“A review of free personal and nursing care”
Agenda item 2 is evidence from Dr Woods on "A review of free personal and nursing care". Do you wish to say anything before we ask questions?
With your permission, convener, I would like to make a brief statement. Since the Auditor General's report was issued in January, I am sure that committee members have had the opportunity to study Lord Sutherland's report of his independent review, from which I will briefly draw out key conclusions that might assist the committee.
Convener, I do not want to be rude, but we have only 50 minutes and we know Lord Sutherland's conclusions. Could we spend a bit more time on questions?
No. I offered Dr Woods the opportunity to make an opening statement, so we should hear him out.
All right.
In view of Lord Foulkes's comments, I will try to be as brief as possible.
I want to pick up your closing point about clarity of the legislation and guidance. Audit Scotland's report highlighted ambiguities in legislation and guidance that have led to councils interpreting issues such as charging for food preparation differently. The committee had concerns about that. In your letter to us, you say:
It may be helpful if I say a little about the context of the announcement. Charging for food preparation is one of the most vexed issues that have been thrown up by the policy of free personal care. I am happy to acknowledge that in the early years of the policy there were clear difficulties surrounding the interpretation of the initial guidance that was issued. Although in 2004 and 2006 efforts were made to get the guidance right, the problem was that people were operating in the context of the existing legislation. A number of councils are still charging for food preparation.
Can you be a bit more precise?
I am not sure that I can provide the committee with more detail. Mr Rennick may have more information on the timing of the order.
A draft order is at an advanced stage. We intend to consult on it this year, with the aim of having an order ready to be laid before Parliament early in the new year.
So you hope that the legislation will be in place by the beginning of the next financial year.
That is the target.
That information is helpful.
Why is it taking so long? It was announced on 7 May that legislation would be introduced. It is now nearly November.
The difficulty with the current position is that there is a lack of clarity in existing legislation.
I know that. Why is it taking so long to draft a simple order to change it?
We want to ensure that we get it right this time.
With respect, the underlying issues are quite complex. One of the groups that we have established jointly with COSLA is tasked with ensuring that we get the legislation right once and for all. We do not want to produce an order that leaves any lingering doubts about the intention of the legislation or guidance, because that is the issue that has dogged us. Everyone would like the matter to be resolved as quickly as possible, but we want to get it right.
So you predict that it will take a year to draft and agree a simple order. Surely that is ridiculous.
It may appear on the surface that only a simple order is required, but the underlying issues are rather more detailed.
I want to expand the discussion beyond the issue of food preparation. There is a wider issue relating to the clarity of the legislation. There is a potential conflict in the way in which the policy is perceived. People believe that they have a universal entitlement to free personal care. Local authorities argue that, although they accept that broad principle, they must temper the way in which they implement it according to the resources that are available to them. We are never entirely sure whether there is genuinely free personal care for everyone or free personal care only if a local authority can afford it. Does the Government recognise that conflict? If it does, does it intend to try to resolve it, in the same way that it is trying to resolve the issue of the cost of food preparation?
The Government recognises the debate that you describe, and Lord Sutherland reflected on it in his report. He drew an analogy, which the Government has accepted, with the national health service, and argued that assessed care needs should be met as soon as is practically possible.
To take that a little further, can we anticipate with hope that the draft order will include provisions for a universal system for local authorities that people can expect to apply regardless of where they live, and that it will be focused not only on waiting times—important though they are—but on the level of service that an individual can expect under the heading of free personal and nursing care?
The draft order will deal with food preparation. We are currently progressing issues around access and entitlement, waiting times and eligibility in discussions with COSLA. That is one of five work streams on the back of Lord Sutherland's report. Clearly, it is desirable to have a standard approach to needs assessment, which is why we have done some work on the single shared assessment. In that context, we are exploring the index of relative need, to ensure that people who might need personal or nursing care are assessed on a standard basis throughout Scotland in accordance with four categories of need, one being the most needy and four the least needy. That will be put in place as well.
