Agenda item 3 is witness expenses in relation to the Social Care (Self-directed Support) (Scotland) Bill. Do members agree to delegate to me, as convener, the responsibility for arranging for the Scottish Parliamentary Corporate Body to pay, under rule 12.4.3, any expenses of witnesses who attend to give evidence on the bill?
We come to agenda item 4. As members know, we went on a fact-finding visit to Glasgow yesterday to hear from carers and service users. It would be useful to put on the record some of the themes that arose and our impressions of those meetings with people at the council and from the community. It is important that those are reflected at this stage so that there is parity between those we spoke to yesterday and witnesses who come along to the committee. Do any members wish to give their reflections on the visit?
It is always good to get out. It was a worthwhile day during which we concentrated on the issue with people from across the sector, including those who are involved in delivering care and those who receive it. It was a good day. The hospitality and the way that we were treated were also good. We should do more such visits, because the committee and our work benefit from them. I am sure that the visit will be reflected in our report.
I absolutely agree with that. It was an excellent day. It was good to be face to face with users, carers and various other people who will be directly affected by the proposed legislation. Clearly, there is unanimous support for the principle of the proposals, although many of the details will have to be gone through as the bill proceeds through Parliament. I look forward to getting the report from the people who took notes yesterday.
It might be helpful to reflect on some of the themes that we heard. I will not give my opinion, as we are still testing a lot of the evidence.
I was very impressed with the set-up that we saw in Glasgow city chambers yesterday. I was impressed with the officials who were allowed to come along and give us their views on SDS. We also had an excellent meeting with the carers in the afternoon and got a good insight into what they require from the bill. One of the main themes that I will carry on is the suggestion that, from a social work point of view, there should be more training for carers to ensure that they know their full rights, in order that the bill can be implemented correctly and that it will benefit the people who require it.
I agree with much of what has been said and do not want to add anything in particular, although I will slightly elaborate Richard Lyle’s point. A clear challenge is presented to professionals who have been used to working in a particular way. We might want to follow that up with representatives from social work departments. It was made clear to us by the service users, the carers and the social workers themselves that the bill will require a different way of working, which will present short-term challenges. The aspiration is that the policy should be cost neutral in the long term. However, in the short term, there will be a big impact on how the current service can be continued. Professionals will need to think about reorientating their caseloads and how they can provide information to people and support them through the choices that they will be able to make as a result of the change.
Thanks very much for that. It was a long day and involved some hard work, but the clear message came across that there is widespread support for the principles of the bill. If I heard “The devil’s in the detail” once yesterday, I heard it half a dozen times. Our job will be to explore some of that.
Good morning. I declare that I know Duncan Mackay very well, as I previously served with him in North Lanarkshire Council. I am interested in his comments, as I note that North Lanarkshire Council has just over 30 people on SDS, whereas we heard in evidence last week that Scottish Borders Council has more than 200.
I will kick off, but I am sure that Ruth Stark will want to give her perspective. First, I will pick up on your comment about the numbers of people who are on self-directed support. The current statistics measure the numbers of people who have direct payments, which are only one way of drawing down self-directed support.
Does anyone else want to respond?
Yes, if I may. Richard Lyle asked about the training of social work staff. One of the complications relates to understanding the role of social work staff in the process of self-directed support. The Scottish Government published the practice governance framework, which set out social workers’ rules and tasks. One of the issues for the social worker—taking that particular post out of all the others in the range of social work services—is that they have a responsibility to carry out the duty of protecting from harm vulnerable people in our communities. The relationship between a social worker and a person using the services is quite complex. On the one hand, the social worker is trying to meet need, which is what everybody wants out of self-directed support, but on the other hand the social worker has a responsibility to protect people.
We heard from social workers yesterday—and, indeed, read in some of the submissions—that the bill is an opportunity to get back to good, old-fashioned social work.
We really want to embrace the bill and work with it. However, you used the phrase “The devil is in the detail”, and we do not see enough detail in it to help us with some of the tasks that other legislation places on us to protect people. That is part of the problem with which we struggle in relation to the bill.
I dealt with social work for 36 years. In those 36 years, I had to visit the social work department only about seven times. I appreciate the work that social workers do. However, yesterday, carers made the point to us that they want to be able to sit down with a social worker, go through everything that they require, feel that the social worker understands what is required and know themselves what is required. That comes down to training.
I hesitate to say. Not enough training has been built in. It will be much more costly than has been indicated in the papers that I have seen so far.
The Association of Directors of Social Work struggled—as did most councils and, perhaps, partner agencies—to provide information to inform the financial memorandum because saying how much will be required to implement the bill is, to some extent, informed guesswork. It depends heavily on the situation in any given local authority.
I will respond to Richard Lyle’s original question.
The principle of the bill is to improve the outcomes for service users. Do you think that bringing health and social care together will deliver a more holistic care service for people?
We have developed a principles paper on the integration agenda. One of the key points that we raised in it was that the success of any integration must be measured by how well the agencies work together towards the core, common aim of what they are trying to establish. They are trying to avoid duplication of effort, ensure that we work smarter and enable people to access services far more quickly. It is important to involve people. There is a duty to involve, inform and collaborate. The necessary infrastructure has to be there in order to deliver that. At the moment, the bill does not have the necessary level of detail to enable us to take an informed position on that issue.
The committee is exploring an interesting area here. On the finance implications, there is already a gap between assessed need and available resources. Because of the projected local government and NHS settlements and so on, that gap will grow over the next few years, regardless of whether self-directed support is in place.
The example of the young man is interesting. We heard several examples from service users whom we met yesterday who are in absolutely no doubt that the outcome for them has been that their lives are much better. That has to be the aim of the legislation, if it is to work. SDS is a tool to give people the better life that they seek.
The proposed change fits with our codes of ethics and with the principles by which we want to work. I do not detect resistance to it, but I detect that people are concerned about how we do it, which is what is causing debate in the profession. How will we achieve the aim? There is no problem at all with the principle.
