Scottish Government

JOINT WORKING ON COMMUNITY CARE

1. Introduction

1.1 The Scottish Executive is committed to improving the quality and availability of community care services. The Joint Future agenda is central to that commitment. It offers the opportunity to develop innovative and holistic approaches to continuously improve the results for people with community care needs through better joint working by local authorities and NHS bodies. Part 2 of the Community Care and Health (Scotland) Act 2002 ('the Act') ¹ introduces new arrangements that remove legal barriers to joint working between local authorities and NHS bodies ². They build on the principles of the Joint Future agenda and enable the full range of joint working arrangements for joint resourcing and joint management set out in Circular CCD 7/2001.

1.2 Most of the provisions in Part 2 require the making of regulations to become fully effective. This paper sets out the Executive's proposals for these regulations.

1.3 While these legislative changes were taking place, the implications of the Joint Future agenda for local authority and NHS staff were being considered by the Integrated Human Resources Working Group. The Group's Report and Recommendations was issued for consultation in May 2002. ³

What does the consultation cover?

1.4 This consultation paper proposes what should be included in the regulations under sections 13, 14, 15 and 17 of the Act. The purpose of the regulations is two fold:

- to identify the functions to which the provisions in these sections should apply; and

• to set out conditions and arrangements for use of the powers in sections 13-15.

1.5 Section 15 is at the heart of these provisions. It enables joint working to reach new levels by offering the means of creating truly integrated service provision, bringing together a suite of relevant services and co-ordinating them on a day to day basis from a single point. It can apply to either for any community care client group or community care generally. This can be achieved through delegation of functions and maintenance of a fund (which is more usually referred to as 'pooling of budgets'.) The powers in section 15 to delegate and pool budgets are inter-related. NHS Bodies and local authorities may delegate functions under section 15(1)(a) and, if they wish, pool the budget; but cannot have a pooled budget without bringing together the necessary suite of services and agreeing their co-ordination through delegation.

1.6 In addition, under section 17 of the Act, Scottish Ministers have the power to direct local authorities or NHS bodies to enter into joint working arrangements where they consider that this would improve the performance of their functions. The arrangements can be either delegated functions and the maintenance of a fund (pooling), or such other arrangements as are prescribed. This paper includes proposals on the latter.

1.7 As well as the regulations the Executive will issue detailed guidance to support local authorities and NHS bodies in the operation of the new provisions when they are introduced later this year.

Legislative Proposals

2. General considerations on functions and conditions/arrangements.

2.1 Part 2 of the Act enables local authorities and NHS bodies to enter into new joint working arrangements. Section 13 gives NHS bodies powers to make payments towards certain local authority expenditure. Similarly, section 14 gives local authorities powers to make payments towards certain NHS expenditure. Section 15(1) allows both local authorities and NHS bodies to delegate certain functions to each other to create a suite of related functions, and to set up the most streamlined and flexible funding arrangements (pooling) for these functions. In addition, Scottish Ministers have the power under section 17 of the Act, to direct local authorities and NHS bodies to enter into arrangements under section 15 or any other prescribed arrangement where the performance of a function would be improved by that course.

2.2 The powers in these sections vary significantly. Those in sections 13 and 14 to make payments are a small but important part of the jigsaw. They build on the existing Resource Transfer arrangements between the NHS and local authorities and enable payments to flow in either direction within local partnerships. The powers in section 15 to delegate functions and pool budgets are by far the most significant. And the powers of intervention in section 17 are reserve and for use as a last resort. The suite of powers is strongly enabling, designed to play a part in a ladder of service improvement; but they also recognise Ministers' desire to ensure that local partners deliver on this agenda.

2. 3 For each, the functions of local authorities and NHS bodies to be included must be prescribed in regulations. These functions will then form the boundaries of any arrangements made between local authorities and NHS bodies. There have been many innovative uses of resources in the past under existing legislation. The new provisions should therefore support and extend that possibility, not constrain it. One of the outstanding examples was of NHS resources (primary care) being applied to purchase housing for people leaving long-stay hospitals. That is very much the holistic use of resources that Ministers would wish to see encouraged as part of these arrangements.