Will any draft orders be required to deal with the findings of the assessment of entitlement group?
I am not sure that draft orders will be required, because measures can be progressed through guidance. Mr Rennick might confirm that.
That is correct. The aim is to agree standards that do not require legislation.
What is the timetable? Do you have a date for when the group should report its recommendations?
We have asked the group to give us its report around the end of the current year, with the aim of trying to implement changes during 2009-10, as is the case for the food preparation order.
So you are looking for recommendations by the end of this year that will be implemented by the start of the next financial year, 2009-10.
Yes.
Measures will be phased in during the year, because of the requirement for people to be assessed or reassessed.
It is worth pointing out that the £40 million that the Government has identified for 2009-10 is intended to support some of those policy issues.
Following on from Cathie Craigie's question, will you clarify that from 2009-10 there will be an incremental phasing-in of common standards of care throughout Scotland; there will be an agreement between the Government and COSLA about what people can expect, irrespective of where they live; and any increased demand or costs associated with that will be covered by the £40 million?
I am saying that we and COSLA are committed to implementing as soon as is practical the products of the various work streams that we are talking about. We are also in clear agreement with COSLA about the use of the £40 million to support that. Of course, the local authorities have discretion about how to meet the needs of individual clients and their residents within that framework. We are trying to get as much agreement as possible around free personal and nursing care, and I believe that we are close to achieving it.
Will the £40 million go towards free personal and nursing care? Is that money ring fenced within the local government budget?
No, it will be part of the overall settlement for local government. However, everyone knows what the £40 million is for.
Lord Sutherland said in his report that, had the original money for free personal care been ring fenced, that would not have made any difference to the eventual outcomes.
I am slightly confused. There was a court case about this, which the local authority won, and therefore did not have to provide free personal care for someone. Is that correct?
You are referring to the Macphail judgment.
Yes. How do you overcome that?
We believe that local authorities are operating within the legal framework as described by Lord Macphail.
But that does not provide the guaranteed entitlement that Lord Sutherland recommended.
I will draw Mr Rennick into the discussion, as he may be more familiar with the detail of Lord Macphail's ruling. My understanding of what he concluded is that local authorities should make payments when the council, having assessed a person, has a contract with a care home provider to supply the care as assessed. That is why the debate about the eligibility criteria that inform assessments and waiting times for care is so important.
I understood that, if a council said that its budget had been totally allocated and that it had no money left, it would not matter that a person in its area was clearly entitled to care—the council could not provide it. Lord Macphail said that councils could make that decision.
I ask Neil Rennick to elaborate on the implications of the Macphail judgment.
As Dr Woods has said, our opinion is that Lord Macphail's ruling confirms the existing guidance, which is that people will get free personal care payments only once the local authority has in place a contract with the care provider. We have acknowledged that the interpretation of Lord Macphail's ruling has created concerns about what he actually said. In response to that, as part of the work on legal issues as well as on food preparation, we are considering the implications of the Macphail ruling. At the moment, the current guidance continues to apply, and our view continues to be that local authorities have a responsibility to provide free personal care on the basis of people's assessed needs.
But, according to the judgment, if councils do not have the resources to provide that care, they can get out of their responsibility.
Case law says that local authorities can take account of resources, but that does not mean that they can just ignore someone's assessed needs. Particular procedures take account of those assessed needs, and local authorities must ensure that, if someone has needs, those needs are met and kept under review until services are delivered.
A person who is assessed as being in need of free personal care can wait almost indefinitely for a care package if the local authority has no resources. Given the present squeeze and the other responsibilities that local authorities have under the concordat, that may well be the case.
That is why the maximum waiting time, which we are discussing with COSLA, is important. It will prevent what you described as someone waiting for an indefinite period. Local authorities also have a responsibility to meet needs within that waiting time while the care package is being assembled.
But you cannot guarantee that people who are assessed as being in need of free personal care will get it immediately in every local authority area in Scotland.