I agree with Ruth Stark that the concerns are about how we do it. Some individuals who have given evidence to the committee have claimed that some professionals, especially nurses, are risk averse in their approach to the concept. I will paint the picture: risk assessment is the norm for many community nurses day in, day out because they work in a non-clinical environment, in responding to health needs. They try to create a safe environment for patients in their homes, and they try to apply all the necessary care, attention and technological advances and inputs. They do that virtually—not in a hospital setting, but in the patient’s home. Day in and day out, community nurses have to make hard judgment calls that involve risk assessing patients and considering the responsibilities for care and bringing in the appropriate people. Those nurses cannot do their job without collaborating with their general practitioner and other primary care colleagues, social work colleagues and wider healthcare teams.
In written evidence, the RCN and social workers have highlighted the importance of the integration of social care. I think that you agree on that point. The ADSW submission states:
I think that there is agreement. The point is that the bill does not reflect that; it imposes duties only on local authorities and not on the NHS, and it refers only to local authority budgets. I take pride in the fact that the concept of self-directed support was initially developed in North Lanarkshire. However, the bill dilutes the concept. It was never intended that there would be only a local authority budget; indeed, it was never intended that there would be only local authority and health budgets, but that it would be possible to draw on education moneys where appropriate, or on the benefits that people are awarded, for example, for needs that are associated directly with their disability. The concept has been reduced from the original aspiration. It would be a great shame if that were to remain the case throughout scrutiny of the bill.
We are concerned that as the integration agenda proceeds, more and more individuals could seek SDS and direct payments, but there will be a finite budget for that. If many people go for that option, what will be left for those who do not apply for those packages and who are reliant on core services? The funding could have run out.
Does that get back to the written evidence from the Association of Directors of Social Work, which suggests that
The term “social care” almost implies that people are always dependent and passive recipients of care, whereas in fact the principle of self-directed support is that it builds on people’s gifts, strengths, capacity and knowledge, and on networks in their communities. Of course, people sometimes have significant needs that have to be met, often through high levels of allocated resources.
I thoroughly endorse what has been said about removing “Social Care” from the bill’s title. Self-directed support is much more about people being in charge of their own lives, and the social care aspect masks the involvement of education and health budgets in helping to support people in their journeys through life.
The bill’s wording does not stress the responsibility that comes with the choices that people must make around self-directed support. That goes back to the point that Duncan Mackay and Ruth Stark made about the bill empowering people to take control of their own packages.
Fiona McLeod has indicated that her questions have been responded to, but she will have an opportunity to come back in, if she wishes to do so.
One or two things do not quite stack up for me. Perhaps that is due to my lack of understanding, but I will ask about them. First, I should say that I have taken on board the point—which was well made—about training needs in social work and the NHS where there is an interface and there is integration. I am sure that we will return to that.
That is a very fair point. The danger is that, when the bill has been enacted and there is a natural desire to know how effective it has been, it will be easier to count sums of money, numbers of people or hours of support, so those things will get counted, whereas it should be, as you quite rightly say, about outcomes for people. The challenge in measuring outcomes is that everyone’s outcomes and the ways in which people’s needs are met are unique to them. In our own lives we sometimes choose to meet our needs with a formal service, but very often we will use not a formal service but our own networks, knowledge and so on.
That is helpful. I hope that you do not think that I am concentrating my questions on everything that you said, Mr Mackay, but I would appreciate a response to a second comment.
That was entirely our point as well. The bill is set up to look at social care and social care needs. The scope creep that we mentioned in relation to the delegation provisions in section 18 could start to track out towards health. The RCN thinks that it is important to get the bill right first, then later to have further consultation on possible impacts on other organisations and agencies.
My final question will be on scope creep. However, Mr Mackay may want to respond to my previous comment.
From the perspective of ADSW, there is no reason why the bill should not incorporate access to health budgets. In the context of the parallel legislation, I do not see how it can operate without doing so because of the aspiration to lose the original identity of the budget, whether it is a social work or health budget.
On the ground, the practitioners who are struggling to get their heads round the integrated health and social care agenda and the bill would like to see some joining together of the vision of where we are going. We therefore urge the committee to think about extending the scope of the bill beyond the social care budget.
That is interesting.
If, as in the Highlands, the local authority were to delegate to the health board responsibility for providing social care for older people and adults, the board would, under the legislation, have to assume all the duties. In that respect, the NHS is akin to the local authority in assessing needs and so on.
I thank committee members for their patience. I seek a little more clarity about what will change with the introduction of self-directed support. If, without the bill, an NHS-based lead individual can, under current good practice and collaborative working, already be delegated to access pooled budgets or whatever, I simply do not understand what will be so different about giving individuals on the ground more choice. At the moment, the lead person, who might be in the NHS, can turn round and say, “All you can have from the local authority is A, B or C”; however, with the bill, they could say, “You can have A, B or C but do you think option D”—in other words, self-directed support—“would be more appropriate?” Where does the scope creep come in? The only change I see with the bill is that it will give more freedom to the individual on the ground. I am not trying to create disagreement. I just genuinely do not see where you are coming from.
The bill will give more freedom but does not indicate where the budget for supporting the SDS package will come from. With such packages, the health board will be responsible for providing the social care that the local authority used to provide, but if it turns out that a lot of people are using up that budget and that further health needs must be met, health resources will have to come into play. Integration is a brand new policy—it came in only on 1 April—and organisations are working together to find out how it is working. Besides giving the ability to fudge budgets, the approach will lead to scope creep because health moneys will be used to pay to meet identified social care needs alone. The pooling of resources leads to the blurring of boundaries.
There might be genuine and honest disagreement here, because I think that what you are saying goes completely against the integration agenda. The RCN regularly says that we should use social care resources for preventative health spend.
Integration might be a new policy in the context of proposed legislation, but we can all remember the joint future agenda in the 1990s. Many of us were working on how to produce a suite of integrated services and approaches. The phrase “scope creep” is perhaps a bit unfortunate, because it sounds quite negative. When people have health and social care needs, it seems entirely coherent that there should be access to budgets from both areas.
