshire Council asked whether staff retention, attraction and retention and pay could be focused on. If COSLA continues with withdrawal of its support and the councils do not support the bill and its proposed implementation, is it completely dead in the water?

Councillor Kelly

That is not a position that COSLA can take. That is up to parliamentarians and the Scottish Government. As I said, we will represent the view of local authorities. Collectively, all local authorities and leaders were behind the submission that we made to the committee, which showed the quite serious concerns that we have in a variety of areas. Leaders want us to focus on the issues that social care and service users face right now, which are very significant, so we will focus on them.

Joe FitzPatrick (Dundee City West) (SNP)

I have two quick questions. First, does COSLA think that the bill will be improved by the stage 2 amendments, or will the amendments make it worse? Would you prefer the bill without the stage 2 amendments, which have not yet been passed? Secondly, have you done any work on amendments of your own that you might ask MSPs to lodge during the stage 2 process? We are in an unusual situation of having a pre-stage 2, which means that the amendments have been lodged, but have not been voted on yet.

Councillor Kelly

As we outlined in our submission, we have significant concerns with some of the amendments. We were disappointed because we had outlined three key areas, which were focused on in the negotiations, but we had only one hour to look at the amendments before they were lodged. We were told that that would not be the case, and we thought that we would get more advance notice so that we could have a proper discussion. We then had other substantial concerns, including national accountability and what the board would look like. There was a lot of deviation from the discussions that we had with the Scottish Government, the cabinet secretary and ministers.

Eddie Follan

I want to give a wee bit of detail on some of our major concerns around the amendments. Councillor Kelly has laid out our broad issues. The bill would give a power to ministers to move local authority services from a “may delegate” to a “must delegate” category. That would include children’s services, as ministers have been quite clear that they want them to sit under the national care service board. It could include homelessness services. Louise Long can talk to that point—those services are fully delegated in Inverclyde Council, so it might be useful to hear from her.

Those services are delivered through local decisions, because of local circumstances. For local services to all be in the “must delegate” category would mean that there was a central decision that local services must be delegated under the auspices of the national board. Those services would then be under the national board and the shared accountability—which is, in our view, overly focused on Scottish ministers—and strategic direction would be set, which would mean that ministers would direct local services in a particular way. I know that the Government may disagree, but that is how we see the bill at the moment.

The other bit that we are concerned about is the national board. Originally, our vision of the national board had been about support, improvement and national standards, and about setting the strategic direction, advising ministers and leaders on issues, supporting local improvement and monitoring. We have agreed that there should be a support and improvement framework but, in the bill at the moment, it isnae about support and improvement but about monitoring and scrutiny. If we could go back to the original vision, we could make some progress. However, at the moment, we are pretty far from it.

As far as amendments go, we would like to see the bill amended to recognise the role that local decision making plays. I do not know whether Louise wants to add anything.

We may come back to some of that if our members have questions.

David Torrance (Kirkcaldy) (SNP)

In the light of the withdrawal of COSLA’s support for the bill, do you still accept that there is a need to amend the Public Bodies (Joint Working) (Scotland) Act 2014 to improve integration of health and social care, and if so, are there adequate options in the secondary legislation in the 2014 act to allow that?

Councillor Kelly

We have been clear in discussions that we want to see reform of integration and clear on what integration looks like. However, we have also been clear that it is early—the 2014 act is still fairly recent, and a lot of progress still can and must be made around integration authorities.

There needs to be a supportive role. The issue is about how we support integration authorities and integration authority members who have a significant responsibility. We have been very much up for considering reform and changes to integration that actually support and empower local decision making in the communities that we represent.

Louise Long

I was around when the 2014 act was brought in. We could learn from that act and add things to the current legislation to give integration joint boards more authority. What is in the 2014 act is not that different from what is in the legislation on the national care board. You do a strategic needs assessment in your local area, then make a strategic plan that belongs to your IJB, and then give directions to your health board and council. All the tools are currently in the 2014 act and, with some amendments, that could be supported to be better.

Eddie Follan

We have to remember that integration is still fairly young. We are 10 years on, but it is a complex process and we have had a pandemic in the middle of it. We feel that more support should be in place for integration and for integration joint boards—we have discussed that point with the Government and we all agree on it. Members of the IJB should really get more support for what they do and there absolutely should be more training for IJB members. Those are the kind of softer reforms that we would like to see that would really make a difference to the integration process.

David Torrance

In the light of an earlier answer from Mr Kelly, I want to ask what discussions you have had with Highland Council and NHS Highland about the impact of potential changes. In evidence last week, the committee heard that they were in support of the Government’s stage 2 amendments, but earlier you said that all council leaders are in support of what you are doing.

Councillor Kelly

Yes, all council leaders have supported our submission to the committee and the actions that we are taking. The most recent dialogue with Highland Council was on the situation that it is facing, and there has been dialogue between me, the cabinet secretary and others with the Highland Council in a supportive role with regard to what it faces.

On the lead agency model, which is different from the rest of the integration positions, we want to see support for Highland Council to move to whatever comes into existence. That will involve looking at its structure and financial support for it with regard to any changes that would have to take place. We have been committed to that dialogue with Highland Council in a very positive way.

Eddie Follan

I want to reiterate that the submission to the committee was supported by 32 local authorities. There are discussions in Highland Council about the lead agency model and where that sits as a result of the amendments. That is very much a discussion and a decision for it locally, as it should be. In any discussions that we have had with the council about that, it has been clear that any change needs to be funded, because there could be significant financial implications of a move from lead agency to the IJB model. That is also a matter for Highland Council.

Ruth Maguire (Cunninghame South) (SNP)

Good morning to the witnesses. Thank you for being with us. I would like to ask questions about the care service principles and charter. All of us will have experience of how challenging it is for people to navigate social work complaints processes. The committee has heard in evidence that, to all intents and purposes, local authorities are marking their own homework in this regard, meaning that people have nowhere to go if their care package is cut or if they are assessed for a certain level of package but then do not get that. How should the process be improved?

Louise Long

There is the Scottish Public Services Ombudsman. There are a lot of complaints processes. There is the health complaints process, the council complaints process and the joint health and social care partnership complaints process, so it is complicated. With regard to the principles, one of the good things in relation to the original bill was that it included advocacy and the right to information and advice. Giving people the right to information and advice as well as the right to advocacy could be done now, if additional funding could be put into advocacy services. Those services are difficult to navigate, just as it is difficult to navigate the health system on its own or the council system on its own. When you have two systems, it is difficult for service users to navigate that and it is not easy to think about how that would work with another system.

My understanding of the bill is that the national care board would take in complaints and give those to us to investigate and that we would then hand those back to the board. That feels like another layer. There is also the SPSO and the health complaints process. It does not sound as though we are simplifying the process.

Ruth Maguire

How do we simplify the process? It is always helpful to think about it from the perspective of someone who, for example, has a family member whose care package has not been fulfilled. How do we simplify the process for them to complain and get what they are entitled to?

Louise Long

People need to have rights, know their rights and know where to get advice and support. That experience can be very different in different areas. We need to ensure that people have the right information and the right advice. Lots of people already have rights, but they do not know how to complain or make sure that those rights are enforced. The problem in relation to things such as care packages is that demand outstrips capacity. When you do not have the workforce, you cannot provide some of the care, so there is a balance to be struck in relation to that.

How do local authorities balance expectations against the reality that you are facing?

09:15  

Louise Long

Most health and social care partnerships—it is not the local authorities now—have eligibility criteria in social work and social care that prioritises those who are in greatest need, which means that we do not end up doing prevention. That is exactly what the Feeley report referred to. We need to invest more in prevention so that people are not going into crisis, but that is one of the issues with the current system.

People have a universal right to healthcare services and they should have a universal right to social care services, but it is a very scarce resource. Even if we had all the money in the land, we do not have the workforce to deliver some of that. We have to be realistic and have a system that prioritises those who are in the greatest need.

Ruth Maguire

You spoke about the importance of service users knowing their rights. Would you be confident that all the services and employees across health and social care partnerships understand the rights that people have to their services and what the levels are? You spoke earlier about criteria.

Louise Long

I would be confident that social workers understand eligibility criteria. There are health and social care standards and Care Inspectorate standards—there are all sorts of standards within health and social care. That is why I think that something like the principles could simplify all that.

It would be difficult to say that everybody right across the land understands what their rights are, whether they are care experienced children, people with a learning disability or older people who are in hospital.

What are local authorities doing to ensure that complaints and feedback are learned from and are helping to improve services?

Eddie Follan

An extensive amount of work goes on in local authorities on the complaints process and how feedback is brought into the system. That happens in different ways in local authorities across Scotland. It is an important part of the work that the integration authorities and local authorities do to make sure that we can best support people when there are issues with their care and social care packages. Local authorities are continually looking at that and going out to communities to consult on it. It is a really important piece of work.

Going back to your point about the NCS principles and NCS charter, we are generally supportive of those principles. They are very important. A lot of work is undertaken in areas such as fair work and looking at how we can support people as best we can, and the NCS charter is supportive of taking that forward. We want to see those improvements.