As I said, we regard the situation as analogous to the situation in the national health service, in which people have assessed needs and there are waiting times for certain services. Our record in bringing those waiting times down has been excellent in recent years. It is clear to us and to COSLA that we need the framework of eligibility and maximum waiting times to avoid the situation that you have described.
What maximum waiting time do you anticipate?
I am not familiar with the latest discussions on that. Perhaps Neil Rennick can update us.
It is still being discussed.
If you are not familiar with the latest discussions, can you tell us the maximum time that was being considered in earlier discussions?
I think that we are talking about several weeks.
So someone could have a critical care need, but if the money was not available, there would be no legal requirement to provide the care package. You said, however, that such a person's assessed needs would be met. How would those needs be met without money to pay for the care package?
In all cases in which someone has critical and immediate needs, and there is obvious danger to life and limb, local authorities provide services and support—usually within a matter of days, if it is required. Our own evaluation and Lord Sutherland's work found that when people have immediate needs, they are met. There is more of an issue around cases in which a professionally qualified social worker assesses that there are needs but they are not immediate. The issue is the timescale to which we provide services in cases where the person's needs are not immediate. We have to decide what constitutes a reasonable timescale.
Will there be national standards to ensure that immediate assessed needs are met?
We are working towards that, and we have been discussing it with COSLA. As I said, under their existing statutory responsibilities, local authorities are already meeting people's critical and immediate needs.
The analogy with the national health service is evident: people with immediate life-threatening and emergency needs are dealt with immediately, whereas those who have other needs—particularly for elective surgery and so on—may experience delays. We are committed in the NHS to bringing times down, and we are committed with COSLA to agreeing a framework to meet needs within the available resources.
The Macphail judgment, which we spoke about earlier as a result of George Foulkes's question, gave local authorities a way out when they did not have sufficient resources. Can we be sure that local authorities will not be able to use the new guidance and the proposals that you have spoken about as a defence for not providing free personal and nursing care?
The issues in the Macphail case related to a very specific minority of free personal care clients, who can be described as self-arrangers, that is, people who put themselves into care for whatever reason before approaching a local authority for assistance. We are considering the position of self-arrangers as part of our work.
We have heard a lot about eligibility, and Dr Woods mentioned the national eligibility framework. Can you provide information about the work that the Scottish Government has undertaken with councils to develop that framework? What is its current status?
As Dr Woods indicated, a number of work streams are being taken forward. One of them is specifically on access, eligibility for services and waiting times. It is being led by a senior professional from the Association of Directors of Social Work, and it involves COSLA, us and representatives from older people's organisations. The work on that has been carried out over the past few months and will continue.
Have any other organisations been involved?
Age Concern Scotland and Community Care Providers Scotland—as well as ADSW, COSLA and us—are involved in the wider package of work.
How does the Government intend to ensure that the public, particularly older people, are made aware of the care to which they are entitled in the different council areas?
That is another area of work that we are pursuing with COSLA. I believe that the work is chaired by someone from Age Concern Scotland. We are committed to producing clear advice throughout Scotland so that people have the most up-to-date information on the policy and on what some of the changes that we have described will mean for them.
Sticking with assessed needs, Mr Rennick spoke about meeting immediate needs and said that an assessment of longer-term requirements will be made. Will there be a standard definition of what is to be assessed and which needs must be met?
Yes. That is why the work on the single shared assessment and the index of relative need is so important.
If that is the case, where do domestic home care services fit in? The Audit Scotland report highlights that greater priority is being given to intensive care needs, but points out a reduction in domestic care services. I am sure that most members will know from constituents' inquiries that domestic care services are important to many older people to enable them to maintain their quality of life at home. Where do domestic care services fit in?
We agree on the importance of those services. Before I give more information on that, I want to go back to the previous discussion. I was trying to refresh my memory of a rather important outcome from an evaluation report that we produced that is pertinent to the discussion. In 2007, Hexagon Research and Consulting reached the conclusion that the vast majority of people with care needs received services without significant complication or delay. That is an important back-cloth to the debate that we had a moment ago.