I am looking for clarification from Mr Mackay. When you were talking about the work that you already do, it seemed to me that your approach is wider than is envisaged in the bill. Are you suggesting that the bill will prevent you from taking such an approach, or did I pick you up wrongly?
I was trying to convey the sense that it was never the intention that an individual budget would be drawn solely from a local authority social work service or from the local authority itself, and that if we are to realise the potential that self-directed support offers people in exercising choice and control in their lives—especially people who have complex health and social care needs—to the full benefit of the individual, the only feasible way of doing that is by giving people access to funding from both parties.
You are not suggesting that what you currently do will be restricted.
No. Self-directed support is one element of a wider approach to personalisation. There will be many people who do not have needs that meet the eligibility criteria that a partnership applies, but who require access to highly personalised approaches to meet their needs. Their support might not necessarily be in the form of an individual budget.
Thank you for shedding a wee bit of light on the situation.
Does not self-directed support offer an opportunity to save NHS resources? People in Glasgow yesterday and a good written submission from Glasgow City Council gave examples of people who receive social care. One individual faced spending the rest of his life in hospital unless significant additional social care resources could be found to commission support in the community.
That is absolutely what it is about. However, the bill gives no clarity on what constitutes a “relevant amount”, that is,
That is a helpful clarification. Notwithstanding your concern about cost cutting, does the RCN accept that, at the moment, people are being offered services almost—if not quite—on a take-it-or-leave-it basis? Mr Mackay suggested that, by purchasing services for an individual, we are able to ensure that they receive genuinely personalised services instead of being told that they can receive a service only at a certain time of the day. That is, ultimately, where we should be going with this. At the moment, a lot of the core services—as you describe them—that would be threatened by SDS if we removed personal budgets from the money that is available for them spend a lot of that resource on overheads rather than on providing a service to people. Before a service is provided to a person, money must be spent on transport or the upkeep of a building if it is a day service that is being provided. Do you understand that point?
The NHS is already providing core health services. Within that, there will be various complex health packages for people with palliative care needs and things like that, which will take an incredible amount of input from a number of different agencies. That is the best way of working. We want to assure whoever is in receipt of any service, be it a social care service or a health service, that they are getting a good-quality service from the resources that are available and that the people who are delivering the service are skilled and know exactly what they are doing.
This has been an interesting discussion. There is a contradiction in what we are trying achieve through the integration of health and social care. I think that Mr Mackay described a situation in which the social work budget was purchasing health services.
Yes.
I thought that that was a great, succinct example. We had discussions yesterday with service users who support self-directed support in principle. They were concerned that health service or clinical involvement was separate, but your example was a good one. That local authority’s social care budget is being used to provide health services, but there is something not right about that—you would think that it is important how the budgets are shared.
There is something not right about that only if the converse cannot apply and the bill’s provisions do not impose the same duty on both partners.
I fully support what has been said, but there is also an issue with the overall health budget. Many people who will access SDS have to deal with chronic health conditions and other issues while living in the community. One issue for the health service is how to shift some resources from acute services into supporting people with chronic health conditions in the community. I believe that the health service has to provide its fair share of funding for that. That does not detract from the fact that, as I think all three witnesses are saying, there must be transparent resource allocation and it must be clear where the resource comes from. The burden of it needs to be spread between the major suppliers of education, health and social care services.
Finally, I do not know whether we have had an announcement this morning, but we have had an insight that the proposed legislation on the integration of health and social care might have been kicked into the long grass and may not be necessary because partnership working can achieve that, so we do not need legislation. Would it not be good news if we could avoid that legislation and integration could happen naturally?
That is a big question and another committee might be considering that. However, it is a legitimate question because, if we are outcome focused, which is the focus of this bill, it is perhaps questionable whether legislation on integration would drive those outcomes or have the perverse consequence of diminishing the likelihood of them being realised. That is perhaps a matter for another discussion.
This is about culture change as much as it is about legislative change; it is about how the public service providers work together. I suggest that you need to put as much investment into culture change as you put into the legislative agenda.
I will come on to questions for all the panel members about workforce issues that might arise from the changes but, first, I want to ask a question of principle about the suggestion that there should be an appeals procedure in relation to the needs assessment that is made and the allocation of resources. Among the things that have been said to us is that having such an appeals procedure would involve a huge cost. When Mr Mackay answers this question, I ask him to take off his hat as a director of a social work department. From the point of view of directors of social work and social work professionals, do you believe that, in principle, we should consider having an appeals procedure?
There is an appeals mechanism—social work has to have a statutory complaints procedure. The Association of Directors of Social Work would strongly suggest that that procedure should be used, rather than creating a separate appeals mechanism. As Ruth Stark said, the issue is one of culture change. If we are serious, we want to embed self-directed support as normal, everyday practice. It would not be especially helpful to create a separate appeals process when there is already a statutory process.
I think that there is a difference between a complaints procedure and an appeals procedure, but that was a very clear answer.
It is absolutely the case that we need to have some checks and balances on who the personal assistants might be. Some of the worst situations that I have had to deal with as a social worker have been cases in which there has been abuse in a very intimate care setting, whether by parents, carers or support assistants. We must have proper checks and balances in our system because, in some cases, we work with extremely vulnerable people.
It is a complex question, which challenges what we intend to achieve through the bill.
Obviously, regulation exists to protect the public, and it is very important for any individuals who are in the position to employ personal assistants that there is proper scrutiny. We need to ensure that they can be assured of the qualifications, training and competence of those individuals to deliver the package of care and that they have had a protection of vulnerable groups check. We did not see anything in the bill that drew our attention to that, so we wondered whether it would be possible for either the national health service or local authorities to insist on PVG records and undertake regulatory work. If they are employing anybody, they could ensure that those checks and balances are in place. Scrutiny is important.
