Scottish Government

PART TWO: IMPACT OF POLICY, CURRENT PRACTICE/PROCESSES, COSTS & FUNDING

6. THE WIDER IMPACT, WHAT'S WORKING & WHAT'S NOT

"The Review Group considers that Free Personal & Nursing Care should be an entitlement for everyone assessed as needing this level of care and support."

6. THE WIDER IMPACT, WHAT'S WORKING & WHAT'S NOT

The Review Group considers that Free Personal & Nursing Care ( FPNC) should be an entitlement for everyone assessed as needing this level of care and support.

In addition to the funding issues we address elsewhere, variable practice in assessment and delivery and interpretation of legislation and guidance mean there are a number of practical issues which the Scottish Government and COSLA need to address in stabilising the policy in the short-term and ensuring that entitlement is met and care needs actively managed. We recommend that:

• Local authorities and their health partners should consolidate standardisation of assessment for and delivery of services, to common and clearly stated target waiting times;
• The Scottish Government should establish clear national priorities and outcomes for older people. There should be a specific reference to the wellbeing of older people included within its 15 National Outcomes set out in its National Performance framework;
• Expectations are clarified by renewing efforts to improve public information and understanding of the policy and of what people can expect to receive in support services from local authorities, including non-personal home care services. A clear understanding of shared responsibility needs to be fostered and the distinction between "care" costs and "living" and "accommodation" costs made clear; and
• Cross-border and boundary issues are addressed by concluding work to ensure greater consistency in the interpretation and application of Ordinary Residence legislation and guidance without further delay. This would prevent further costly and time consuming disputes between local authorities over which authority should meet the costs of FPNC in the case of cross-border or cross-boundary placements.

Impact of the policy - how it has measured-up to the original vision

45. When the Royal Commission conducted its work, around 10 years ago, there was already a heightening awareness of the needs of older people in Scotland, along with some good practice in the development of joint working in the provision of services among agencies. Significant changes were being made to various aspects of community care and in some parts of Scotland we were already moving in the direction of free personal care.

46. However, the system in place was complex and in many ways, including charging policy, varied widely across Scotland. There was a lack of clarity as to what people could expect and too many people had little choice in their care and ended up in residential accommodation when it may not have been the best option for them and when, with the right support, they may have been able to stay in their own home.

47. FPNC was one aspect of a series of measures aimed at improving the delivery of long term care implemented by the Scottish Executive in the early 1990's, which need to be viewed in the round. It is important to remember how far we have come in a decade. However, rather than focussing on the availability and cost of the broader range of good quality community care services, the public and political debate has become centred, unhelpfully and almost exclusively, around the issue of free personal care.

48. The FPNC policy aimed to ensure that older people had access to high quality and responsive long-term care in the appropriate setting and on a fair and equitable basis. The evidence and research shows that in the large part, the policy has been successful in meeting its aim; it has proved popular and continues to attract widespread support. To that extent:

• Some 50,000 older people across Scotland are currently benefiting;
• There has been a Scotland-wide increase in the demand for care at home;
• The vast majority of recipients receive their payments or personal care services without undue delay or complication;
• The availability of free services has done much to address the stigma of social care and to address unmet need; and
• Choice and control for service users has been increased.

49. However, the variability in provision across Scotland and a relatively small number of high profile cases highlighted in the media have, to a degree, over-shadowed this success and will continue to undermine the policy if not addressed. FPNC services are not delivered in isolation and in most local authorities the services sit within the broader range of community care services. And that is as it should be. They are not an optional extra, but a key and vital aspect of long-term care.

50. The original vision of a fair and transparent system of state support around which people can have clear expectations should not be lost sight of. We need to tackle the funding problems, the variable levels of provision from one local authority to another and the failure to monitor, cost and plan for the future at a strategic level. Greater national consistency in standards and expectations can be achieved without compromising local decision making as local authorities move to an outcomes based funding arrangement with central government and agree their first Single Outcome Agreements in the next few months.

Variable Practice Issues

51. In considering the sustainability of the policy, we have also looked at the practical experience of its implementation over the past 5 years. The report from the Auditor General, oral evidence from the Chief Inspector of Social Work and insights from our own visits to local authorities confirm that a number of local authorities have tightened their eligibility criteria for access to FPNC since 2002 or are operating other arrangements, such as waiting lists, to help manage demand.