As Dr Woods said, we have been considering using the NHS's health improvement, efficiency, access and treatment targets to tackle the issue of keeping more people in their homes. Yesterday, I attended a national consensus conference to consider ways in which we can keep more people in their homes and prevent them from being admitted to hospital. There seems to be a consensus about the need to grow anticipatory care services. Dr Woods gave the example of fall prevention. We need to reach out and identify older people who are at risk and work with them to help them deal with their long-term conditions in their home, so that they do not have to be admitted to hospital, which often ends up in admission to a care home. That requires investing more up front.
My question has been partly answered. It appears that there has been a filling in of gaps as the policy has developed, in levels of care, assessments and so on. What other gaps have been identified that remain to be addressed? Are there any major gaps to fill?
I struggle to think of any that we have not yet mentioned. Perhaps there is some specific area that Mr Welsh is interested in, but we believe that the matters that Lord Sutherland identified form the kernel of the issues that we need to resolve. The policy has been very successful and has provided a great deal of benefit to a lot of people in Scotland, but one of our longer-term challenges is the growing number of older people, and we are turning our attention to working with COSLA on the pressures that arise from an ageing population. I refer not just to the pressures arising from free personal and nursing care; I go back to the point that we need to consider the totality of spending on long-term care, which is £2.2 billion. The proportion of the population in their 70s and 80s will increase in the future. If we consider that as a gap, to use the term used in your question, I would cite that as something that we are working on at the moment.
Even after all this time, the policy still appears to be work in progress. That is what I was asking about.
It is indeed work in progress. We are thinking about the consequences of an ageing population, and the issues are not limited to their care needs. We want to view them in a wider context.
You mentioned that, within the timescales available at the time, it would not have been possible to improve the financial estimates and so on. With the benefit of hindsight, was the policy implemented earlier than we were adequately prepared for? I am mindful of the discussion that took place just a moment ago, with questions about the clarity of the legislation still being asked six years after the implementation of the policy.
There were a number of questions in there, and I will do my best to find my way through them. As I said a moment ago, we should not lose sight of the fact that the policy has been a success. That is a widely held view, and it was confirmed by Lord Sutherland. With hindsight, it was a considerable task to implement the Parliament's decision speedily. My recollection of events at the time is that there was a strong wish for the policy to be implemented as soon as possible. The will of the Parliament was clear in relation to the policy.
You certainly have. You can say with confidence that there will be no surprises or shocks regarding cost projections over the coming years. I am trying to find out whether we are getting it right now.
We believe that, within the parameters and uncertainties around such a policy—given the context of an ageing population and so on—we are getting it right. We did work previously in the range and capacity review and in the Hexagon Research and Consulting report that I mentioned, and we will continue to work in this area to try to get the best possible estimates that we can. However, there is a degree of uncertainty in this work, and I cannot undertake to remove that.
Everyone is concerned at the moment about the increased cost of living, although our hope is that the cost of living may start to moderate over the coming months. What assumptions and projections did you make about the annual increase in the costs of free personal and nursing care over the period of the spending review, and what cash increase will individuals receive over the next few years to reflect that?
I will invite Mr Rennick to say a bit more about that. We are, of course, in the process of setting budgets. As you will know, I am going to the Health and Sport Committee in a few minutes to talk about budgets. The local government settlement is not part of my responsibility, so I do not have all the detail that you perhaps want.
It is already set for the spending review period, as I understand it.
The payments to self-funders were uprated for the first time in the past year, and the Government has made a commitment to continue to uprate those for inflation. I do not know whether Mr Rennick wants to add any more detail on that.
That is the position. We uprated the payments for self-funders from April, and the commitment is to uprate them again next April and the year after. That will be confirmed in regulations that will be put to the Parliament for approval.