I would like to add a point that I omitted to make in answering the question. My understanding is that, under the protection of vulnerable groups legislation, an individual cannot access a check on a would-be employee. What that means in practice for the implementation of self-directed support is that, in my area, for example, we would link the person to the Scottish Personal Assistant Employers Network—SPAEN—which is one of the bodies that are empowered to undertake an advanced disclosure check, and strongly recommend that that be done.
I suppose that that has the potential to be a loophole that could be exploited, and we certainly do not want that for somebody who is employing a personal assistant. They might not have access to that.
I want to ask a general question; perhaps the answer to it will be no, so it will be brief. I refer to what was said earlier, particularly from the social work side, about the bill’s scope and the desire to see people in education, the health service and housing to some extent involved. We have had a bit of a discussion about that. Leaving aside the budgets from which the money will come, do you think that the four elements of self-directed support are sufficient?
Yes, provided that the bill makes it explicit that the identification of an individual budget applies, whether or not the person ultimately chooses to draw down a direct payment. That is part of the consideration of how people exercise meaningful choice and control if they do not know what the budget is. If I were cynical, I could say, “Well, there are so many thousands of people living in care homes. Every one of them can get a letter that says that the value of their care home placement is £20,000 and something and asks whether they want to take that in the form of a direct payment.” Thousands of people would then be offered an individual budget. It is clear that that is not the intention of the bill. The view of the Association of Directors of Social Work is that the bill would be strengthened if it clarified the point that an indicative individual budget exists and should be required to be shared with the person, regardless of how they ultimately choose to draw it down and even if they ultimately choose to exercise no direct control over it.
I want to move on to advocacy on behalf of those who apply for self-directed support and helping them to make their choice. Drew Smith asked about an appeals mechanism. We may want advocacy for the person at that time. I noticed that both the ADSW and the RCN referred to the need for people to be supported in the self-directed support process, but that is not explicit in the bill. Do you think that it is important or necessary that the bill should explicitly say that there should be a role for advocacy in that situation? Would you appreciate that?
We would welcome any forms of support that helped with the decision-making process for individuals who apply for SDS options.
It is fair to say that the ADSW would be content with a statement that people should have access to advocacy, because some people will need that. There is a risk that the people who most lack capacity will be the least likely to access individual budgets, because they will be determined to be unable to exercise meaningful control over a budget, so other legislation will apply. That could compromise the principle of minimum intervention that we apply generally under legislation on adults with incapacity or on mental health. However, it is clear and appropriate that some people will need access to advocacy, which should be part of the overall provision.
Is the bill clear enough about advocacy? It talks about “reasonable steps” to provide support and so on. Do we need to be more explicit?
Flexibility probably means recognising that people have different levels of competence in their approach. I think that that covers the issue.
Perhaps the bill could refer to “reasonable steps such as access to advocacy” or something of that nature.
I will raise an issue that is in the ADSW’s submission and which is worth airing—we aired it a bit yesterday. The ADSW calls for a debate on state provision as against family provision. What would be the nature of that debate? Should it take place alongside the bill’s progress?
The association recognises that most support is provided by unpaid carers. In many ways, sustaining people at home rests heavily on that. Carers should obviously have access to support, including support under the bill, when appropriate. Currently, there are exemptions on making payments, such as an exemption when a carer lives in the same household as the person who receives care. Local authorities have a limited discretion to exercise.
Did the steering group discuss the eligibility issue that you highlighted earlier and—to take the most positive view—the tremendous expectations that have been excited in people about the potential of this approach?
As the only person on the steering group giving evidence this morning, I should point out that the ADSW repeatedly expressed the view that, if the bill did not recognise eligibility in some way, it might be interpreted that anyone could access an individual budget. Clearly, resources would not permit that and, given the low level of need in many cases, that would not be the most appropriate way of meeting those needs. Of course, that pertains to children as well as to adults, which is why the association’s submission mentions section 22 of the Children (Scotland) Act 1995 and its reference to the
Do calculations of that kind bring us back to those questions of state versus family provision, eligibility and income?
A great advantage—and indeed a challenge—that we have not discussed and which, I think, was raised in the RCN submission relates to the chargeable nature of social care services, the non-chargeable nature of healthcare services and how all of that applies in the world of integrated budgets. One of the beauties of self-directed support is that the budget can be calculated on a basis that does not require a charge to be drawn down, which means that, if you calculate your resource allocation system in a certain way, you can remove all the bureaucracy of charging and enforcing charges. Alternatively, you could set a higher individual budget, but you would have to reclaim that money through a charging policy. If the self-directed support budget were to be used for residential or nursing care, nearly all of it would have to be reclaimed because of the financial regulations that local authorities operate under.
With regard to family carers, I have to say that Mr Mackay’s response has puzzled me. At this point, I should declare that, until last December, I was primary caregiver to a family member.
You make a fair point. Those statements appear contradictory, but I refer you to my oral answer to the previous question. The exemptions are there for good reason but, given the context and challenges that we face, it is reasonable and appropriate to allow some discretion in navigating around them in certain circumstances.
What are the good reasons for the exemptions?
If carers were paid, the social work budget would be obliterated overnight.
I am not talking about carers being paid. I am talking about the right of the individual under self-directed support to employ a personal assistant who happens to be a family member.
That has the same effect of the local authority budget being used to pay for a family carer.
You are saying that, under self-directed support, the local authority will exercise control over the employment of personal assistants.
I am saying that the employment of personal assistants has some exemptions relating to carers that are there for good reason and that if, as a society, we moved to a position whereby a significantly higher proportion of carers were paid to carry out their caring responsibilities, then that would require a debate beyond the scope of the bill about the role of carers and how they are supported and about the role of the state in the provision of care and support.
Perhaps a parallel discussion has already taken place with regard to children being looked after by kinship carers and perhaps some of the lessons to be learned from that experience could inform this debate.
I have a question for the Association of Directors of Social Work. How ready are providers, particularly in the voluntary and private sectors, to deliver services in the flexible way that might be demanded if individuals seek those services?