52. It is an accepted principle of social care policy that local authorities will manage their resources to focus first on supporting those people who are in most urgent need. However, as the older population has grown over recent years, the profile of what are considered to be 'normal' social care services has also changed: focusing less on domestic home care services and more on intensive home care packages. That change is evident in all parts of the UK and is not unique to the impact of the FPNC policy in Scotland. One consequence of this is a very wide variation in the cost of provision of care packages.

53. However, access to FPNC is an entitlement and once an individual has been assessed as requiring FPNC they should get those services within a reasonable time. The 2002 Act provides that where a person has been assessed as having personal care needs, those services will be provided without charge. We do not believe it should be necessary in the immediate term to have recourse to legislation to address variable practices, except possibly in respect of food preparation, where there have been real problems with the interpretation of the current legislation. It ought to be possible to streamline and simplify service provision, building on the best practice that is already evident to achieve better outcomes. Practices which effectively "ration" those services, without effective care management, are counter to the founding principles of the policy and have implications for its long-term sustainability.

54. In securing the FPNC policy in the longer-term it is crucial that levers currently used to control demand, such as waiting lists, delays in assessment and tightened eligibility criteria for care services are transparent and do not inappropriately restrict legitimate access to care services. In the medium term it may be necessary to look at the clarity of legislation on these issues, as part of the wider review of the policy.

55. In general, we consider that the majority of councils are operating arrangements in an appropriate way and our recommendations on additional funding should help sustain this. In the minority of cases, where minimalist interpretations are applied, additional funding should help re-stabilise their implementation of FPNC. Our recommendations aim to ensure that:

• Clients and their carers can have a clear understanding of their entitlement and the services and minimum standards they can expect to receive no matter where they live in Scotland; and
• In the delivery of those services, local government is clear on the outcomes it is expected to achieve.

56. In addition, the separate detailed work on implementation and interpretation issues by the Scottish Government and COSLA Working Groups will make recommendations to Ministers on the key practice or variability issues of concern. But we heard a lot of evidence on these matters and would want to record the following in that regard:

Waiting Lists

56.1 Evidence provided by local authorities for the Hexagon Evaluation indicated that relatively small numbers of people were waiting for FPNC in most areas of the country. Where people were waiting, delays were most often related to a lack of capacity in care homes (or the care homes of a person's choice) or a lack of provision for particular home care services. Fewer than might be expected cited financial resources as the specific cause of people waiting for assessed FPNC needs to be met. However, inconsistency is a serious concern which is adding disproportionately to misconceptions about entitlement.

56.2 The Hexagon Evaluation, local authority Peer Review and other evidence offered during our Review identified practices by local authorities to avoid or reduce waiting lists, for example by setting eligibility criteria at a level that focused FPNC on those with higher level care needs or in a few extreme cases, on only those clients considered at "critical" risk, or by redirecting resources from other budgets to meet FPNC costs. In all cases local authorities indicated that decisions were based on the priority of client need (no high priority clients would be left without services) and that there is continuing active management of clients on waiting lists.

Macphail Ruling

56.3 The issue of waiting lists was recently considered in the Court of Session in the Argyll & Bute Council/Scottish Public Services Ombudsman ( SPSO) case on which Lord Macphail ruled in October 2007. The case centred on a complaint to the SPSO by the family of the late Mr William McLachlan, to the effect that the council had failed to provide FPNC services in good time. Lord Macphail upheld the local authority's argument and ruled that it was not possible to interpret the legislation as obliging a local authority to make payments for personal care which was not provided by them. However, he also rejected the council's argument that the Act did not impose upon local authorities an obligation to make any payment.

56.4 Lord Macphail's ruling was that while the legislation was unusually complex, it implied that a local authority was entitled to make payments in respect of personal care in accommodation provided by them. That does not mean that people who organise their own care are not entitled to FPNC, only that a local authority has to assess the individual and have a contract with the provider in place before FPNC support starts. The Government's view is that the ruling is consistent with the existing consolidated guidance ⁶ on FPC, issued in July 2003, and with the way in which local authorities have operated the legislation. However, we acknowledge continuing concern amongst local authorities about the need for greater clarity on these issues.