Louise Long has made the point that we cannot get away from the fact that social care has been underfunded for a number of years. Local authorities have been faced with significant challenges to their budgets for more than a decade. That has had an impact on the social care packages that we can provide for our communities. Certainly, from our discussions with local councils and partnerships, we know that they want support right now so that we can provide better support for the people who need our services.

Louise Long also made a good point about how money could be put into advocacy and local partnerships to help people with navigating the system, whether it is through local authorities, integration boards or health boards.

Ruth Maguire

We always acknowledge that more money would be helpful for everyone. We are definitely in tough times, but it cannot always just be about money. We need support for the charter and the principles, and I think that everybody wants to achieve the aims that are outlined for the national care service, especially if we think about our citizens and the service users who are not always getting the best at the moment.

COSLA’s position is that it is open to negotiating and achieving those aims. We have spoken about areas in which there is disagreement, but if support for the overarching aims is there, I would imagine that you would want to talk more.

Eddie Follan

I have a good example of where we have had constructive discussions. There have been extensive discussions and debates on complaints with the Government. We absolutely want to get that right, but we have to make sure that, when it comes to complaints, we are streamlining the system and not adding a layer of complexity.

My understanding is that, as Louise Long said, there would be a repository of complaints that could be looked at and allocated to the specific complaints body. If there is a role for monitoring how those complaints are addressed and dealt with, we would discuss that. We are quite clear that we have been working on that area of the bill and have made compromises on it.

Carol Mochan (South Scotland) (Lab)

Good morning. I am interested in the topics of the national social work agency and the national chief social work adviser. Our job is to scrutinise the legislation as it comes through. I recognise the position that you are taking, but it would be useful for us to understand how you would feel about having a chief social work adviser and how that position would link to the roles of local authorities.

Councillor Kelly

I will touch on the first part of your question and then hand over to Louise Long. For the reasons that have been outlined, COSLA supports the proposal for a national social work agency. We have done extensive work on it with the Scottish Government and we would like to push forward on that and keep our discussions going. The agency would cover many important areas that could make improvements to a system that really needs support right now.

Louise, perhaps you could touch on the chief social work adviser position.

Louise Long

SOLACE supports the proposal for a national social work agency. Anything that helps our social work staff to feel valued, stay in their careers and have pathways of support can be only a good thing. The bill misses an opportunity, though. Although the social work profession is important—I am a social worker, so I would say that—it is only one part of the adult social care world. There are many social care workers, and it would have been helpful for them to have some form of leadership through a national social work agency. However, there is a whole range of support for a national social work agency out there from professional bodies—for example, I know that the committee has heard from Social Work Scotland as well as SOLACE. That is because we understand that the aim of the bill is to put social work staff on a better footing with other colleagues, such as those in education and nursing.

Eddie Follan

That is another area where we have been working pretty extensively with the Scottish Government. We support the idea of having an office of the chief social work adviser. We have a partnership approach to working with Social Work Scotland, COSLA and the Scottish Government in exploring what a national social work agency would do. We are talking about workforce planning, having a national strategy for social work, implementing support through social work employers to ensure that Scotland achieves its policy intentions, and promoting training and professional development. We have had a really positive discussion on those aspects.

Carol Mochan

I have one follow-up question. I have listened to what you have said, which has been helpful for our scrutiny of the bill. Do we need the legislation that would establish a national care service to do this stuff, or could or should we be doing it now?

Councillor Kelly

That is an area where we would like to say that we can do it right now. Obviously, it would be for the Government and parliamentarians to decide the requirements for legislation, but we certainly think that we can get on with such measures. Eddie Follan has covered many of the areas that we are in discussion about, but we are not waiting around on those. We know the situation that social work staff face right now: providing them with support and getting more people into social work is important. We would want to work on that no matter what.

Eddie Follan

To be honest, it probably doesnae need to be in legislation. What is in the legislation is establishing the chief social work adviser. There are merits to that, and we have discussed those in the context of how the chief social work adviser could be an influence within Government. However, we need to have a wee bit more discussion about what that partnership would look like. My understanding is that the Government is thinking of having an executive agency, but my view is that it would have to be a partnership. We have the statutory responsibility for the workforce, Social Work Scotland do the professional development bit, and the Government obviously has an interest as well. We need to think a bit more about whether that is necessary and how the partnership would work.

Paul Sweeney (Glasgow) (Lab)

I thank members of the panel for their answers so far. I turn to the commissioning and procurement provisions in the bill. More generally, what appetite is there among COSLA members to undertake fundamental reform of social care that would further embed integration? We often hear about variation across the country. Is there an appetite in COSLA to undertake that effort in order to understand how to improve the experience of those seeking care and support?

Councillor Kelly

Absolutely—that is key for us. There is variation across the country for a variety of reasons. We would not want to see local voices lost from local decision making. For example, someone in Shetland faces different issues—accessing services and Shetland-specific issues with the recruitment and retention of staff—from the issues that are faced in areas such as Glasgow. That is important, and it is something about which we get a lot of feedback from users. They want to see local decisions taken at the local level that reflect the needs and requirements of communities.

However, across the country, there are common themes, such as the recruitment and retention of staff and the funding of the system. We have to work on those common themes right now. We have been very clear with the Scottish Government that, if we want to see improvements to integration and partnerships, those are the areas that urgently need to be worked on, because the social care workforce is doing a tremendous job in the most difficult circumstances with some of our most vulnerable individuals.

Eddie Follan

I keep referring back to where we have actually got agreement on things, and we have had fairly positive discussions on commissioning. Councillor Kelly has touched on variation, but there is a case for national commissioning of certain services. We have been in discussions about that. We recognise that a national board might have a role in undertaking national commissioning on agreed and complex specialist services. That is why it is so important that we get the shared accountability arrangement right, so that we make decisions on those issues jointly with the Government. As I said before, we feel as though the balance is out at the moment when it comes to ministers taking control in that direction, and we certainly see that with national commissioning. Perhaps Louise Long would like to add to that.

Louise Long

It is disappointing that ethical commissioning does not have a more prominent part in the second part of the bill. Fair work is different from ethical commissioning. Local government is working with the Scottish Government across the piece on fair work, but ethical commissioning would go a long way towards supporting the workforce who work in the third and private sectors and making sure that they feel valued—a social work agency might achieve that, too—and feel engaged. We need to keep as many people working in social care as possible. There is an opportunity with commissioning to do something different.

Paul Sweeney

As I understand it, there are proposed amendments that would remove explicit reference to ethical commissioning. Do you or any other members of the panel have a view on how best to realise ethical commissioning? Would that be through the bill or through some sort of secondary legislative provision?

Louise Long

Ethical commissioning is expensive. It is about more than people’s terms and conditions or travel in relation to work. I know that, having tried to ensure that we ethically commissioned home care services in Inverclyde over a long period of time. It took a lot of work and a lot of input, and it was very expensive in comparison with other approaches. If we are committed to ethical commissioning, we will need to provide more funding for it, which is difficult when resources are so scarce.

Would you prefer to see it in the bill?

Louise Long

If we are looking at social care as a whole system, and if we want to make the whole system better, ethical commissioning should be in the bill.

Paul Sweeney

I turn to the point that Mr Follan made about proposed new section 12M of the bill, which is about the reserved procurement process. What is your view on the proposed amendment that would enable the national care service board to procure goods and services on behalf of other public bodies or the Scottish ministers?

Eddie Follan

We probably need to take a look at that more closely. There is something about the broader role of the national board and the detail of the way in which it would work that we have not really got to yet. Our principled position is that that would have to align with local decision making and with local financing and budgetary arrangements. I could certainly come back to you on that.

09:30  

No problem. Would you like to make any further points about that?

Eddie Follan

Louise Long might wish to.

Louise Long

I suppose that we could see a case for procurement by a national body for the secure estate, for instance. It is very expensive for a young person to be held in secure accommodation. Given the services that private and third sector organisations run for the secure estate, we could see a case for a nationally procured secure estate to reduce costs across the country and to ensure capacity. You would need to understand the detail, however, and to get agreement to ensure that what you are procuring on a national basis adds value and does not distract from what people need locally.

Concerns have been raised by stakeholders in submissions to us about the interaction between Scotland Excel and local authorities and how the new board would intersect with that. Do you share that concern?

Louise Long

The SOLACE submission mentions Scotland Excel. We have had a very successful relationship over a number of years with Scotland Excel, which commissions on behalf of local authorities and which has a framework that we all buy from. It is a long-established organisation that provides high-quality services to local authorities. We need to think about the interface between what the national care service wants to do and the bodies that are already in place—Scotland Excel, the Care Inspectorate and the SPSO. It is a matter of working out how all those things weave together.

Eddie Follan

The lack of clarity in those relationships is one of the issues that we have. We do not really know how things would work. As Louise Long said, local authorities have a fairly strong relationship with Scotland Excel, which is working hard with other providers. We have had discussions with Scotland Excel in recent weeks about that. That relates to the secondary legislation aspect. Commissioning is a complex area, as is procurement.