Is that additional cost provided for in the existing local government settlement, or might more money be required, depending on the rate of inflation? Will councils simply have to absorb it?
It was part of the concordat agreement, so it is included in the existing local government allocations.
Therefore, if inflation is high, the pressure on council budgets will be all the greater because the additional payment will flow through to the patient or the individual with the assessed need. Is that how it will work?
Certainly, the inflation increase will have to be set, and then local authorities will meet those costs. The cost of the increase in April was about £1.5 million across all local authorities.
Are local authorities quite clear that that element is included in the current settlement, so there will not be the expressions of surprise that we have heard from some of them on free school meals?
Certainly, that element is included in the concordat.
And the local authorities know that.
It is in the concordat.
Okay.
I want to follow up that point. Willie Coffey and Nicol Stephen have identified a problem here, and I am surprised that Dr Woods does not appear to recognise it. The Audit Scotland report said that there was a shortfall in central funding, which was estimated as either £46 million or £63 million in 2005-06, depending on the assumptions. An additional £40 million will be provided from 2009-10—a few years later. Is there not going to be a greater shortfall by 2009-10?
With your permission, I will take a few moments to pick my way through the history of the debate about gaps. That may be helpful.
I know Stewart Sutherland—I spoke to him yesterday—and I have great respect for him. Are you saying that the Auditor General, for whom I have equal if not greater respect, got it wrong in his report?
No, I am not saying that the Auditor General got it wrong; I am saying that this has been a very complex and difficult area for everybody concerned. As the Auditor General's report shows, there were some difficulties with the quality of the financial returns, and some things were simply not known about the pattern of expenditure before the policy was introduced. I am merely making the point that, in the context of that considerable complexity—which, inevitably, has spawned a substantial debate—Lord Sutherland examined all the issues and his conclusion was that, going forward, we need to put £40 million into the policy. That is what the Government has accepted.
Are you saying that there was no shortfall?
I am saying three things. First, at the outset of the policy, there was no shortfall. Secondly, in the light of experience and the discussions that took place in 2005-06 and beyond, there has been substantial debate about a number of issues such as food preparation. That debate has been informed by the Auditor General's work. Thirdly, Lord Sutherland pulled all of that together in a thorough analysis that I applaud for its clarity. He concluded that, going forward, there is a need for £40 million to stabilise the policy—to use his words—in the areas that I have just described.
As Nicol Stephen said, Lord Sutherland's report was produced in April and there has been a lot of financial turmoil since then. Are you saying that no account needs to be taken of that?
Well, yes. We accept that the £40 million takes account of some of those things. I mentioned pay, prices, and demography, and the Government obviously keeps under review the pressures on the public sector.
We look forward to hearing your evidence in a year's time.
Following on from Nicol Stephen's questions and comments, I have a question about the attendance allowance. The previous Scottish Executive planned for the inclusion of attendance allowance money, but that money did not then go to the Scottish Executive. Lord Sutherland recommended that
The Government agrees with Lord Sutherland that the attendance allowance money should be available to the Scottish Government. The fact that it was not available at the outset of the policy meant that the Administration at the time had to inject additional resources. It did so, and that has been maintained ever since.
Am I correct in saying that the £40 million will become available for the first time during the 2009-10 financial year?
Yes.
What is the amount for the subsequent financial years?
Mr Rennick will elaborate on that.
That figure is for 2009-10. The future figure will be considered during the next spending review.
What is the figure for 2010-11?
At the moment, it is £40 million, but we have agreed with COSLA that we need to look at uprating for demographic factors and inflation beyond 2009-10.
So you are committed to uprating the £40 million for 2010-11.
In her statement to Parliament in May, the minister gave the commitment that £40 million would be provided for next year and that we and COSLA would look at what uprating was required for future years.
So some additional money beyond the £40 million could be provided for 2010-11—is that correct?
That will be considered as part of the overall funding package, yes.
You are talking about this spending review period. When does it come to an end?