Scope

2.4 The Act allows for these arrangements to apply to any function of a local authority or NHS body. As was made clear during the passage of the Bill, Ministers will apply these arrangements initially to community care. In time, they may extend to other areas such as children's services, offenders' services or other parts of the social/health care interface, where similar development of joint working is taking place.

2.5 Ministers are also very clear that to enable these powers to work well on the ground the functions designated have to be as expansive as possible. The assumption throughout this paper is that all the relevant provisions on and relating to community care will be included. Exclusions will therefore be only those that are essential. For example, many areas are currently making good progress on developing joint resourcing and joint management for community care under the terms of Circular CCD7/2001. That describes, amongst other things, how local partners can 'align' budgets under existing powers. The guidance recognises the need for as inclusive arrangements as possible and suggests, for example, in the context of older people's services including relevant resources in acute services and primary care. If holistic decisions are to be taken locally, the scope of the regulations needs therefore to be similarly expansive.

2.6 The range of functions will cover those in social work, health and housing that constitute or interact with community care. For the most part that will be self-explanatory. The Executive believes that while the scope of the functions prescribed under each section should be expansive, there are good reasons for differences as between that for payments under section 13 and 14 and delegation under section 15. As the paper indicates, there are a few areas where despite the assumption towards inclusion retaining is more apposite than delegating functions. And while delegation of a function may not be appropriate, being able to make payments from one sector to the other in respect of it may be. This would enable, for example, the switch of resources identified in paragraph 2.3. In the context of acute services, while areas like surgery may not be suitable for delegation, changes in the way these services are provided can impact on others. It would be desirable to recognise the wider financial benefits of that interface in the ability to make payments under sections 13 and 14. Finally, under section 17 the scope for intervention needs to broaden out again so that all the relevant community care and related functions come back into the frame.

2.7 In social work, the functions should cover the full range of services for adults under the Social Work (Scotland) Act 1968 and other related enactments. In health, they should cover long-stay and acute hospital care, primary care and ancillary services. In the legislation, NHS functions are described in broad functional terms. Thus the description of functions will include all primary care. There is no expectation of, for example, wholesale delegation. It will be important however that the elements within that selected by local partners for delegation etc are considered within the guiding parameter of creating and resourcing a relevant suite of community care services. And in housing, they should include the main provisions covering mainstream and supported housing including grants, adaptations and 'Supporting People'. There are, however, certain important exceptions in the context of delegation in particular that are described below.

Exclusions

2.8 As indicated earlier, Ministers wish to limit exceptions to the essential. They do not wish NHS bodies to be able to delegate functions related to surgery, or invasive treatment. In the local authority sector, exceptions should be relatively few. The two main areas suggested are the duties of Mental Health Officer (MHOs) under the Mental Health Act 1984 and the duties of local authorities under the Adults With Incapacity (Scotland) Act 2000. None of these elements would be able to be included in either delegation or pooling arrangements.

Conditions

2.9 The intention of the provisions on conditions is to govern the conduct of the arrangements for payments under sections 13 and 14, and the delegation of functions and the pooling of budgets under section 15. Conditions will cover both the more obvious scope around monitoring, accountability, etc. as well as a wider range of activity, especially that illustrated in section 15 (4), on the need to consult and the detailed management of the arrangements.

2.10 As indicated earlier, delegating functions under section 15 is of a materially different order to the making of payments under sections 13 and 14. That is reflected in the range of conditions which the Executive believes should apply to section 15.

3. Payments by NHS bodies under section 13

3.1 Functions

3.1.1 Paragraphs 2.3 - 2.8 set out the general direction on the scope of the provisions on functions. Sections 13 and 14 of the Act are broadly reciprocal powers enabling local authorities and NHS bodies respectively to make payments to one another to further their functions. Section 13(1) requires Ministers to prescribe the range of local authority functions in respect of which an NHS body may make a payment.