Paul Sweeney

What consultation has been carried out on that between the Government and yourselves? For example, in its submission, Carr Gomm said:

“We do not observe anything in Section 12M that will change the existing approach being used, and so fear that fundamental procurement orthodoxy will continue to dominate at the expense of strategic, collaborative and thoughtful commissioning.”

That point must surely have come up in consultation.

Eddie Follan

There have been discussions around the commissioning processes, but we do not have the detail of how that would work.

Okay. That seems to be a shared view.

Gillian Mackay (Central Scotland) (Green)

Good morning. We have been discussing a few of the things that everybody has some concerns about, but there are parts of the bill that people agree should be implemented. There have been delays in the implementation of Anne’s law—we have heard from relatives of care home residents regarding their concerns about implementation. Pending the implementation of Anne’s law, are the two new health and social care standards that were introduced in 2022 sufficient to ensure that care homes residents can maintain meaningful connections? Why have there been delays? What else could be done to support the implementation of Anne’s law?

Louise Long

People have a right to a family life—that is already enshrined. Both COSLA and SOLACE are supportive of Anne’s law.

I have considered the two standards, as I was involved in establishing care home visiting during the pandemic in my role as chief officer, so I have a keen interest in what we are doing in relation to our care homes. They are inspected by the Care Inspectorate, and those inspections are really important.

There has been a care home collaborative, and the Care Inspectorate has been doing some work on improving people’s experience in care homes. I would be confident that nobody in the system wants to keep people away from their families.

During Covid, people were really scared. They did not know, and they took public health advice. I am still very supportive of Anne’s law, but now that we are better informed and the Care Inspectorate covers the issue in its standards, I think that we are in a better place to make sure that people get access to their family—and that they feel connected, because it is about more than just access to their family.

Are the two standards sufficient?

Louise Long

They go a long way towards giving us some reassurance that things are happening now and that we do not have to wait until 2028 for their implementation.

Gillian Mackay

What are your views on the intention to bring social work services together, particularly given the potential inclusion of children’s services within the national care service, the pattern in which things are included—or not—across the country at the moment, and the potential difficulties that that could cause?

Councillor Kelly

I will start. We have expressed significant concern over where children’s services and justice services fit within councils or within partnerships, and, when it comes to the bill, over the ability of ministers to decide where things will lie in terms of integration and the new care boards. We are very concerned about that. There is no evidence that that will improve the system. We have been very clear that local government wants local decision making to remain at the local level, with decisions taken by local authorities and partnerships. We are clear that it is very important that the current system of children’s and justice services is aligned to the work of councils and partnerships.

Louise Long

I am all in for integration. We have homelessness, children’s, justice and adult services. The last time that SOLACE presented to the committee, we talked about the time, energy and resources that go into a long piece of legislation. The committee will know that CELCIS did some research for the Scottish Government that said that children’s services are in crisis. I am now concerned about the instability of moving things around despite the fact that there is a crisis in children’s services and that children require to be supported. Local authorities are trying to bring in the Promise, but we are talking about moving children’s services out of a partnership with education in different places across the country.

I remain concerned that children’s services have not recovered from Covid. I probably feel more strongly about that issue than do my colleagues in COSLA. This is about timing and about making sure that services are safe and that staff feel supported. The staff in children’s services want direct support. They do not want more governance or more layers of confusion. CELCIS talked about their wanting clarity.

Gillian Mackay

What parts of the bill would the witnesses like to progress? Your opinion may be personal or be given on behalf of the organisation that you represent. Notwithstanding the fact that Anne’s law could in theory be progressed outside of legislation, I very much recognise why carers organisations, people with lived experience and many others want some of those things to be enshrined in law, so that they are not negotiable. Eddie Follan is nodding along, so I go to him first.

Eddie Follan

I will not speak from a personal perspective, if you do not mind. We have been clear that we are really supportive of Anne’s law. The single shared record is also important. COSLA has done significant data and digital work in relation to social care. Not only can that work play a role in making the experience much better for service users; getting it right can also alleviate pressures on the system. We are working on how the community health index number—the CHI number—translates to local government. The single shared record is crucial and central. We would like that to progress.

We have talked about principles and charters. We probably do not need legislation for a charter, because we work with charters in other ways. However, a charter needs to be deliverable; it needs resource. We want to see stuff that would improve outcomes and improve the situation for people who use the services.

Councillor Kelly

We have talked about the national social work agency, and the extensive work that is going on in that regard. We have also talked about carers having a right to a break—that is important, and it is something that COSLA is keen to develop and work on with the Government. We have also discussed Anne’s law and other areas, including the need to acknowledge the current issues that are facing the system, such as the important issues around funding and the recruitment and retention of staff. Those are all issues that we all need to collectively work on right now.

Sandesh Gulhane (Glasgow) (Con)

I remind members of my entry in the register of members’ interests, which states that I am a practising general practitioner.

Councillor Kelly, you said that COSLA had pulled away from shared accountability, yet paragraph 80 of the memorandum talks about the importance of shared accountability. Given that unions have withdrawn support from the NCS—the Scottish Trades Union Congress and COSLA are the latest bodies to do so—and that, as we have heard, most of civic Scotland is united against it, it seems to me that the bill is dead in the water. However, Maree Todd, the Minister for Social Care, Mental Wellbeing and Sport, has said that COSLA’s

“walking away ... shows total disregard for the people we all serve.”

If the NCS is pushed through in its current form, what do you feel will happen to the sector?

Councillor Kelly

In our submission and the evidence that we have given today, we have been clear about the serious concerns that we have about the impact that the bill, in its current format, will have on those who access social care and on our workforce. We have not seen evidence that it will lead to the improvements that we are all looking for. If anything, the additional level of bureaucracy and governance could lead to significant concerns around those services. Certainly, the bill does not deal with the issues that we currently face.

On the minister’s comments, I want to be clear that people with lived experience and service users are at the heart of everything that local authorities and partnerships do. They are absolutely vital to us and, at a local level, they direct decisions that we take. We know what many people with lived experience have gone through as part of the bill process and we certainly do not want to lose any of those experiences or voices. In the current situation, we are absolutely committed to continuing to have dialogue and discussion with those individuals. We want to see reform of the system as soon as possible, but, as we have said, we cannot support the bill in its current format.

Sandesh Gulhane

I would like to examine how we can evaluate what is going on. Looking at the bill, I believe that there are no references to rights, accessibility, ethical commissioning, procurement or quality, and, as we have just heard, children’s services are currently in crisis. How are we supposed to evaluate what happens to people on the ground if the bill is brought in?

Councillor Kelly

It is clear from our submission that we have significant concerns. Some of the areas that you have listed are areas in relation to which we were negotiating. However, as I said earlier, when the amendments were produced in draft form, local government had some quite serious additional concerns about decision making and process. All that we can say is that those areas are very concerning to us. We are concerned about the impact that the bill could have on service users and our workforce.

Eddie Follan

You will have heard these concerns before but, because it is a framework bill, there is a lack of detail on how it will eventually look and how it will be implemented—we acknowledge that what is in legislation can sometimes look different when it comes to implementation.

The lack of detail hampers us a bit in terms of what we can say about how the legislation would apply locally and how it would change the system. I guess that that is something that we would see in time.

We have previously expressed a concern that secondary legislation is subjected to less scrutiny. If we were in discussions with the Government about that, we would want to discuss what the secondary legislation would look like, but, at the moment, we are not.

It has been suggested that there was a huge political divide in COSLA with regard to its position. Is there a huge political divide? What is your absolute current position?

09:45  

Councillor Kelly

As far as the submission that I mentioned earlier is concerned, there is absolutely no political divide within COSLA. All leaders signed up to that submission, and all the concerns that we, as a membership organisation, have raised at committee were directed to them. The question whether we were to continue discussions with the Government or withdraw from supporting the proposal for a national care service went to leaders. They had a debate on it, and they took the decision to withdraw.

Right now, we have withdrawn from shared accountability. As we have mentioned a few times, we want to focus on the reform that the system currently needs. We are working extensively with the Scottish Government on the pressures that the system faces, such as delayed discharge and other medium-to-longer-term issues. We want to see the focus being placed on those. We are committed to working on the required reform with our stakeholders, whether they be the trade unions, which have made clear their opinion of the bill in its current form, or others, such as service users or the third sector. However, at this stage, we have withdrawn from shared accountability.

Sandesh Gulhane

Louise, one of the areas that you mentioned as desperately needing reform was children’s services. What reforms can we undertake now, or should we wait for an NCS to be established before we do them? Once we have put reforms in place, what should be the criteria for their success? How should we go about considering all that?

Louise Long

I believe that the committee has received a submission from The Promise Scotland, which focuses on care-experienced young people, trying to keep young people with their families and ensuring that we improve their outcomes. There is a commitment on that, and work is already going on in the system.

The committee has also heard from Social Work Scotland. The issue in children and families is that we currently have a very young workforce. We have inexperienced social workers all of whom are working really hard, are dedicated and want to make a difference to children’s lives but, at the same time, very experienced people are leaving. We used to have a mixed economy. That is why we support the social work agency by doing whatever we can to value social workers, including encouraging them to come into and stay in the profession.