The current spending review period ends in 2010-11, but we recognise that we need to consider the position. This money is for 2009-10—
I was expecting that answer. The spending review period ends not in 2010 but in 2011, so we should know today—this morning—what the figure will be for 2010-11, because that is within the period of the current spending review.
Lord Sutherland said that we should provide £40 million from 2009-10 and work with COSLA to look at what uprating might be required for future years, and that is what we are doing. We acknowledge the issue that you have raised.
That is helpful, but what you are saying is that, as things stand, the risk is entirely with the local authorities. Unless there is a change of policy and a new announcement by the minister, any squeeze on local authority spending because of an increase in inflation—we have seen the impact on the spending review recently—would fall on local authorities, and any increase in the £40 million would require an announcement by the minister. Is that correct?
The issues around inflation are wider than free personal care.
I understand that entirely. I am just focusing on free personal care because that is the issue that we are considering this morning. The £40 million was assessed as necessary by Stewart Sutherland some time ago, and that is the figure that has been announced for 2009-10. However, there is concern that there is no guarantee that the figure will be increased in subsequent years, unless ministers decide to increase it. We have received no guarantee or reassurance about that yet.
Much wider sums of money are already built into the settlement, and it is important to say that issues around inflation and increases were considered as part of the settlement discussions. The £40 million is a fairly small element of the total sums of money involved, but I acknowledge the issue that you have raised.
The figures look wholly inadequate, which is clearly a problem across the Government.
As we are beginning to run out of time, I will allow two quick questions.
I have another financial question, but it is on another topic. Paragraph 53 of the Auditor General's report states:
The latest figures that were published as national statistics include overhead allocations or assumptions for all local authorities for both home care and residential care. One of the issues around the overheads that was identified by Lord Sutherland but which could not be covered in the Auditor General's report was the fact that, although councils have overhead costs that are reflected against free personal care, as well as the additional funding that they get specifically for free personal care, separate allowances for overhead costs are funded in the settlement. That would impact on the £46 million figure that Lord Foulkes identified in respect of the suggested funding gap. That was one of a number of factors that Lord Sutherland took into account in identifying the £40 million figure.
Do you have a round total for the amount that was put in to cover overhead costs?
What Lord Sutherland identified was £6.5 million—clearly, there were other factors.
I seek clarification on the Government's position regarding the attendance allowance. Dr Woods said that the Government agreed that the £30 million should be available for attendance allowance. Is the Government saying that the Department for Work and Pensions should still be paying attendance allowance to individuals who qualify for it? Would that mean that the Scottish Government would charge those individuals for personal and nursing care in order to bring that money back into the pot?
We are saying that we believe that the resources associated with attendance allowance should be returned to the Scottish—
They are included in the block grant. They are taken account of in the block grant—there is no point shaking your head.
My point is that if we are talking about a benefit, it should be paid out to the individual through the Department for Work and Pensions. If the Government believes that the £30 million should be in the system, how does it propose to make that work?
The options that were discussed with the DWP when the policy was introduced were based on the original assumption that individuals would be able to retain the attendance allowance. The advice from the DWP was that, under the attendance allowance rules as they applied, that would not be the case. There was then a discussion about a resource transfer that would have allowed those resources to continue to be available for older people's services in Scotland, recognising that the implementation of free personal care provided that saving to the UK Government.
I am seeking clarity. Was the proposal that the Department for Work and Pensions should continue to pay attendance allowance and that the Scottish Government should charge individuals for their care?
If people were still receiving attendance allowance, local authorities would take that into account in charging arrangements. The most recent discussions have been about a transfer of resources to recognise the fact that the UK Government has made a saving because the people who get free personal care no longer receive attendance allowance, as they would have before free personal care was introduced.
It is a complicated issue to which we will return in different shapes and forms over the coming years. I realise that pressure of time prevents the witnesses from staying, but I thank them for their contribution.
Thank you.
Next
Section 22 Report