3.1.2 The powers under section 13 are similar to those under section 16A of the 1978 Act, but can potentially apply to a broader range of functions. They are intended to facilitate the operation of aligned budgets. Payments can be towards revenue or capital expenditure, and can be paid only after consultation with the local authority. They allow money to be directed to priority services, to facilitate service redesign or for one budget to compensate another as resources match the agreed portfolio of services. Thus money is not trapped in the wrong agency when it needs to be elsewhere. For example, in older people's services, partners may decide to transfer NHS funding to the local authority to expand its home care service or speed up the provision of equipment or adaptations, to reduce delayed discharge; or partners might agree through the DAT to transfer NHS funding to promote an integrated a community drugs service.

3.1.3 The functions to be covered by regulations have to meet certain criteria set out in section 13(1). The NHS body needs to be of the opinion that they:

• have an effect in relation to the health of individuals;
• have an effect in relation to, or are affected by, any function of that body; or
• are connected with the function of the body.

3.1.4 Given the underlying desire to make these provisions work effectively, and encourage the kind of innovation described in para 2.3, the potential opportunities and benefits from financial interaction are considerable. The range of functions prescribed needs to reflect that. The object therefore is to express them widely. The Executive believes it is necessary to prescribe all the local authority functions for adults in community care and housing which have a health interface in terms of this section, as set out below.

Your views are invited on whether this is the relevant list of functions.

3.2 Conditions

3.2.1 Section 13 of the Act already requires that the NHS body proposing to make payments towards local authority expenditure must first consult the local authority in question. The regulations allowing NHS bodies to make payments to local authorities must specify the conditions for them to do so.

3.2.2 The Executive believes that a series of measures to ensure propriety, accountability, flexibility and secure value for money are necessary prerequisites of payment arrangements. We propose that the conditions to be specified in the regulations are:

3. 2. 3 The fifth and sixth conditions above are rather more flexible than the similar arrangements already in place in England and Wales. Condition 5 recognises that while the immediate reaction to downturn in expenditure would be a corresponding downturn in the payments, it is more desirable to allow inter year or inter scheme flexibilities to achieve the best results over time. Similarly, under condition 6, a change of use would normally render automatic repayment. That remains an option, but it is for partners locally to decide the appropriate course as part of the payment arrangements.

Your views are invited on whether these are an appropriate set of conditions.

4. Payments by local authorities under section 14

4.1 Functions

4.1.1 Section 14 provides a reciprocal power to section 13. It allows for a local authority to make payments to an NHS body towards certain of the NHS body's functions, if in the opinion of the local authority they would improve the way in which the local authority's functions are exercised. For example, again using older people's services, partners may decide to transfer local authority funding to the NHS partner to expand the capacity of community nursing or rehabilitation services, to achieve a shift in the balance of care, to improve care journeys or to reduce delayed hospital discharge

4.1.2 Ministers are required to prescribe the NHS bodies' functions to which the arrangements may apply. In the same way as for section 13, that is interpreted widely to include the range of hospital, ancillary and primary care services for adults, as well as non-emergency ambulance services. But it should not extend to the Special Health Boards generally. The resultant scope of suggested functions is set out below:

Your views are invited on whether this is the relevant list of functions.

4. 2 Conditions

4.2.1 Section 14 of the Act already requires that local authorities proposing to make payments towards NHS expenditure must first satisfy themselves that by doing so there would likely be an improvement in the service. The regulations allowing local authorities to make payments to NHS bodies must also specify the conditions for them to do so. We propose that the conditions to be specified in the regulations should cover the same ground as for payments under section 13, as follows:

Your views are invited on whether this is an appropriate set of conditions.

5. Delegation of functions and joint funding under section 15.

5.1 Section 15 makes a major contribution to advancing joint working by enabling:

- NHS bodies and local authorities to delegate functions to one another; and

- NHS bodies and local authorities to pool resources.

5.1.2 These powers raise joint working to new levels. Delegation allows the partners to bring together a suite of functions relating to a community care client group or community care generally to promote integrated service provision and through one of the partners - on behalf of the others - to provide a single point of co-ordination. This might extend for example, to all learning disability or mental health services for the area. And pooling all resources means that there is total flexibility in the use of the funds within the pool, irrespective of their source.