If we could reform children’s services, we would see fewer children coming into care, fewer children being involved in the children’s hearings system, and the provision of early support for families that is easily accessible in people’s own communities. Each of the areas across Scotland that are funded by the Scottish Government has developed its own family wellbeing service. They are all slightly different, because those areas are all slightly different: for example, the service in Argyll and Bute is different from the one in Inverclyde.

There is a good indication of earlier help and early intervention to try to ensure that we stem the flow of people who come into crisis further up the system. However, that will take time, because the service is still recovering from the Covid pandemic. Young people still have significant mental health issues, so the system needs stability.

Sandesh Gulhane

This will be my final question. On 27 September, the Scottish Government told the BBC that it was “extremely disappointing” that some COSLA leaders had chosen to “frustrate progress” towards a national care service. Do you feel that that is an accurate representation? Did you engage with the Government after the draft amendments were laid? If you did, what was the timeline of the response that you received?

Councillor Kelly

I do not think that that is an accurate representation. We have been clear today about how extensive our negotiating and discussions with the Scottish Government have been, and we have been honest and upfront about our concerns. We engaged when the draft amendments were laid. As I said, we were disappointed that we got only an hour to look at them, given our significant involvement in those discussions.

I know that some of the spokespeople at COSLA wrote to the Cabinet Secretary for Health and Social Care, and we followed that up with a subsequent letter to the cabinet secretary in September. I had a meeting with him to discuss our concerns. We got a response to that in a formal letter the day before the leaders did.

At every stage, we have tried to have discussions and dialogue with the Scottish Government and we have made our position clear. As we have shown today, we have been more than willing to compromise. At the heart of everything that we want to do in local government is delivering the changes that our communities and service users need and require right now. That is what has driven us in the making of every decision that we have taken.

The Convener

I have a few follow-up questions on issues that other committee members have raised. Councillor Kelly, I heard you say a few times that you had only an hour to read the amendments before they were published. Of course, they are draft amendments at the moment; they have not been voted on.

Joe FitzPatrick asked a specific question about COSLA amendments, which I did not hear answered. Has COSLA drafted amendments for stage 2?

Eddie Follan

No, we have not done so at this stage but, if we remain in the situation that we are in and are looking to influence the bill from the outside, we would consider drafting amendments.

It is important to explain this. We have had a very collegiate and constructive year of discussion as we have moved along. As I have said before, a lot of compromise, negotiation and hard work went in from officers and officials on both sides—not just from COSLA, but local government officers and a wide range of Scottish Government officials.

There was genuine disappointment. We asked to see the draft amendments as we went along, because we knew that what was in the policy might not translate exactly to what the legal amendment might be. We wanted to see the amendments so that, if there were issues with them, we could sort them out or say, “That doesnae work so well for us. What can we do here?” We would then go through a process. However, we never got there—we never saw the amendments. We had an hour in a room with the amendments, but they are complicated, and we would need more time than that.

So, if things remain as is, we can expect to see COSLA amendments.

Eddie Follan

Yes.

What sort of discussion did COSLA have with the Scottish Government, or what notice did it give, that it was going to withdraw its support?

Councillor Kelly

The first indication that we might possibly withdraw came in February this year, when leaders made it clear that there had not been progress in the three areas that we had discussed, and which we had been talking about extensively for a long period. There had not been significant progress. The impression was that we were perhaps not being listened to around those key areas.

Throughout the year, we were very clear with the Scottish Government—with the cabinet secretary and ministers—about what leaders were thinking at every stage. There was probably an update on the national care service at every single meeting of COSLA leaders, and we were able to articulate views back, including when we got closer to the decision that leaders took to withdraw, indicating that that was a possibility. We were very clear with the Government that that could happen.

The Convener

That was in February initially, but significant amendments to the National Care Service (Scotland) Bill were published in response to that over the summer, which is essentially why the committee is sitting here rescrutinising the proposals.

Councillor Kelly, you mentioned that service users direct us at local level—you said how important service users’ input is into providing services. What discussions has COSLA had with stakeholder groups about the withdrawal of support from the NCS bill, either before or since?

Councillor Kelly

We have a variety of discussions with various stakeholders, who will approach us in different ways regarding the NCS and what is happening with it.

I am talking specifically about the decision to withdraw support.

Councillor Kelly

The decision to withdraw support came only pretty recently, and we are committed to having dialogue with stakeholders and others around our decision to withdraw support.

So, there was not any beforehand, and there has not been any since, specifically. That is what I am trying to establish.

Councillor Kelly

We had discussion with stakeholders and others on the position as it was regarding the national care service. Leaders took the decision to withdraw only relatively recently. Following that decision and other discussions, we will be back talking to stakeholders. COSLA is continually talking to stakeholders at every stage of the way. They can often be vital partners for delivering social care, and we want to ensure that their views are articulated through the national care service process and in all the other things that we are involved with in considering reform to the system right now.

So, you did not have discussions before, and you have not had them since, specifically on that issue.

Councillor Kelly

We have spoken about the national care service with stakeholders—

No, I am talking about the withdrawal of support.

Councillor Kelly

The withdrawal was a COSLA leaders’ position. We could not talk to stakeholders about withdrawing, as it is up to leaders to decide about that. After—the decision having only just recently happened—we would absolutely be talking to stakeholders.

The Convener

Another issue that you have spoken about—among lots of issues that you have spoken about—is that there has been a lot of consensus between the Scottish Government and COSLA, with a lot of support for lots of parts of the bill as drafted. What will it take to get COSLA back round the table?

Councillor Kelly

I have been very clear that we have withdrawn from the bill in its current position, and it is now over to the Scottish Government. Our position and concerns are very clear, we have articulated them for over a year and we have made significant compromise. The areas of concern are very significant, however. It was not particularly easy or helpful for us to get no notice of the draft amendments and to be unable to have a proper discussion. We have clearly articulated our position and it is now for the Scottish Government to take that forward.

You may have been very clear with the Government, but your position is not clear to me. What will it take for COSLA to get back round the table?

Eddie Follan

We have significant concerns about the national board not setting a strategic direction. At the moment, the shared accountability agreement sits completely with Scottish ministers, who make the decisions and have the power to direct. There are issues with the fact that ministers can move council services from the “may be delegated” category to “must be delegated”. The issue of children’s services is also fundamental for local authorities and we have spoken about the issue of direct funding, which is still outstanding.

Are those the issues?

Eddie Follan

Those are the big issues.

Those issues have been on the table for quite some time.

Eddie Follan

We have not had a resolution to them. The cabinet secretary wrote to Councillor Kelly the day before he wrote to council leaders. There was some movement in a couple of areas, but the fundamental issues were not resolved and it was clear that the Government is intent on carrying on in the same direction.

Emma Harper has a supplementary question.

Emma Harper

I will pick up on the reference to having one hour to see the draft amendments. What were the circumstances? In its written submission SOLACE, says that it

“recognises that there are specific areas that would benefit from a national approach”.

Those include

“Leadership and driving improvement ... Standards, assurance, performance, reporting and scrutiny ... Workforce planning, fair work and training ... Ethical commissioning ... Complex and specialist care commissioning ... Improvement and innovation including improving research”,

and more. There is loads that you can agree on. The fact that COSLA has walked away is so significant that I am wondering about those one-hour circumstances. How is it possible that you had just one hour to look at amendments?

Councillor Kelly

Louise Long can talk about the SOLACE submission but, in our discussions with the Scottish Government throughout the process, we asked for more advance notice of the draft amendments so that we could have a dialogue about what those would look like before they were published. That did not happen and we had only one hour’s notice to look at those draft amendments. So there is a lot of—

Was that one hour before making a decision about whether to give your support?

Councillor Kelly

It was one hour before the amendments were lodged.

Eddie Follan

The amendments were lodged in June. Two things happened. The first was a meeting at COSLA, in which we got to look at the amendments but had no time to analyse them or to understand their implications. We saw the amendments an hour before they were lodged, so the bottom line is that we never really had the opportunity to understand what was in those amendments, despite having had almost a year of discussion. We had asked all the way along the line to see the amendments, but we never saw them.

Did you want to see the amendments in order to make a decision about supporting them?

Eddie Follan

We wanted to work on the amendments to ensure that they reflected the policy discussions that we had been having.

Emma Harper

I am finding it really difficult to understand that you had one hour to look at amendments but then had June, July, August and September before you walked away. We have marked-up pages of amendments, with lots of additions in blue and strikethroughs in red. I am trying to understand why that one hour is so significant when no decisions were made about the amendments.

Councillor Kelly

If you have been negotiating in good faith for a year and trying hard to establish a national care service that we all want to see, and if you are told throughout that process that you will see draft amendments and that you are a key partner in delivering social care, it is not helpful to see those amendments only an hour before they are published.

As we have articulated, we went from having three areas of concern to having an additional seven. They are not minor concerns; they are serious and significant, as we have explained in our evidence. We have shown that they will have a significant impact on the service delivery and service users. It is a pretty significant issue.