Just as local authorities will be in 32 different states of readiness, so providers will be in different states of readiness. Our experience of working with 18 providers over the course of implementing self-directed support has been that some have changed their financial systems, tackled their cultural issues and become flexible and dynamic in their practice; whereas others have struggled to make the transition and are perhaps wedded to existing ways of doing things and will ultimately find it more difficult to meet the expectations that people will have through the allocation of individual budgets.
So, as you said in your previous answer, the bill will lead to more efficiencies and economies in the provision sector.
One of the great weapons in social work’s armoury is that there are many ways in which to meet a need. If we always resort to expensive formal services or the default ways of meeting the need, we will always incur costs that will mean that we will restrict access to fewer and fewer people. Self-directed support offers an opportunity for people to be much more engaged in how their needs can be met and to apply their own, often very imaginative solutions to that. At the same time it will release resources that can be used for reinvestment or, indeed, to contribute to the savings agenda.
People do not have to take services that they do not need. There is sometimes inflexibility in the current system in that regard.
Mr Mackay referred to 18 providers in his local authority area. When assessment has been done and outcomes have been agreed, the main provider may be the local authority and one of its employees may determine or give advice on what provider may deliver the best outcome. Professionally, they would hope to be completely neutral, but is there a possibility for conflict of interest? If so, how could it be negated?
The bill addresses any risk that people might be corralled and sent down one course of action or another by setting out the options that must be presented to the person, and facilitating access to expert support that is independent of the local authority. The most significant determinant of what people choose is the point at which the discussions take place. If they take place when people are in crisis, the opportunity to explore an individual budget is likely to be much less attractive to the individual. If good preventative work is done and intervention takes place at the appropriate stages, discussion becomes meaningful and there is no bias about how their needs can be met.
If the bill succeeds, would it be worth doing post-implementation scrutiny across local authorities to see what the mix of provision becomes? Some local authorities are doing more valid and real working and being more proactive with third-sector and voluntary sector organisations to get a mix of potential products out there. We are more likely to see a cascading of services for carers going to those organisations. Would it be worth following the audit trail on that to see how one local authority compares to others?
It would be worth doing that, but it is important to remember that the majority percentage of services is externally commissioned now, particularly in community care, although perhaps less so in children’s services. It would be interesting to monitor the implementation.
We heard mention of the term individual accountable budget—I forget the precise term you used.
Indicative.
One of the traditional forms of care provision is the day centre for older people or for people who have learning difficulties. It might be an old building and staffed by people who are—I would hope—on reasonable pay and conditions. The building might be difficult to heat and, as a business model, that set up would be inefficient, so the indicative cost of sending someone there might be quite high. However, what would have to be applied through an individual indicative budget to disaggregate that service would, I imagine, have to be proportionally less than what it would cost to send someone there, so that an amount of core provision could remain with the service provider and we would not get to a tipping point. How do we weave our way through those kinds of issues?
Earlier I made the point about traditional services needing to redesign themselves, if they have not done so already, so that they are flexible enough to meet need in ways that improve a person’s outcomes. From direct experience of that, I know that it is sometimes necessary to allow some short-term, intensive services, such as those that have an assessment or re-ablement function, to operate outwith the framework of individual budgets. That can be used as a way of determining future levels of need that might then, because of that intervention, reduce the level of need, so that people do not need a lot of support thereafter, or determine the correct level of need that can be met in the individual budget. All those factors have to be taken into account in calculating resource allocation.
We got some feedback about that yesterday. Earlier you mentioned the transfer of costs to individual budgets, and people have told us about the 25 per cent cuts in their budgets. They were aware of the global budget that was previously applied to an individual’s family and care, but when they took the self-directed support option in the pilot, they saw a deduction of 25 per cent in their budget. In those cases, that perception has poisoned the process from there on in. Those people do not see self-directed support as empowering or an opportunity; they see it in the context of a financial cut.
I do not wish to dominate the evidence session, although I suppose that I have the advantage over some witnesses in that I have direct experience of operating self-directed support. In North Lanarkshire, we chose to do it in a very different way from the approach in Glasgow. I mentioned the first 150 people who now have fully implemented individual budgets. They were all new presentations of need, so they did not have an existing set of arrangements that we then had to reduce or potentially reduce.
Every Government brings in a new policy or bill. To return to comments that Fiona McLeod and Ruth Stark made, we all know how the 32 councils have 32 ways of dealing with kinship care. Some have implemented it and some have not—I have fought with Duncan Mackay on the issue. How can we ensure that we do not have a postcode lottery under the bill, that everyone is treated equally and that the 32 councils implement the bill?
We need open and transparent scrutiny of the resource allocation to ensure that people throughout the country receive similar services. We must take into account the difficulties of providing services in, say, the Western Isles compared to the difficulties in the Borders or Glasgow, which will all have different cost implications. Therefore, we will need a complex system to ensure that we have an equitable service. Such a service might cost different amounts in different parts of the country.
I am tempted to say that policy eventually catches up with best practice, but I will not. I am sure that that question will helpfully be directed at the care inspectorate—Social Care and Social Work Improvement Scotland—when it gives evidence in the next panel. It is a reasonable aspiration of Government—people can legitimately expect the same standards, support and service in all local authority areas. Some of the discussions on the bill steering group have examined whether there should be a national resource allocation system. The reason why that is not possible is that authority A might choose to allocate much more to social work than authority B, so the amount in the pot that can be distributed through individual budgets might be different.
As there are no more questions, I express the committee’s thanks to the witnesses for giving us their time and for their evidence. Thank you very much indeed.
I welcome our second panel of witnesses. From Social Care and Social Work Improvement Scotland—the care inspectorate—we have David Cumming, the director of operations, programming, co-operation and registration, and Professor Frank Clark, chair of the board of the care inspectorate. Sandra McDonald is the public guardian. George Kappler is deputy chief executive of the Mental Welfare Commission for Scotland. Adrian Ward is convener of the mental health and disability committee of the Law Society of Scotland.
My opening question is a general one, although we will come on to discuss capacity, which I know is of particular interest to the panel. Do you welcome the bill? Is it taking us in the right direction?