5.1.3 Delegation allows local partners to create joint teams and services by bringing together the suite of relevant functions and by agreeing jointly who is best placed to co-ordinate these functions. One partner, either NHS or local authority, hosts the arrangement. These arrangements bring together the separate strands of the workforce (through attachment, secondment or ultimately transfer) to provide a more integrated approach. Pooled budgeting streamlines the management of and accounting for resources and makes their use more flexible. It creates a 'community care pound' and accounts for it against jointly agreed aims and objectives. Care packages can be put in place more speedily without recourse to different schemes of financial delegation, different financial instructions and separate auditors. This empowers joint teams to provide seamless services with the minimum of bureaucracy, i.e. lower overheads of separate administration and accounting.

5.1.4 Delegation does not mean that the responsibility for a service transfers from one body to another. The partners will decide what the overall suite of relevant services should be to sustain the joint service or activity they want, and develop a framework accordingly. The delegating partner ultimately remains accountable for the service or activity it delegates: the day to day running of the service or activity is, however, delegated to the other partner within the framework.

Functions

5.1.5 The Act requires Ministers to set out in regulations the functions which local authorities and NHS bodies can delegate. The broad direction is set out in paras 2.3 to 2.8. Again, in order to fulfil the objectives of the Act the scope of the functions needs to be extensive. The starting point is the wide range of functions proposed for regulations under sections 13 and 14. But there are a few areas, as compared with that scope, where delegation is not felt to be appropriate.

Exceptions

5.1.6 Paras 2.7 and 2.8 began to rehearse what these might be. Ministers believe it makes sense to inhibit delegation where quite clearly the body to whom the function could be delegated could not reasonably exercise the delegation. Thus, while the vast majority of the powers listed in sections 13 and 14 for payments remain fully relevant to delegation, a few do not. From that list Ministers believe there is a case to exclude from the list of NHS functions those which involve surgery, invasive treatment, investigative procedures (eg. x-rays) and emergency ambulance services. It would not be appropriate to place these activities under the day to day co-ordination of local authorities. More generally, as NHS functions are described broadly in legislation, it will be for the local partners to determine what components of NHS functions are desirable to create the suite of community care services required for their preferred service model, subject to the explicit restrictions above.

5.1.7 In social care, there are particular statutory responsibilities of local authorities under the Adults with Incapacity (Scotland) Act 2000, and in connection with the provision of Mental Health Officer services under the Mental Health (Scotland) Act 1984, that relate primarily to protective functions rather than the provision of care services. These concern both the protection of the legal rights of those potentially subject to this legislation as well as the protection of vulnerable persons who may be at risk as a consequence of their mental disorder or incapacity. It is considered that these should be excluded from delegation, for reasons which are set out more fully below.

5.1.8 In both cases, joint working is an important part of performing these functions, and indeed is part of their success. The question is whether the provisions in the 2002 Act would benefit these areas. The functions are in some respects more specific than the generality of community care provisions by being conferred on individuals. Because these functions are performed in some case by mainstream social workers the possibility presents itself of their mainstream function being delegable and those functions under the 1984 Act and the 2000 Act retained. Professional advice is that this should not present any problems.

Adults with Incapacity

5.1.9 The 2000 Act confers a wide range of functions on local authorities. In summary, they are:

• To investigate circumstances where the personal welfare of the adult is at risk.
• To provide information and advice to those exercising welfare powers.
• To investigate complaints in relation to those exercising welfare powers.
• To consult other statutory bodies under the Act (Public Guardian and the Mental Welfare Commission) on matters of common interest.
• To supervise welfare attorneys and welfare guardians.
• To apply for an intervention order or guardianship order, where no one else is doing so to protect the property, financial affairs or personal welfare of an adult.

• To provide reports to accompany applications to the sheriff for intervention orders or guardianship orders (under the Act these reports must be made by a Mental Health Officer or the Chief Social Work Officer where the adult's welfare is in jeopardy only because of the inability of the adult to communicate)
• To act as a welfare guardian where this is the most appropriate means of safeguarding the adult's welfare (under the Act the Chief Social Work Officer is appointed as guardian, but he or she may nominate another officer of the local authority to carry out the functions and duties of guardian on a day to day basis).