The Convener

For the record, the amendments have not yet been lodged. They are proposed amendments. I say that to keep us all correct.

I thank the witnesses for their evidence. We will suspend briefly to allow for a changeover of witnesses.

10:00 Meeting suspended.  

10:05 On resuming—  

The Convener

We continue our scrutiny of the Scottish Government’s proposed stage 2 amendments to the National Care Service (Scotland) Bill with a second panel of witnesses. I welcome to the committee Rachel Cackett, chief executive officer, Coalition of Care and Support Providers in Scotland; Rob Gowans, policy and public affairs manager, Health and Social Care Alliance Scotland; and Karen Hedge, deputy chief executive, Scottish Care.

We will move straight to questions.

Good morning. My initial question is, what are your thoughts on the proposed amendments to the bill?

Rachel Cackett (Coalition of Care and Support Providers in Scotland)

It is hard to know. I was sitting at the back listening to the evidence from COSLA earlier this morning. We have a bill that is sitting as an amended bill—although amendments have not been lodged—which we did not ask for and which we had no part in amending, along with a shared accountability agreement that was not part of what we were looking for. We now have the removal of shared accountability, which we also had no part in. We are left with a set of amendments whose status feels quite uncertain.

It is quite hard to know how to work with an amended version of a bill, which, at the moment, is not amended because the amendments have not been formally lodged. The amendments that are currently sitting in the paper that was shared in June with a lot of red and blue pen all over it, which Emma Harper mentioned, are a significant departure from the original bill.

We have remained committed to working to ensure that this reform, which we wanted when Feeley was published, delivers for the not-for-profit providers of social care that I represent and, most important, for the people whom they support in communities every day. We still have quite significant concerns about the amended bill, but we are certainly up for working on that.

My issue at the moment is that I do not know what to talk about amending. I am not sure of the status of the bill or whether the joint accountability arrangement will be back on the table if COSLA returns to negotiations.

I will finish by saying that it seems ironic that many of us are saying that we feel that the bill does not go far enough, and we have a discussion between COSLA and the Government in which it seems like the move to keep the status quo is the deciding factor. That feels very far from what we think the potential of a national care service bill could be.

Rob Gowans (Health and Social Care Alliance Scotland)

We continue to support the principle of a national care service, which is an opportunity to improve people’s experiences of social care if it is done correctly and in a rights-based, person-centred way. We were clear throughout that the bill as introduced did not fully meet that and would need substantial amendment at stage 2. I do not think that the Scottish Government’s proposed amendments fully deliver on that, so further amendments are needed. In our response to the call for views, we identified something like 30 different areas where we believe the bill could and should be amended.

As long as there is a bill, we are committed to working to make it as good as it possibly can be, both because it will have a significant impact on our members and because there is potential for improvement.

Although there are some things that can be done now, we have been clear for some time that the social care system needs substantial reform and the status quo will probably not address that.

Karen Hedge (Scottish Care)

I agree with those who have already spoken that, as it stands, the bill does not meet the full intentions of the independent review of adult social care by Derek Feeley. The principles of the national care service do not necessarily require a bill to make changes and improvements to the system. What is left, however, is clearly about where power would sit, and that is open to question, but I guess that there is at least evidence that people are passionate that something needs to change. That is what I would take away.

The removal of ethical commissioning from the bill and the retention of the paragraph on reserved procurement are a significant concern to our members, because of the implications for the sustainability of the sector and, therefore, their ability to continue delivering care and support to people.

What is the impact of COSLA walking away? Has that caused damage?

Rachel Cackett

Council leaders need to make the decisions that they need to make for the constituents whom they represent. We have had a year in which national and local government have negotiated an agreement in which those of us who are meant to be equal partners in social care, if we believe the winter plan, have had very little influence.

To be honest, as a civic leader in the sector, I feel quite angry about the past year. We have a system in which, at the end of last winter, more than 80 per cent of providers in my membership were delivering a public service under public contract at a deficit. We have people who are struggling to keep services going and we have 6,000 people waiting for a social care assessment and more than 3,000 not getting the care that they are assessed as needing. We should remember that with criteria as high as they are, that is the tip of the iceberg of what we are dealing with every day.

It feels a little bit as though we have had a year of negotiation that has come to naught, although we should wait to see whether that negotiation reopens. We need to sort the fact that the system is actually burning now, and we have spent too much time waiting for this change to be negotiated separately. Keeping the status quo going with little changes at the edges will not deliver the fundamental reform that Feeley suggested.

On whether the bill has potential, the one advantage of it is that there might now be a space for those of us who have been sitting waiting to have these conversations to get involved in shaping something that might get us closer to Feeley than either the original or the amended draft of the bill has proposed. This might be the one opportunity that we have, but we cannot keep waiting. We need to do both, not one or the other, and not just codify the status quo, which does not work for people.

Karen Hedge

The implications of COSLA leaving underline specifically how the national care service has been developed in a bit of a vacuum. A lot of people with expertise across what is a living system have not had the opportunity to contribute effectively. What we therefore have is two statutory bodies and health coming together to have conversations in a room, alone, and that is far from what the national care service’s ethos should be and how it should be developed.

We know that negotiating with people works better when there is a diverse mix of individuals representing the different parts of the system. If we had been having those conversations with representation from across the whole system, we might well be in a different position. However, when negotiating is reduced to two individual partners, it highlights the power play in that space.

Sandesh Gulhane

I declare an interest as a practising NHS GP.

It is not just COSLA that has pulled out; all the unions have done the same. I have been looking at the submissions, and no one is in full agreement that the bill as written is the way that it should be going. Certainly, that is true of the panel.

Karen Hedge spoke quite powerfully about the bill being about where the power sits. First, where does the power sit in the bill? Secondly, do we need the NCS in order to make the reforms that you have all said are needed, or could we make those reforms now, given that we have spent £28 million on the NCS so far?

10:15  

Karen Hedge

In response to your first question about where the power sits, the ethos of the independent review of adult social care was that the power needs to sit with the people who are accessing care and that the support needs to sit with the citizens of Scotland, but the bill has been reduced to being a power play between COSLA and the Government, which is not serving the needs of our people. We need to move forward from that and get back to the original principles and ethos. Apologies—could you remind me of your second question?

Sandesh Gulhane

We have spent £28 million on the proposed national care service so far. Do we need a national care service in order to drive the reforms that you have all said that we need, given that there is a significant deficit, which Rachel Cackett spoke about?

Karen Hedge

The £28 million that has been spent is the equivalent of a million hours of care at home and housing support that could have been delivered; perhaps that tells us what we need to be shifting the focus to. There is significant unmet need in those areas, and that money is the equivalent of a significant amount of provision that could have been delivered.

I have said this in rooms such as this one before, but we have some really good legislation and policy in Scotland, but we fail in the implementation. To date, the bill and the work on the national care service has not looked at how we create the conditions for change and what we need to do to look at the system in a different way. What can we take out of the system to make it work more effectively, instead of piling more and more on to it? That is what is causing it to break and, frankly, that is where there is duplication and increased expenditure as a result. We need to get back to thinking about how we support our social care workforce and how we can pay them, as people who are professionally qualified and professionally registered, a wage that is acceptable, rather than the £12 an hour that they are currently paid. It requires paying people who deliver the services—the providers—effectively.

In your opinion, will the national care service help people in care homes who are receiving care?

Karen Hedge

With the removal of Anne’s law, which put a significant focus on people living in care homes, the implication of the national care service for people who are living in care homes has yet to be determined, particularly with the removal of ethical commissioning. At the moment, the Government pays care homes £5 per person per hour for each person who lives there, which is nowhere near enough to deliver the complex care and support that is required. The bill as it is currently drafted does not help that.

We have some really good examples of other work that is happening in parts of the country where people have come together, such as in Dumfries and Galloway—Emma Harper’s part of the world, I think—where specific work was done on collaborative commissioning. Representatives from different parts of the system came together to have an honest, open conversation about what was needed and were able to share information about people in a way that was ethically sound but meant that those people could move freely through the system. That work reduced the number of people who were stuck in hospitals by 28 per cent and got them into care homes where they needed to be living in their own space. The bill will not change whether people can come together locally to have conversations.

Tess White

One of the issues raised at First Minister’s questions last week was the disparity of care among all the different areas of Scotland. There is an argument that we need a national care service in order to standardise care, accepting that there is no streamlined funding. In your opinion, how do we get standardised, high-quality care?

Karen Hedge

I do not think that we need a once-for-Scotland approach; I think that we need to provide whatever each individual needs. That will be very different between social care and health, for instance. Each individual person has different wishes, different needs and different requirements. However, what we need is equity across Scotland. My concern is that the call for a once-for-Scotland approach represents a shift away from equity, which we see, in particular, with the removal of the human rights bill, towards an approach that involves thinking about how we build a system that puts more regulation on services to deliver. When we already have in play excellent health and social care standards that are used to regulate services, how do we create the conditions to bring about equity? That is the problem. Without the streamlined funding that will enable that, I do not think that the approach that is proposed will do that.