Thank you for giving us the opportunity to present evidence. The care inspectorate is supportive of the bill and the principles in it, but we do not see it in splendid isolation. We regard the bill very much as a logical step on the way to the integration of health and social care.
I welcome the basic principle of empowerment. We expressed a range of concerns about the draft bill and we are impressed by the extent to which our concerns were taken on board before the bill was introduced. We still have some concerns, which is why I am here, but much of what we and others said has been listened to and acted on, which we welcome.
The public guardian’s office feels likewise. We welcome the general tenor of the bill. We had specific concerns about people with incapacity, which have largely been listened to.
The commission is of the same mind. We certainly welcome the bill’s objectives and support the principles, but we have concerns about how capacity will be dealt with.
The Mental Welfare Commission’s submission set out issues to do with capacity. Please feel free to talk about your concerns.
A major concern is to do with the point at which assisting someone in making choices and in having their care delivered moves into making substitute decisions on their behalf. There can be a fine line in that regard. Capacity is not an easy thing to establish—we cannot take a blood level of it—but it can be enhanced. All of us, in isolation, would not be able to make certain decisions, especially complex financial decisions, that we could make if we had the appropriate help and support.
Does anyone else want to say anything? I would be happy to hear any solutions that people might propose.
Our concern related to the confusions that might be created by the use of the term “assisted decision making” alongside language that is very much the kind of language that is used in relation to adults with incapacity. We do not know whether practitioners might feel that they can assist those who truly lack capacity to make a decision, which would go beyond assisted decision making and towards substitute decision making. The policy memorandum makes it clear that that is not intended to be the case, but it is not clear in the bill.
You will appreciate that the formation of the care inspectorate last April brought together various previous workstreams. In our previous experience of carrying out social work inspections across the 32 councils, we have realised—primarily through the reading of files and records and trying to form a view about how sensitively they reflect the work of the frontline practitioners—that discussions of capacity issues and sensitive areas by practitioners is of key importance. We have seen some good practice, but we have also seen some examples of a perfunctory approach being taken. If frontline staff tend to be anxious to get to the end point of an assessment, it can be difficult to convey to the service user that there is time to make a considered decision and that there is some understanding of their position, including how much capacity they have to understand the choices that are available to them.
I used the word, “empowerment”. A balance to empowerment is protection.
I will make a more general point in response to Gil Paterson, who asked, “So what can we do about this?” You have heard about some of the technical issues, but we need to set the issue in a broader context.
In cases where capacity is under question, we heard yesterday that, under the full guardianship arrangements, people are having to use the legal process and present before a sheriff. Would you concede that the process does not need to be as formal as that? Should there be something less formal to enable people to access self-directed support?
At present, only the two extremes exist. If the person has lost capacity or lacks capacity and they have not previously granted a power of attorney to somebody so that they can make the decisions, then, if they require self-directed support, the guardianship process is the solution. That would involve both financial and welfare guardianship, because both limbs would be required—one to administer the money and one to commission the services.
Is there general agreement that something should be done? In some cases, things are not planned. Perhaps someone has a stroke or someone goes into hospital. People are anxious to push this on—not just social workers or local government employees, but family members. People who are closest to those who need support are anxious to make appropriate arrangements as soon as possible. What is the solution? If there is a general acceptance that an interim measure can be sorted out and there is willingness to work towards meeting people’s needs, why is it taking so long?
For a person to have someone else managing their support probably puts that person in a dominant position in most areas of their life. It is not a minor matter. It is not like managing one bank account. It is a pretty major role with all sorts of consequences and it determines the quality of the person’s life. The question could then be whether the procedures and protections that the Parliament put in place at its outset for people with incapacity should be available to people who will potentially have somebody else exercising such a major role in their lives?
You pose a scenario that the appropriate person would be someone other than the person who was appointed guardian through a legal process. In the vast majority of cases, it would be the same person, would it not? The appropriate person would be the spouse, partner, son or daughter.
Yes, but if you have a guardian with appropriate powers, your problem is solved. To pick up George Kappler’s point, if somebody has limited or deteriorating capacity, they can follow the much simpler procedure of appointing an attorney competently. You can be capable of appointing an attorney—you know what you want them to do but you are not capable of doing all the detailed things that that attorney is going to have to do. Those two routes are available.
We have considerable sympathy with families who feel that they have to take out guardianship just for self-directed support. What is harder to tease out are the gradations. How many of those people would have been able to appoint a power of attorney?
I have a short question for the Law Society, although anyone is free to answer.
Because of the confusion that Sandra McDonald and I referred to, the language of incapacity is leading us towards assistance. The first divide should be an assessment of capacity. Does the particular service user have the capacity to decide for themselves, either with or without assistance, or do they not have the capacity to make some or all of the decisions? It would be very helpful if that was in the bill, because at the moment what is in the bill creates doubt and confusion.
There has to be some reference to capacity in the bill. To pick up a point that was made by one of our colleagues, assisted decision making is perfectly legitimate, but there is no reference to when assisted decision making may stop if the person then loses capacity. In such a case, the person who is assisting would become the substitute decision maker unless there was a clear differentiation between the capacity levels.
Sections 5(3) and 5(4)(a) and (b) talk about the local authority taking “reasonable steps” to provide assistance. Would it help us in this situation if it was explicit that advocacy services had to be available to support people?
There is no doubt that advocacy has a role to play. I am not sure whether it is necessary to put it in the bill—I am open to debating that—but advocates definitely have a role. The problem is that advocacy is a bit overstretched in many areas. Some attention would have to be paid to the funding of advocacy services if they are to be formally extended. There is a danger in not formally extending those services, because they are underresourced at the moment. Some attention would have to be paid to ensuring that the resources are there to make the provision of the service realistic.
I am thoughtful about the whole issue of advocacy for a variety of reasons. It must be proportionate to the assessed needs of the individual and it is always difficult to get that fit. We must not lose sight of the fact that we are talking about independent advocacy as opposed to the advocacy that every doctor, nurse and social care practitioner should, as of right, provide on behalf of their patient, client or whatever. Independent advocacy should be provided as well as, and not instead of, that advocacy that must be in place.