5.1.10 The 2000 Act reflects a wide-ranging and long awaited reform of the law in the area of incapacity. Local authorities are addressing their new responsibilities with vigour. The supporting code of practice makes clear that, in recognition of increasing joint working, there should be a multi-agency and multi-disciplinary approach to implementing the 2000 Act. Where there are established procedures for local authorities acting in conjunction with the NHS, it will be necessary to ensure that these are consistent with the principles of the 2000 Act.

5.1.11 Against that background, the Executive considered whether the duties of local authorities, as outlined above, should be brought within the scope of these regulations. Our conclusion is that they should not, for the following reasons:

• local authorities' duties under the Act are concerned with protecting and safeguarding the welfare and financial interests of adults with incapacity, not with the provision of community care or other services per se;
• in relation to guardianship, the extent of delegation possible by the CSWO is already set out in primary legislation, as noted above;
• authorities may require to take action in relation to risk to an adult's property or finances, as well as their welfare;
• the person exercising guardianship or taking other action under the 2000 Act has to act independently to protect the individual's rights, and needs to maintain some distance between this and the provision of services or other duties.

Mental Health Officer (MHO) Functions

5.1.12 Similar considerations apply to the MHO functions under the Mental Health Act 1984. Mental health law is about much more than the provision of services. It is about balancing the objectives of protecting the rights of vulnerable mentally disordered people to choice and autonomy, and ensuring that such people receive necessary treatment. MHOs play an important role in providing an independent, non-medical, professional assessment in decisions about compulsory care and treatment from a community based perspective. The Mental Health and Adults with Incapacity Acts also place duties on local authorities concerning the protection of those who may be vulnerable and at risk as a result of their mental disorder and /or incapacity. Having assessed that role against the objectives of these regulations, the Executive believes that there is value in retaining organisational independence for the local authority responsibility to provide and manage the delivery of MHO services. It proposes therefore that the MHO function be excluded from delegation.

5.1.13 Thus the functions which the Executive believes should be delegable are, as follows:

Your views are invited on whether these are the relevant functions for delegation, and whether the exclusions both as listed in 5.1.13 and described in 5.1.6 to 5.1.12 are appropriate.

5.2 Arrangements for delegation

5.2.1 Section 15 of the Act is of a very different order to sections 13 and 14. In enabling local authorities and NHS bodies to delegate functions to each other, it already requires that they must first satisfy themselves that there would likely be an improvement in the performance of their functions. Regulations must specify the arrangements for delegation by local authorities and NHS bodies. In addition, section 15(4) identifies a range of subjects which could, but are not required to, be the subject of regulations. Ministers would wish to make regulations under most of the headings.

5.2.2 The contents of this sub-section fall into four categories:

• delegation to NHS bodies;
• delegation to local authorities;
• specific provisions on the arrangements generally (as listed in section 15(4)); and
• arrangements for joint funding (pooling)

Delegation to NHS bodies

5. 2.3 The Executive believes that delegation needs to be underpinned by a formal agreement between the two partners. It therefore proposes that the arrangements for local authorities to delegate functions to NHS bodies will be included in a written agreement, which must specify:

Delegation to local authorities

5.2.4 In the same way, a reciprocal form of agreement is required for delegation to local authorities. The Executive proposes that the arrangements to be made by local authorities for functions that have been delegated to them by NHS bodies will be included in a written agreement, which must specify:

5.3 Particular provisions on delegation/joint working

5. 3.1 Section 15(4) of the Act identifies a number of particular provisions on which regulations might be made. Although not a requirement under the Act, the Executive proposes to include provisions on most in the regulations, as follows:

5.3.2 The Ministerial powers identified above are minimal and reflect the expectation that the arrangements will, in essence, be for local determination. If problems do arise, we expect a local ladder of resolution and arbitration to address them. Ministers do not expect to want to use the powers to vary or terminate arrangements, but they are there should problems materialise.