Tess White

I have a question for Rachel Cackett. You spoke about the position that 80 per cent of your members are in. I am thinking of the role of the voluntary sector in the provision of care homes. The elastic band is already stretched too far. You said that the system is burning now. In your opinion, how will a national care service help your members, especially those members who are struggling now, to run care homes?

Rachel Cackett

I go back to the twin-track approach. The national care service, in and of itself, will not deal with the here and now. It is clearly some way down the line. We need quick action now to deal with the current situation.

I was interested to hear one of your previous witnesses say that ethical commissioning is much more expensive. Ethical commissioning is perhaps expensive because it reflects the true cost of care. That goes back to the point that was made. Either we make a contract, through our social care service, with the people of Scotland to meet the needs that they have, and we are honest about some of the costs that are involved in that, or we end up with a non-ethical commissioning process that tries to drive down the price for those such as my members in the not-for-profit sector, who are trying to deliver care—whether that is care in a care home, care at home, a mental health service or any other type of service—in order to make sure that people can live their best possible lives and are able to engage with their community and have their rights met.

I go back to the point that we could do more ethical commissioning now. Maybe ethical commissioning is a bit like the Leveson inquiry for the social care sector: while it is optional, it is often not happening. An interesting question for me is whether a national care service could lever some of the things that, by choice, are not happening now. Could it take away some of the risk aversion from those who are responsible for procuring? How could the bill—it currently does not do this—allow us to have an honest conversation about the quantum of funding that is available for social care and how that can be made to flow through the system as efficiently as possible and with the least amount of waste, so that the decisions that are made at the front line mean that people’s care needs can be met? That goes back to the committee’s report on self-directed support.

If we could have got the bill right, we could have done that. Maybe we can still get it right. In the meantime, we cannot wait. In the meantime, there are things that could be done that are not being done to think creatively about how to ensure that we buy in the care that people need in a fair and equitable way. That would mean that we would not be in a situation in which, as was the case the last time we took a temperature check on this, we are somewhere between 17 and 20 per cent adrift of the pay that local government pays its staff. Local government pays its staff a great deal more than those it contracts from third sector providers. I do not like the “third sector” label, because it almost makes it sound as though that is okay to do, because we are on the third rung. We are not. We are joint partners. A third of social care in this country is delivered by the voluntary sector. Either we are seen as joint partners or we embed inequity in communities by paying a workforce that consists mostly of women less than it would get in the public sector.

Therefore, there are things that we can do now. We can genuinely start to embed fair work, and we can get ourselves a timetable for getting to a position of equity. In addition, with the bill, there is the potential to have a national care board of the kind that Feeley suggested, which is a board of everyone with a stake—in other words, not a joint accountability agreement, but a genuine joint board that is able to drive innovation, improvement and ideas for standards. At the moment, what is codified in the bill is a board that will have a small number of members and a system that sounds much more punitive than even the Government is looking for at this stage.

Some things that we could do are for the future—in the bill, if we can get it right. We have to do other things now. We have to deal with the issue of equity—between those who contract themselves in the public sector and everybody else. That is why I think that the joint accountability agreement, in and of itself, is flawed.

Tess White

Are you saying, as COSLA did, that you are not being listened to? You have come up with so many ideas; it feels strange to me that it is so late in the day. Is it the case that you have come up with those ideas and have just not been listened to? If you put forward suggestions and ideas, would you expect them to be listened to?

Rachel Cackett

I would hope so. To go back to 22 December—those of you who were on the committee at that time may remember this—we produced a document suggesting areas in the original bill that we thought could be strengthened. Everything then went very silent for some time, while—it turned out—the joint accountability agreement was negotiated in the background. To be honest, that has been the real game in town.

Although we were major proponents of an expert legislative advisory group—because we always thought that it was odd that there was no formal bill group, if you like, as there had been for every other bill in which I have been involved in 20 years of working with this Parliament—that did not really give us the space to go in with ideas. It was very much a case of, “Here’s a proposal. What do you think? You’ve got a day—or two days—to respond.”

Karen Hedge’s point about ethical commissioning is fundamental and could make a real change to the members of my organisation. Papers from the expert legislative advisory group led us to think that the bill was going to be much more radical than it is. In fact, it does not feel like a radical move.

We have lots of ideas. I will be honest: we will meet officials from the Government on Thursday to share some of those ideas. There has been one potentially good thing over the past week—which, you will appreciate, we are trying to get our heads around, as you are. It has been only just over a week since support was withdrawn. There may be more space for us to be listened to. If that happens, it will be great. We have ideas, as many of our partners in the sector will have. People are full of ideas. We know what needs to change.

David Torrance

Good morning, everyone. My questions are on the accountability and functions of the national care service board. What do you understand to be the board’s purpose? To what extent could it or should it contribute to fundamental reform of the social care landscape?

Rachel Cackett

The board should and could do exactly what I just suggested. A national care board would be unlike a national social work agency, whose focus would be on social work, which involves an important but tiny part of the overall workforce market that we need.

We know what our demographic looks like, yet we have no strategy to deal with that. If the national care board genuinely drove a strategy for the future of our social care workforce that covered how we grow our talent and how we support and sufficiently train enough people to go in and meet the sorts of needs that we have been talking about in chambers such as this for 20 years; if, in ethical commissioning, it set clear standards for what was expected and monitored the situation; if it worked with Audit Scotland, the Care Inspectorate and others to give us a clear overview; and if it was given the powers to drive the sorts of change that we think we need, it would be a very different national care board from the one that is in the bill.

The board should certainly not be a triumvirate that involves the public sector providers in a shared accountability agreement. It should provide the drive for, and oversight of, all of us—not just not-for-profit providers. Obviously, I am here to represent my members, but the board should apply to everybody who has a genuine stake in making a national care service work for the public of Scotland.

Rob Gowans

We support the creation of a national care service board, but there is a lot about it that I would change. First, we are particularly concerned by the proposal that the third sector would not be represented on the board’s membership. It is not entirely clear why that is proposed.

I fully support and welcome the inclusion in the board, with voting rights, of people who have lived experience. That is a big step forward from the current set-up of IJBs. However, the third sector should be represented as a major provider. That would point towards having everybody round the table with an equal voice, as Rachel Cackett described.

10:30  

Much of what is proposed for the board’s role and functions relates to a focus on oversight of local boards. Although scrutiny is important, there is an element of marking the local boards’ homework. There are gaps, such as things that could be done on national consistency, improvement support, monitoring progress, setting national standards, monitoring needs and supporting the sharing of learning, good practice and ideas across the country. We want the national board’s role to be amended to reflect that and to allow it to go some way towards addressing some of the issues that exist—such as the “unwarranted local variation” that Feeley described—so that it can drive up the quality of social care across the country.

Karen Hedge

I completely agree with everything that both the previous speakers said. The board should also have a role in raising the sector’s profile and sharing good practice. To make it work, real learning needs to be gained from the report on the review of progress with integration and, of course, the associated Audit Scotland report on integration.

I cannot speak to the matter without saying that the bill talks about the “provider” of social care but does not specify what it means by the word “provider”. It could mean local authority provision, but local authorities represent only 23 per cent of provision. The wider spectrum of provision needs to be represented in the bill and, as 87 per cent of that is my membership, I hope for greater clarification.

David Torrance

Rachel Cackett touched on my next question. How should the breadth of stakeholder views be represented on a national care board to ensure that it remains responsive to everyone who is affected by board decisions, including service users and providers?

Rachel Cackett

The first thing is to get the board’s functions right, because then you can get the right people around the table. For us as providers of social care—two of us on this panel of witnesses represent providers outside the public sector—a priority is ensuring that the providers’ voice is represented, so that the entire system can be designed in a way that allows funding to flow and decisions to be made without unintended consequences. The problem at the moment is that too many decisions have unintended consequences, because there is a lack of understanding of how the system works.

People compare the NCS to the NHS, but we are talking about different things. Not only is the model different—I hope that we would ensure that a national care service used a social, not medical, model—but there is a difference that takes us back to the SDS report and what Public Health Scotland published a couple of months ago about people’s experience of care. Few people know that they have a choice. Few people have really taken forward the fact that choice and control should be at the heart of people’s experience of social care in the way that was meant to be the case with SDS. A multiplicity of providers is needed to achieve that. People need to be able to make choices—otherwise, we are paying lip service to that approach. That means that social care will always look different, which needs to be reflected in the sorts of boards that you have and the way in which a national board works.

The bill is missing any sense of how ministers come up with their strategy or how they fund it. It would be great if the national care board could take the existing data and research, particularly on unmet need, and reflect that to ministers when decisions are being made on the allocation of tight resource, which is often the biggest political choice facing the Parliament. That, too, is a really important function for the national care board and, unless providers such as mine are around the table, the issues that they face in the contracting situation that they are in, which I have described, will get lost.

Karen Hedge

I want to say something about the necessity to extend self-directed support to those who live in care homes. It does not seem right that the legislation does not cover everyone living in Scotland. In fact, that seems discriminatory.

I have no further questions.

Carol Mochan

I have a question about the social work adviser and the social work agency. I know that the issue has been touched on and that we have had submissions about it but, for the record, will you tell us how you think that should play out? What advice would you give us about scrutinising such an idea?