A key factor in all this is the interaction between the social care professional and the person who is seeking and using the service. At the heart of that, there must be a strong element of trust and confidence that the eventual decisions are properly person centred and not foisted on the individual. I use the word “foisted” just to accentuate that point.
May I respond, too, on advocacy? First, I declare an interest, in that I was responsible for establishing an advocacy service. I am totally in favour of such services.
The care inspectorate referred to the professionalism of social workers, healthcare workers and everybody who supports a person. I understand that. However, we heard at last week’s meeting that, particularly for social work departments, there will be a balancing act; they will support users and commission care for them, and they will also be providers of care. That is another reason why there should be an independent voice to speak for the user who cannot make their opinions understood.
I would agree with what you said, with that last qualification for the individual who has been demonstrated as needing such a service and who can benefit from it. However, historically, we have seen local authorities acting in the capacity of the provider of services and having a multiplicity of roles in that regard, and doing that quite satisfactorily. They do it, for example, with care homes, so there should be no reason why they should not be able to translate that into responding to this particular area.
On personal assistants and the regulation thereof, it was interesting that the care inspectorate talked about the regulation of care assistants when they are employed by agencies. However, increasingly we will see that individuals may employ their personal assistants directly. Should we consider moving personal assistants who are not employed through an agency into the framework that you are currently using? There is a date by which all personal assistants have to be trained or qualified to a certain level—I cannot remember when it is.
The issue goes almost to the heart of the bill and the detail in that regard. Personal assistants could represent a significant call on SDS and will not always be independent; in future, people could well employ family members.
When the care inspectorate examines the arrangements that local authorities put in place, we will expect there to be an early reviewing mechanism. That is important. I am not saying that we expect a situation to get worse before it can be improved, but local authorities have an on-going duty of care. The care inspectorate expects there to be an active mechanism for review if someone says, “This isn’t really working for me. The outcomes aren’t being achieved and I want to have another think about it.” We will want to see evidence of how local authorities put into practice their reviewing arrangements.
Because of the nature of the work that the Mental Welfare Commission is involved in, we end up seeing perhaps the 1 per cent of people who will take advantage of a situation and exploit someone for their own purposes, so it is reassuring to hear about the care inspectorate’s intentions in relation to external scrutiny.
Our experience has shown that an on-going assessment or review of the person is more important in the first instance than a PVG check, which can be only a snapshot of a moment in time.
Regulation or registration of individuals by themselves will not prevent abuse occurring. We know that: we see it day and daily. However, with our input, such regulation could reduce the risk of that abuse happening.
We have been discussing pretty reactive stuff to do with what happens when things go wrong—or are expected to go wrong—or where there is a lack of trust in the system. However, we have received written evidence from the Scottish Human Rights Commission, which advocates a more human rights-based element in the legislation and refers to a report on independent living by the UK Joint Committee on Human Rights.
How many hours will we spend debating that question? It is a good question, but it is very complicated.
But many of the same good intentions sat behind the direct payments legislation, guidance and everything else and the proof of the pudding in that respect has been very slow take-up, resistance to the move and—some might say—the appearance of vested interests.
Earlier, Duncan Mackay acknowledged that in his authority the level of direct payments was very low, but he regarded it as one indicator of how people could be supported. He also set out some very impressive numbers on the people receiving individual budgets and I note that, in its inspections, the care inspectorate’s predecessor body examined how that particular local authority had enabled service redesign over an eight to 10-year period. An important principle is that some of these transformational changes will not happen over one or two years; it must be understood that they will take place over a longer term. That might require not only patience but some vision and confidence that this is the right direction, and I certainly think that some of the empirical evidence that Duncan Mackay cited earlier is correct in that respect.
The basic issue is whether the bill is sufficient to shift the balance towards those who are in receipt or need of care. Earlier, we were discussing the question whether, if I become incapacitated, I can be confident that people are being compelled to do their best for me. Does the bill do what it says on the tin?
As a lawyer, I point out that our aspiration for the law is that it create the optimum framework for getting things right. In other words, the law itself does not get things right; people have to operate and work within it.
I concur with Adrian Ward. Although legislation does not make things happen in and of itself, it provides the best opportunity for them to happen. However, a number of things have to take place alongside it. This is all about cultural and operational differences and how health and social care professionals interact and work with individuals to put them at the centre and to support them in making informed choices about what is right for them. That might shake some of the foundations of traditional thinking, because people will come up with imaginative and innovative ideas and we must ensure that we do not get in their way.
I have listened to those comments with great interest. Indeed, I have been through the situation myself and know that it is very complex.
The starting point is different. Variation across the country is informed by local decisions. The point that was made during the earlier evidence session also recognises that the amount of resource that is committed by each local authority will vary on a per capita basis and in the real terms of the resources that are assigned to those services.
May I add to that? Richard Lyle has asked a very good question. I would not expect provision to be exactly the same across the country, for the reason that David Cumming has described; I would expect some variation.
When the care inspectorate inspected social work services and their variability, did you detect any resistance to culture change, which would obviously have to happen if the bill goes ahead?
I suppose that resistance to change is always present in any circumstances. We should point to the achievements that have been made over a period of time. We are talking about reshaping care for older people or shifting the balance of care, and that is about transformational change. That is not to say that we have reached the end of the process; we are still on the proverbial journey.
A relevant point is that unless we can get staff to behave in the manner in which we need them to behave, the change will not happen. The situation is a bit like what happened with the integration of health and social care, in that there is no point in getting the structure right unless practitioners on the ground behave differently.
I am encouraged by your responses. My latter days as a councillor were when direct payments were first coming in, and I detected significant resistance to them at that point. Clearly, things are moving forward in that regard, although they have not gone the whole way.
In our earlier session, Mr Mackay referred to work that the care inspectorate had carried out across local authorities. Is that available to the committee?