5.4 Arrangements for joint funding

5.4.1 The terms of the Act enable delegation of functions, which may then include joint funding arrangements (usually referred to as pooling of budgets), which give greater flexibility than 'aligned' budgets possible under current legislation.

5.4.2 The Act already requires that where local authorities and NHS bodies decide to set up pooled funds they must first satisfy themselves that by doing so there would likely be an improvement in the performance of their functions. Again the Act stipulates that the arrangements for joint funding by local authorities and NHS bodies must be set out in regulations.

5.4.3 The Executive wishes to focus on arrangements relating to the management of the fund. It accordingly proposes that the arrangements for joint funding between local authorities and NHS bodies will include:

5.4.4 Broadly speaking, the arrangements set out above for delegation and pooling of budgets are very similar to the working arrangements in England and Wales.

Your views are invited on whether the conditions and arrangements for the management of delegation and joint funding in para. 5.2.3, 5.2.4 and 5.3.1. are appropriate.

6 Ministers' power to require delegation etc. between local authorities and NHS bodies

Functions

6. 1 Part 2 of the Act and the regulations aim to enable local authorities and NHS bodies to develop their own joint working arrangements, to monitor their performance (helped by the joint performance measures being advanced under the Joint Performance Information and Assessment Framework (on which the Executive is consulting separately), and to look for even greater integration. However, under section 17, Scottish Ministers have the power to intervene where they consider the functions outlined in the regulations are not being adequately exercised, and intervention would be likely to lead to improvement in them. Section 17 also gives them powers to direct the local authority or NHS body specifying what action they should take. Ministers have already made clear that these are powers of 'last resort'. They should be seen as the ultimate step in a ladder of service improvement.

6.2 The regulations under section 17(1)(a)(i) can prescribe those functions, in addition to those covered by section 15 (which are already included under the Act), to which the powers of intervention might apply. Those under section 17(1(b)) can prescribe those arrangements, other than those in section 15 (delegation and pooling), that Ministers may want to direct a local authority or NHS body to take. Section 17 also allows Ministers to set out in a direction any other function in respect of which action should be taken if it would contribute to the improvement in performance of the section 15 function or one prescribed as above. That 'secondary' function does not need to be from the list of functions prescribed.

6.3 Section 17 already allows Scottish Ministers to intervene in relation to functions set out in regulations under section 15 or one of those additional functions prescribed for section 17(1(a (i)). The range of functions intended to be covered under section 15 is already extensive, as set out in section 5 .But the scope for intervention, should failure be an issue, should obviously run wider than the range of functions suitable for delegation. That wider expanse has already been identified in connection with the payments provisions in sections 13 and 14. Ministers plan therefore to adopt that range for these purposes. They do not intend at this stage, because of their agreement to limit implementation to community care in the first instance, to identify complementary activity such as education services that can have an effect on the performance of community care functions. The planned scope set out below includes the functions already identified for delegation and pooled funding under section 15 of the Act and the additional functions proposed for section 17(1)(a)(i):

Your views are invited on whether this is an appropriate list of functions.

Directing partners on arrangements other than delegation etc

6. 4 Section 17(1)(b)(ii) requires Ministers to set out in regulations the kinds of additional arrangements that they can prescribe under a direction. Ministers made clear in the course of the Bill that these were reserve powers, and that although they had no plans for their early use they think it would be useful to set out the direction of their thinking. They would clearly look to examine on its merits the situation leading to any possible direction on arrangements.

6.5 However, should they ever wish to do so it would be time-consuming to introduce regulations on the range of possibilities during that process. There is advantage, therefore, in the Ministers setting out now the kind of arrangements that could be employed in a direction.

6.6 The meaning of the expression "arrangements" is not confined by the 2002 Act. It is intended to allow for a wide range of local disposals which best meet local needs. The kinds of 'arrangements' that we would wish to include in the regulations are set out below. They reflect the emphasis on the Joint Future Agenda.

• Joint arrangements for the assessment and care management of individuals. This would cover Single Shared Assessment, Care Programme Approach, and the emerging work under the redefinition of 'Care Management'.