56.5 As in the NHS, practical issues of capacity and choice do not allow for waiting for services to be eradicated entirely (especially for those whose needs require more complex or intensive care packages). Local authorities need to be able to manage the delivery of services to target those in greatest and most urgent need. Whilst waiting lists are a necessary part of the policy, the Review Group considers that it ought to be possible to address the problems of inconsistency in the use of waiting lists across Scotland. We recommend that local authorities adopt a standard target for the maximum timescale from confirmation of need to delivery of service. Consideration should be given to the 6 week delayed discharge timescale as a potential existing model/target for standard timescales.

Eligibility Criteria

56.6 The issue of short-term waiting lists is linked to the wider issue of eligibility criteria for community care services. Eligibility criteria are the primary way in which local authorities "ration" or restrict access to services within their available budgets. The Hexagon Evaluation concluded that differences in eligibility criteria between local authorities make it difficult to establish comparable data on the numbers of people waiting for community care services eligible for FPNC and we have found that to be the case. The Auditor General's Report found wide variation in the thresholds local authorities have in place for determining whether they will provide care services and from the evidence we have, it appears that over half currently ration access and a number do not provide services to people with moderate or low care needs or even record them as formally waiting for care services.

56.7 The FPNC legislation was not concerned with the provision of minimum eligibility criteria for services, but rather to define those services for which clients should not be charged. Previous legislation, ⁷ pre-dating FPC, places the responsibility on each local authority to assess an individual's requirement for community care services, based on need and risk. The Hexagon Evaluation recommended the need to establish more consistent information between local authorities on the relative criteria for prioritising access to services and on levels of unmet demand. That recommendation was reaffirmed in the Auditor General's report and in much of the evidence we heard directly.

Food Preparation

56.8 Inconsistencies in practice and interpretation in the operation of the policy in terms of charging for food preparation for older people receiving personal care in their own homes has been another key area of concern raised with us. There is shared agreement on the need for greater clarity on these issues and we were pleased to learn that Scottish Ministers have said they are willing, in principle, to consider legislative changes to address the issue if a consistent definition can be agreed. Despite revised Scottish Government guidance in May 2006, the issue of the extent to which local authorities can charge for the preparation of food remains unresolved and there is shared agreement that the terms of the legislation and the original Care Development Group report, on which the legislation was based, lacked sufficient clarity on the issue of food preparation.

56.9 It is acknowledged that local authorities have applied different interpretations to the legislation and some have changed their position, as a matter of policy or in response to local pressure. At the time of writing, 8 local authorities were still charging for food preparation and a number who had ceased charging were making back-payments to clients for previous charges made.

56.10 The Review Group considers that food preparation is another implementation difficulty which is undermining the operation of the policy. It believes that the original intention of the policy was to provide this service free, where there is an assessed need. In that regard, local authorities should work within any new legislation or guidance that may come from the Scottish Government, to determine and apply a consistent Scotland-wide approach and to avoid any further recourse to charging.

57. While the above issues will primarily be for the Scottish Government and COSLA groups to address, we consider the following issues to be crucial in stabilising the policy and have therefore included them in our recommendations.

Consolidating standardisation of assessment & delivery

58. In order to address the current inconsistencies and ensure that access to services is consistent across Scotland, the Review Group considers that local authorities should work together and with their partners to move away from variable eligibility criteria towards standardisation of assessment and more active care management. It recommends that they should do that by:

• Determining need by applying the Single Shared Assessment Approach ( SSA Approach); and
• In delivering services, working together to agree and develop a common Scotland-wide framework, encapsulating minimum standards and maximum waiting times to prioritise service provision according to needs and risk.

59. The standardisation of the content of the various stages of assessment and care management is a pre-requisite for the effective recording and appropriate sharing of information for the benefit of people receiving community care services and support. It also offers a way of tackling the inconsistent use of eligibility criteria and prioritisation away from lower levels of care needs which are over-shadowing the success of the FPNC policy.