Rachel Cackett

As I said in our submission, I point out that, as far as setting up a social work agency is concerned, we already have a chief social work adviser sitting in the Government. I guess that the relationship involving the social work agency, the social work adviser and the national care board is a moot point, because I do not think that the bill makes that clear.

As I have said, our social work colleagues are best placed to describe whether the agency as set out will do what is needed for their profession. What concerns me deeply is this: where is the leadership voice for everybody else? There are 50,000 workers employed in social care in the third sector. Where is their voice in this? Where is the workforce strategy going to sit? Who will advise the national care board or ministers—or some joint accountability arrangement that none of us is quite sure about at the moment—on what is needed for that workforce? Believe me—I am not suggesting that we should retrofit that into a national social work agency. Clearly, the discussions in that respect have been about social work, and those involved very much have their own needs to deal with. If the national care board does not have the role that I described, and if there is no social care adviser, my fear is that the imbalance that we already have in social care—for example, in the way in which contracting works—will continue in how the workforce is valued and developed.

Whatever happens to a national social work agency—I am not the best person to say what that should be, apart from saying that there should be clarity with the national care board—we must have such a leadership space for the whole social care workforce. Too often, it is undervalued and forgotten, and that cannot happen in a national care service.

That was a helpful addition to your submission. Does Rob Gowans want to come in?

Rob Gowans

This is one of the few areas of the NCS proposals that we have not really taken a view on. I think that colleagues in social work are best placed to comment on how the proposals will affect them, and we do not have a great deal to add.

Karen Hedge

My response is similar. In our submission, we, too, called for either a social care adviser or a professional social care officer, for exactly the reasons that Rachel Cackett has set out.

I also point out the feminist dynamic in all of this, given the largely female workforce. There is a real requirement to raise in a more formal way the profile of people who work in the social care sector, because we know that the current approach is not working. Very few members of the workforce are members of unions or have other routes to getting their voice heard.

However, the issue is not just about the workforce but about knowledge and understanding of the complexity of how the social care sector operates and the landscape that it is in. The fact that we have no one with that expertise at the table is partly why bitty bills and bitty legislation are being developed. It is therefore great to be here today and have an opportunity to speak.

That was helpful. Thank you very much.

Ruth Maguire

Good morning. I have a couple of questions to hear your reflections on the charter of rights. First, what reassurance does the draft charter provide that people who use care and support services will be fully supported to lead the independent lives that they are entitled to lead?

Rachel Cackett

It is tricky, as we said in our submission. Making clear to the Scottish public what rights they have in relation to social care seems a good thing to do. Having everything in a one-stop shop, where people can be assured of what is expected, also seems like a good thing to do.

I go back to what we said when the original bill was published—that this is a charter of no rights that conveys no new rights. A human rights bill is no longer expected, and I very much doubt that one will come forward before the next election.

Given the situation that we are in, it is good to see a draft charter. We can see the intent, but it has been written before we know quite where the bill is. Again, that makes the situation really difficult. I look at two sets of principles—one in the original bill and one in the proposed amended bill—that look very different. The amended bill would remove all the principles from the Public Bodies (Joint Working) (Scotland) Act 2014 and transfer at least some of them into the bill.

There has to be a really clear line of sight between the principles that are being described, which should drive every decision and action of a national care service, and what goes into the charter. Of course, until we have that in place, it is really hard to see how that translates across.

Having some indication is helpful, and you can have a charter and have ministers writing a strategy about the national care service but, if you cannot follow through because the investment is historically too low and does not improve, there is no ability to deliver the rights. That goes back to the implementation gap. I appreciate the financial situation that we are in, but social care has historically been underfunded and is always desperately trying to catch up. Often, the rights that are set out can be enacted only when funding enables that.

My concern remains that, under the bill, the risk is held by front-line practitioners and organisations and, ultimately, people who access care and support, who might fail to have their rights realised, simply because the bill does not force through the issue of increasing investment in a sector that has historically been way too short of cash.

Before I come back to the complaints aspect, I will put the previous question to Rob Gowans.

Rob Gowans

Quite a lot of the charter is welcome. Some bits of it are placeholders at the moment and, without the bill, some bits need to be filled in.

We welcome the creation of the charter in helping to explain people’s rights to them in an accessible way. Inclusive communication and accessible formats are important for that, but it is also crucial to get the complaints system right and to signpost clearly to people what they can do if their rights, as described in the charter, are not being met, and how that can be put right.

It is hugely important that there is independent advocacy, support and advice. There needs to be a system of complaints and redress, as well as independent advocacy to support that.

I ask Karen Hedge to what extent the draft charter makes clear the rights that people have, versus what they can expect from the national care service.

Karen Hedge

The charter is an amalgamation of principles and rights in one space, which I guess offers some clarity. It is good to see information included in it, because that is not being called out to the same extent in other areas, but the reality is that, if the landscape in which the charter is implemented is not changed, the charter will not make a difference to people who access care and support.

I give the example of fair work principles. We have a fair work charter, which was put into some contractual arrangements. I would go so far as to say that the charter of rights should be put into contractual arrangements. However, contractual arrangements are currently not reciprocal or balanced and do not follow through. We have seen the removal of fair work principles from contracts in some areas because, without a fair commissioning process, the commissioning and procurement bodies know that they cannot afford or fund the implementation of the principles. In effect, the principles will be just words if we do not make the changes.

I am working with the University of Birmingham and the University of Stirling on a piece of work that is funded by UK Research and Innovation and the Health Foundation on improving adult care together, which is specifically looking at what needs to happen on the front line so that we can make this stuff work in reality. That points to the idea, which the Fraser of Allander Institute mentioned in its submission, that the currently quite limited view of the national care service board could be extended to consider research in the social care sector.

10:45  

Is there enough clarity in the bill on how a complaints process might work for service users and on which bodies would be accountable for what decisions?

Rachel Cackett

The proposed charter is meant to make rights clear, which you would hope that a thriving social care system could then enact. If things go wrong or people are unhappy, those rights need to be really clear. Given that I still cannot map in my head how the national care board links to organisations such as the Care Inspectorate, the Scottish Social Services Council, Scotland Excel and others, whatever provisions are put in the bill must make the process simple.

Very often, complaints can be dealt with most effectively and quickly at the point at which things are perhaps not working as they should. We need to avoid losing the ability to deal with redress quickly and at the point at which the issue is happening, while ensuring that people can escalate a complaint if they need to. The previous witnesses spoke about what is already in place, which is quite a lot. Simplification is fine, but we need much more clarity on exactly how the process will work.

Rob Gowans

The inclusion of the section on complaints is really important, but the provisions do not give a great deal of detail. Some of that could be fleshed out in secondary legislation. One thing that we have suggested is that the bill could be amended to include redress routes.

As has been described, the current complaints system is messy and covers a lot of different things, whether that be appeals against decisions, somebody feeling that they have been discriminated against or surface queries. There is an opportunity to look at whether the process can be streamlined, simplified and made easier for people. It is also about people having the independent advocacy and support that they need to make complaints and have things put right.

Karen Hedge

The complaints that land on my desk are those that fall in between places. For instance, when an individual chooses to live in a care home that is not in their local authority area, who funds that? Ordinarily, the care home would manage that for a time while the statutory bodies had a wee fight about whose responsibility it was, but now we are finding that the fight is taking up to two years, by which time the care home is struggling to have the cash flow to pay their staff. That increasingly happens.

There are other examples. At the National Care Forum yesterday, there was discussion about access to a piece of equipment for an individual, which is something that the complaints and redress process does not currently cover. The national care board could do that—there could be some responsibility about what happens in the spaces in between and how we take the matter forward and offer clarity—but the process as it stands does not.

It is helpful for us to have a bit of colour when it comes to people’s experience. Are you able to expand on the complaint that you were talking about on access to equipment?

Karen Hedge

That is another common complaint. During the pandemic, the Scottish Government rewrote what was formerly called the equipment protocol. It did not undertake a proper consultation process and rewrote the protocol without provider or COSLA engagement. The responsibility to pay shifted from the NHS to care providers, which are not funded to do that.

What sort of equipment are you talking about? Who would that impact?

Karen Hedge

The equipment includes specialist chairs and beds, things that prevent pressure sores and things that enable people to walk and to move. The funding is not flowing through the system, and the implications for people are huge—it affects their ability to live life with dignity. Some people are suffering physical consequences as a result of the situation. The example that was given at the forum yesterday was of someone getting pressure sores because of the lack of equipment.

Those are the sorts of things that have fallen into the gaps. They are not being dealt with and they are being passed round and round. That is what the complaints and redress system needs to work on. Other than that, it is very much about local intervention and how we make that right.

Thank you. That is helpful.

Paul Sweeney

I thank the witnesses for their answers so far. On commissioning, tendering and procurement, significant concerns have been expressed in written correspondence with the committee in relation to ethical commissioning. Do you believe that ethical commissioning should be referred to and defined in the bill, and, if so, why?