• Joint planning arrangements (this could cover both the infrastructure to enable joint planning and the result of it in the shape of strategic agreements).

• Joint management arrangements. These are illustrated in circular CCD7/2001, and could include high level joint management (e.g. a committee or partnership), joint resourcing (which in this context would refer to 'aligning' of budgets (since pooling is covered by section 15); and single management (at either locality or area level, or both).

• Joint assessment of aggregate needs for services.

• Joint commissioning of services.

• Delivering services jointly. (This would mean the delivery of services in an integrated way e.g. rapid response team, homecare services generally, equipment and adaptations etc). It would also include staff enabled to perform generic roles - eg home care staff covering both health and social care duties, and the joint training to support staff to fulfil these roles.

• Joint use of premises and facilities. This would cover the more effective use of locality facilities eg an office and its infrastructure, single access points to services, and the development of "one stop shops" for community care services.

• Joint information systems. (This would cover both the retention of information within and the exchange of information between agencies).

• Joint arrangements for the effective management of transitions between agencies (eg hospital admission and discharge, especially delivering on measures to improve delayed discharge set out in Local Joint Action Plans)

• Joint arrangements to secure value for money. This would mean at one level having regard to the principles of Best Value or at another, using tools such as the Resource Use Measure (RUM) when implemented to assist local decision making.

• Joint arrangements to improve access to services. Unlike the structural elements in joint services, this is about minimising waiting times between referral and assessment, and between assessment and delivery of service.

• Joint arrangements for measuring and reporting on joint activity. This reflects the changing direction towards jointness. It could mean the Joint Performance Information and Assessment Framework (JPIAF) on which we are consulting, and its extension to other fields.

6.7 The evolutionary nature of community care and more particularly the joint working agenda will mean that new approaches will emerge from time to time and will have to be added to these regulations.

Your views are invited on whether this is a comprehensive list of arrangements that might be applied in a direction to a NHS body or local authority.

7. Conclusion

7.1 This consultation paper sets out the proposals on the key functions, conditions and arrangements which need to be included in the regulations to enable local authorities and NHS bodies to work together in partnership to deliver improved results for people using community care services.

7.2 Your views are invited on the content of this paper. In particular, we would like you to focus on :

• the functions applicable to payments under section 13;
• the conditions applicable to payments under section 13;
• the functions applicable to payments under section 14;
• the conditions applicable to payments under section 14;
• the functions applicable to delegation etc under section 15;
• the conditions and arrangements applicable to delegation etc under section 15;
• the functions applicable to interventions under section 17; and
• the other arrangements applicable to a direction under section 17

7.3 Copies of responses will be made available in the Scottish Executive library. We will assume that responses to this paper may be made publicly available unless you request confidentiality.

7.4 Responses should be sent to Linda Watters at either linda.watters@scotland.gsi.gov.uk or in writing to Joint Future Unit, Scottish Executive, Community Care Division 2, 3ER, St. Andrew's House, Regent Road, Edinburgh, EH1 3DG (0131 244 5424). Additional copies of this paper are available from Linda Watters or on the Scottish Executive web site at…. http://www.scotland.gov.uk/views/views.asp

APPENDIX 1

A. "COMMUNITY CARE" FUNCTIONS OF NHS BODIES

1. Sections 18, 36, 37, 42 and 45 of NHS Scotland Act 1978

Section 18 lays a duty on Scottish Ministers to provide general medical, dental, ophthalmic services and pharmaceutical services.

Section 36 lays a wide-ranging duty on Scottish Ministers to provide hospital accommodation, including accommodation at state hospitals; premises other than hospitals for any functions under the Act and medical, nursing and other services. This obviously covers the vast majority of activity which is relevant to the regulations. Section 37 lays a duty on Scottish Ministers to make arrangements for the prevention of illness, the care of persons suffering from illness and the after-care of such persons. Section 42 gives Scottish Ministers the power to disseminate information relating to the promotion and maintenance of health and the prevention of illness .

Section 45 places a duty on Scottish Ministers to provide ambulance services.