Each of the predecessor bodies—the care commission and the Social Work Inspection Agency—published end of session reports, so to speak, in 2010, which are very informative about examples of good practice. There are areas of good practice across the regulatory services and services that local authorities provide or commission. Each of the two reports highlighted key gaps that needed to be worked on. Indeed, as a scrutiny body, we continue to work jointly with local authorities and with the regulatory care providers on how the services can be improved. That is at the heart of our grading and engagement approach.
We look forward to your accessing those reports for us. A recurring issue over the past couple of days has been postcode lotteries—Richard Lyle referred to that. We heard yesterday of good examples of practice, but the personalisation agenda is affected by what part of the country people live in and the different packages that may be available to them. We look forward to seeing information about that.
We will be able to give you some evidence from the work that I referred to about responses from various service-user groups and carers. For each of the 32 councils, we undertook considerable surveying and had direct meetings with carers and service users.
Is the care inspectorate’s ambition to inspect this and other areas all budgeted for and subject to a planned programme? The committee is aware of its work in care homes but is the inspectorate getting out to a wider group of people who are not being put up by the local authority or social work and whose problems are unlikely to be presented on the day of the inspection?
You asked two or three questions there and the answer to your first is yes, we are resourced to do the work. The cabinet secretary intervened to protect our budget—
Is this work covered by your budget or is it additional?
As I said earlier, given that we see self-directed support as an integral part of looking at local authority social work departments, we will examine it when we inspect other matters and will not treat it as something separate and independent. It is not a case of our saying that we are not resourced to do it.
So this is simply a continuation of the inspection of direct payments that you carried out in the past.
Absolutely. However—and you would expect me to say this—I cannot at this stage dot the i’s or cross the t’s because there is nothing to dot or cross yet. We are as confident as we can be that we can accommodate all this within our future scrutiny plans.
You can write to the committee with the planned programme for inspections.
I am happy to share that with members.
I apologise if I have assumed incorrectly but I believe that you were all present for the evidence from the previous panel, whom I asked about appeals with regard to the assessment of need. Do any of you wish to comment on that? For example, do you agree with ADSW’s statement that the complaints procedure was robust enough?
I was just about to raise that very issue. In order to fully avail themselves of the opportunities presented by the bill, people will need ease of access to a review, appeal or complaints procedure. Mindful of Duncan Mackay’s comments on the potential resource implications of having a separate appeals process and of the fact that the adversarial nature of complaints procedures means that parties often exhaust themselves without securing a happy outcome, I think that we should move from some kind of adversarial procedure to a system in which assistance is provided for, say, mediation.
I certainly advocate the kind of separation of appeals and complaints that I think Mr Smith is alluding to. There is an appeals mechanism at every stage of the process for incapable adults, with whom I am concerned, and I think that for the sake of equity the same mechanism should be available for capable adults who are being assisted. However, I appreciate that such a move would have resource implications.
I do not wish to say much more about appeals, because we do not have a strong locus in that respect. Our responsibilities include following up complaints against regulatory services—and, indeed, our own practices—but we would regard that as part of our on-going work.
We need to look at the issue from the point of view of the individual who feels unhappy, aggrieved or whatever. What matters is their perception of the fairness of the process. Whether it is defined as a complaint or an appeal, the individual should feel that it is fair. The object of the exercise is to give power to people. Part of the exercise of that power must be to bring them to a point at which they are perhaps not happy, but they understand why the point has been reached and they have a mechanism for dealing with it.
There is a huge difference between a complaints procedure and an appeals procedure. In practice, people often come to me because they have been through complaints procedures and they are still unhappy. They bring great big long letters attacking what has happened in the past and expressing their unhappiness with individuals. They might have started off with one or two complaints, but they will probably have many more. Just yesterday, I read a letter that had got up to about 14 complaints—the person was thinking, “What else can we throw in?”
It is useful to have that on the record, particularly Mr Ward’s comments. I tend to agree that we should not overlook the resource implications of a protracted complaints procedure. I presume that Mr Ward’s point on the budgetary implications is a general view among the panel. Bearing in mind that the main argument against going down an appeals route, or having something that is different from a complaints system and closer to an appeals route, is to do with cost, are you involved with or aware of any systems that might present an opportunity to find a compromise?
I would not want to give the impression that cost is the only driver. Again, we must consider the issue from the point of view of the individual. A complaints procedure can be a long, drawn-out and tortuous process. In most circumstances in which an appeal is considered necessary, that is because there is an immediacy about the individual’s needs, so they cannot wait to go through a lengthy process. There must be a mechanism for fast tracking so that the issue can be resolved for the individual one way or t’other, and with no guarantee of the outcome. There must be continuity of care. The care cannot be put on hold while the person works through a complaints process in which statements are taken, witnesses are called and so on, which would militate against continuity of care.
If we had an appeals procedure, would that do away with the need for a complaints procedure? I see that everybody is saying no.
For your record, I point out that everyone is shaking their head.
Okay, thanks very much for that.
There is an issue about whether or not the process is described as an appeal. Yesterday, we heard about a number of examples that we would not condone. Someone was asked at 9 o’clock in the evening whether they could complete the assessment form over the phone, and not face to face, because the person was under pressure. Someone discovered that if he played down his carer’s role, that could affect his package by up to 40 per cent. That might go back to Fiona McLeod’s point about the issue being about information and advocacy.
You could say that defining the characteristics of good assessment is not difficult. There is probably a lot of commonality in that, in any event.
In working with our colleagues in Healthcare Improvement Scotland, we have recognised that when someone who is involved on a full-time basis in the care of a member of the family presents to a general practitioner, it is expected from a good practice perspective that that would allow for an understanding to be gained by the GP and the local authority of what the routes to better assessment or reassessment should be. It is not just that the quality of information on the service user and/or the carer needs to be improved; there is also a need for information to be updated, because sometimes information that might have been very good becomes obsolete, and it really needs to be current.
That concludes the session. On behalf of the committee, I express our appreciation and thanks to you for giving us your time this morning. The session has been very interesting. Thank you very much indeed.
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