Rachel Cackett

I had a long discussion about that with my members yesterday. We have been considering the response that was given to the question that you raised on that issue in September, and we have been struggling to understand what the response means, and, in particular, what the words “ethical considerations” mean. I do not even know what an ethical consideration is.

We were really disappointed to see that every reference to ethical commissioning and procurement had been lost from the bill. We still cannot really understand why that has happened, given that that is a key facet of what the Feeley review called for. Services that are funded without price-based competition seems like a fundamental shift that we should be aiming for with the national care service.

How to define ethical commissioning is an interesting question, because the original bill, which is still on the table, talks about applying the principles. Some of the principles themselves have moved—many of them have now changed. We are trying to work out whether the application of principles might still be a way forward when thinking about how ethical commissioning could be delivered.

Somebody mentioned fair work earlier. The change to the fair work principle leaves us with significant consternation, because it puts the fair work principle on the employers, although, as colleagues have said, it is still not clear which employers are in the national care service and which are not.

However, if that were to include contracted employers and that principle were to apply, even though we know that fair work in social care is not being delivered through contracts, that puts the responsibility in entirely the wrong place. The national care service should, through all its work, be responsible for delivering fair work, with equity across the system.

In relation to talking to Government and other parties about amendments, we are giving consideration to whether it would be possible to look again at the principles and whether some of what was in the original bill on applying the principles could be reinserted.

However, it would then also come down to the procurement provisions in the bill, which, as I said earlier, do not go far enough. We are not sure how they would work, particularly with regard to the “power of reservation”. We have a different view to that of our colleagues at Scottish Care. The arrangements for five-year contracts and the three-year rule are not workable. We are not sure how that would work in a local authority area where many big providers will have multiple contracts.

Our understanding is that the Scottish Government has rejected a similar provision. We have provided some alternative ideas to the Government. We are talking to it about those on Thursday, to work through whether the procurement provisions that are in the primary legislation could be significantly strengthened in order to support ethical commissioning in practice.

We could tie ourselves in knots trying to come up with a perfect articulation of ethical commissioning, or we could have a bill that puts in place the levers that we think are required, and we could think about how the principles could better reflect what ethical commissioning should be from the point of view of the people at the front line who need support and those who are delivering it.

Will you elaborate on how you would like the bill to be strengthened in that regard?

Rachel Cackett

We believe that a number of things could be done. The way that the bill is structured means that ministers would come up with a strategy and a national care board would come up with a plan, and then—almost through a process of osmosis—something would run through the system down to local care boards. We think that that arrangement should be improved and that the strategy needs to be stronger. As I said earlier, it must be informed by need and should take into account the quantum of funding that is available.

Regulations that have been introduced in England might give us an interesting route to think about whether we create a specific procurement landscape for social care, because it is not about buying widgets. Current procurement legislation is not applied in a way that separates procurement in the care sector from everything else that a council procures, whether that is school meals or anything else, but, actually, care is quite a specific sector.

Today, we will publish work by Anne Hendry and Stephen Gibb, who have been looking at whether current commissioning and procurement arrangements are working and have found that they are not. Part of that involves the gap between IJBs commissioning and local government procuring, as the translation of what is required is not always helpful. We have therefore started to explore whether the bill could make the procurement strategies the responsibilities of IJBs, so that commissioning and procurement could be in one place. That would also mean that you are looking at local government as part of a provider market—I do not like the word, but I cannot think of a better one—for all those who are providing social care. Rather than a council holding the purse strings and paying for things, an IJB would have a say in how money is distributed among a sustainable group of providers in the local economy.

We think that a range of things could be done. We hoped that more would be said about the cap on the light-touch regime, but that is not included. We also think that the wording on the changes to the regulations on the reservations of contracts needs to be changed because I cannot see how, in practice, a provider with multiple contracts would be able to operate. It is not clear whether the reservations in terms of the five-year contracts and the three-year rule apply across the whole of Scotland in relation to Scotland-wide providers.

Do the other witnesses share that assessment?

Rob Gowans

Others will have more to say than we do on procurement specifically, but I can say that we were also concerned that the references to ethical commissioning were removed from the bill, and we would be keen to see them put back in.

One of our concerns about the bill as introduced is that it was missing a definition of ethical commissioning. We thought that it was important to have a single definition in there for clarity and to give it a legal basis. Our concern is that not having such a definition could lead to it not happening in practice, because people would have different definitions of ethical commissioning. We would like the references to ethical commissioning and a definition of that put back into the bill at stage 2.

Karen Hedge

I am clear that the bill has to include ethical commissioning and ethical procurement. That we are only picking up work around ethical procurement as part of the national care service work now is significantly concerning because, in the past year, 83.9 per cent of care home closures have been in the independent sector—26 care homes have closed, and 19 of those were in the voluntary sector. It is just not working out there. In 2022-23, on average, 47 care packages were handed back per local authority area in Scotland. Frankly, that is down to poor commissioning and contractual arrangements in those local authority areas that prevent providers from passing on good terms and conditions to their employees and ensuring that there is fair work for them.

I would have huge concerns about the lack of focus in the bill on ethical commissioning, but what I really want is for it to be extended to include ethical commissioning and ethical procurement.

11:00  

The bill also needs to consider not only how statutory bodies commission self-directed support but how we support and enable people to use SDS. I was listening to other people who gave evidence speak about a failed market. We do not have a failed market; we have a fake market in social care in Scotland. It is not a market—there is one main purchaser of social care and support, although that is starting to change as we see the eligibility criteria increase.

We really need to think about how we can shift and change that. Some of that is down to the collaborative commissioning arrangements that are happening in some of the examples that I gave earlier. For instance, Midlothian Council worked with some of our providers, and one of the key issues that came through related to our care-at-home staff and the amount of time that they spend between visits. They were not getting paid the full amount, or they would have a couple of hours downtime when they did not have any work to do. The issue was how they could work together to maximise response, and what we have seen happen in the Fife collaborative is now happening in Midlothian, too.

Providers also worked with the council to be able to offer block contracts to staff. That hugely increased staff retention—by 66 per cent—and it also reduced costs to the health and social care partnership, because the council was not spending money on overtime for agency workers providing cover.

The lack of inclusion of ethical commissioning removes the focus on and the ability to do that piece of work—to make those changes—and to share that in the way that could be done through the national care board.

On the continued inclusion of reserved procurement, I suggest that that is in contravention of the Social Care (Self-directed Support) (Scotland) Act 2013 because it removes choice from the system. I recommend that that is taken out of the bill.

Paul Sweeney

To what extent do you think that the bill’s provisions and the proposed amendments from the Government offer a more level playing field in tendering for providers? Do you see that aim being progressed with the amendments?

Karen Hedge

No, I guess—given the tumbleweed that is rolling across.

Paul Sweeney

Yes, I figured that that was the case.

Ms Cackett, Age Scotland said that the current proposals to have led to a market that the independent sector dominates because not-for-profit care providers are unable to compete effectively. Do you share that view?

Rachel Cackett

We have providers that are struggling to deliver the services that they currently need to deliver in their local communities. We need to make that a lot easier to do, and the money has to flow.

On the issue of procurement, procurement is just the end point of a commissioning cycle; it does not have to be formal procurement under regulations. There are also options for things like direct awards, which we do not talk about anything like enough.

There is an important place for not-for-profit providers in being able to use public funds to reinvest in their workforce and in their community, and to ensure that that funding exists and stays in the community. If there is anything that we can do to make that easier and fairer in relation to the differential between local government terms and conditions for the contracting of its own services—it is not just about pay, but about other uplifts—and the work of organisations such as those in my membership, we must find a way to do it. I do not think that the bill gets us there, but we are up for working to strengthen it.

In general, are there any other changes to the bill that could help to facilitate more innovative and collaborative commissioning?

Karen Hedge

That is a good question. If it is okay to let me have a think, I will respond in writing.

That is fine. Are there any immediate views on that?

Rachel Cackett

As I said, we have provided the Government with some examples from down south that could give us some helpful models. However, if we are to have a national care service that goes down from ministers and back up again—in fact, I think that it should be the other way round, from the front line up to ministers and then back down again—we need to ensure that the full commissioning and procurement cycle is in place.

One issue with national procurement that we have not touched on is the role of Scotland Excel and the way in which a national care board could commission national services. I know that the minister has talked about complex care in that respect, which I assume relates to issues such as those in the “Coming Home” report. I heard the previous panel talking about Scotland Excel; given that its governance structure is set entirely within local government, we think that there is a real conflict of interest if it directs national procurement for a national care board under its current governance arrangements.

At the moment, we are doing a lot of work with Scotland Excel to try to improve the way in which it and providers work together, but we still have significant concerns. One concern is the care and support framework, which, because it was negotiated very late, has resulted in a negotiating position that will mean costs going to our members that are lower than we would have liked, largely because local councils refused higher uplifts. There will be no backdating of non-workforce cost uplifts for the first six months of the year, even though the framework was late in coming, and we are hearing more about councils—or, to be more accurate, HSCPs—withdrawing from it, because they cannot afford it.

At the moment, we have a situation in which, eve