Section 4 enables a local authority to make arrangements with another local authority, a voluntary organisation or a person who can assist with the performance of the local authority function. Section 5A gives Scottish Ministers the power to direct local authorities to prepare and publish plans for the provision of community care services in their area. Section 5B gives Scottish Ministers the powers to require local authorities to establish complaints' procedures. Section 12 places a general duty on all local authorities to promote social welfare by providing advice, guidance and assistance and providing adequate facilities for these services.

Section 12A places a duty on local authorities to assess the community care needs of any person living in their area and to decide whether they need community care services.

Section 12AA places a duty on local authorities if requested to do so by a carer to assess the ability of that carer to provide and continue to provide care to a person eligible for community care services.

Section 12AB places a duty on local authorities to notify a person who appears to a carer that they may be entitled to an assessment of their ability to care under section 12AA.

Section 12B and 12C give local authorities the power to make direct payments in respect of community care services. Section 13 gives local authorities the power to assist persons in need in disposal of produce of their work. Section 13A places a duty on local authorities to provide residential accommodation with nursing. Section 13B enables local authorities to make provision for care and after-care or do to do so when directed by Scottish Ministers. Section 14 places a duty on local authorities to provide home help and laundry facilities. Section 59 places a duty on local authorities to provide residential accommodation. Section 87 enables local authorities to recover charges for services and accommodation.

2. Sections 1 and 2(1) of the Chronically Sick and Disabled Persons Act 1970 as amended by the Chronically Sick and Disabled Persons (Scotland) Act 1972.

Section 1 places a duty on local authorities to provide information as to the need for and existence of welfare services. Section 2 places a duty on local authorities to provide welfare services including practical assistance in the home; assistance in, travelling to and from the home for the purpose of participating in any services provided; assistance in carrying out any works or adaptation in the home or additional facilities required for greater safety, comfort or convenience; the provision of meals. 3. Section 8 Disabled Persons (Services, Consultation and Representation) Act 1986 Section 8 places a duty on local authorities to take into account abilities of the carer when assessing the needs of a disabled person receiving care at home. 4. Sections 47 and 48 of the National Assistance Act 1948. Section 47 enables local authorities to place people living in insanitary conditions, who are unable to look after themselves, and are not receiving proper care, in suitable accommodation. Section 48 places a duty on local authorities to provide temporary protection for property of persons admitted to hospitals etc. 5. Disabled Persons (Employment) Act 1958 - section 3 Section 3 gives local authorities the power to provide sheltered employment . 6. Sections 7, 8, 9 and 11 of Mental Health Scotland Act 1984 Section 7 sets out the functions of local authorities in relation to anyone who is or has been suffering from a mental health disorder. Section 8 places a duty on local authorities to provide after-care services for anyone who is or has been suffering from mental disorder. Section 9 places a duty on local authorities to appoint sufficient mental health officers and includes a provision that all mental health officers must be approved by local authorities. Section 11 places a duty on local authorities to provide or secure the provision of suitable training and occupation for anyone over school age suffering from a learning disability. 7. Section 10 of the Adults with Incapacity (Scotland) Act 2000

Section 10 sets out the functions of local authorities in respect of the supervision of guardians - there are investigative powers too - see the consultation paper.

Sections 1 - 8 of part I includes the duties and powers of local authorities in relation to the provision of housing. Part II places duties on local authorities in respect of homelessness and threatened homelessness. Part III gives local authorities powers to make grants in respect of improvements, repairs and conversions.

9. Part 1 of the Housing (Scotland) Act 2001

Part 1 includes the duties of local authorities in respect of homelessness and allocation of housing.

10. Sections 4, 5, and 6 of the Community Care and Health( Scotland) Act 2002 insofar as they apply to Supporting People Grant

Section 4 enables local authorities, through regulations made by Scottish Ministers, to recover payments for accommodation which is more expensive than usually provided.

Section 5 places duties on local authorities in respect of arrangements for residential accommodation outwith Scotland.

Section 6 allows local authorities to enter into agreements to defer payment of accommodation costs.

Joint Future Unit
August 2002