60. A Scotland-wide, consistent application of a common approach to needs assessment, care planning, care management and review would ensure greater consistency between local authorities and, would enable the adoption of standard maximum waiting times. It would also have the benefit of recording and retaining sight of individuals with less urgent care needs, of ensuring transparency, and of improving understanding of entitlement. Ultimately, decisions on the response to assessed needs are a matter of professional judgement, but they may be informed by additional material, such as dependency levels in the Indication of Relative Need ( IoRN).

61. The Flow Diagram below illustrates how the joint assessment, care planning and review pathway (incorporating care management) for all adults in Scotland (the SSA Approach) should be undertaken, and how free personal care for older people is integral to that process. Most local authorities already operate on this basis. Its adoption across the board as part of our recommendations would address the inappropriate restrictions on access to personal care services in a small minority of authorities.

FLOW DIAGRAM OF EXPECTED APPROACH TO ASSESSMENT AND CARE MANAGEMENT

Notes:
1. Simplified flow diagram to illustrate process for majority of people.
2. * Indicator of Relative Need. The outcomes from IoRN should be used to confirm that individuals' levels of needs reflect the levels of service provided. This information can be used to inform resource provision at an individual, team or partnership level.
3. The outcome of a carer's assessment will also inform levels of resource allocation.
4. ** In some areas this may be described as unmet need.

Standardising Access: Single Shared Assessment Approach

62. The context of social care has been changing dramatically in recent years and many initiatives, including the FPNC policy have had a significant impact and are viewed as part and parcel of an increasing emphasis on care in the community. A key development and one which the CDG thought would be fundamental in the operation of the FPNC policy, has been the roll out of the SSA Approach.

63. Although now widely implemented and seen by most local authorities and their care planning/delivery partners as central to the assessment and care management framework, the SSA Approach is still evolving. Its implementation calls for social work, health and housing to review jointly their existing assessment systems and practices and consider how they can build on the best of these and integrate them to achieve a single, shared system.

64. The SSA Approach aims to achieve better outcomes for people who use community care services and their carers by improving the efficiency of the assessment process, and linking the service user with the most appropriate professional to take the lead in co-ordinating assessment and care planning. It sits well with the outcomes approach for local government funding and is a model already widely adopted which is being applied Scotland-wide to standardise assessment. The Review Group recommends that the SSA Approach is adopted as the standard means of determining entitlement to care services - the first aspect to the assessment and care management pathway illustrated in the Flow Diagram above - and that its roll out across Scotland is accelerated.

NHS Continuing Care & Ordinary Residence Guidance

65. Two other areas of concern relating to practice and in particular the working of legislation were raised with us and we have chosen to include them in our review: confusion about eligibility and funding for NHS continuing health care and disputes over "ordinary residence". Both have been the subject of many of the complaints received by the Scottish Public Services Ombudsman ( SPSO) in relation to long-term care and both have been governed by guidance which dates back to 1996.

66. Many of the problems with the former have related to the operation of the MEL 1996(22) Scottish Office guidance which until very recently remained in force and unamended. It failed to take account of changes in the period, which included major shifts in the way the NHS is organised, how care is provided and the supporting statutory and policy context. The SPSO told us that most complaints she received in this respect centred on the common themes of dissatisfaction associated with the process of being assessed for and obtaining this care and a lack of transparency and inconsistency around decisions made.

67. New guidance on NHS Continuing Health Care was recently issued by the Scottish Government. CEL 6 (2008) issued on 7 February 2008, replacing the previous guidance with immediate effect. Although it does not alter existing NHS responsibilities for continuing health care, it up-dates and clarifies the guidance to take account of legislative and policy changes in care provision and aims to promote a consistent basis for the assessment and provision of NHS continuing health care and to ensure provision is based on robust and transparent assessment and decision making processes based on the SSA Approach.

Ordinary Residence

68. The working of cross boundary or cross border placement arrangements was raised with us by the SPSO and by local authorities, who thought that a legal clarification of the term "ordinary residence" was long over due. Disputes over the ordinary residence of a person who moves between council areas or from another part of the UK to Scotland or where 2 local authorities cannot agree on an interpretation of the free personal care guidance on the Social Work (Scotland) Act 1968 definition of "ordinary residence" can be costly and time consuming to resolve. It is evident that disputes about ordinary residence in relation to FPNC are most common in cross border placements and when an individual decides to move to a care home of their own volition.

69. A local authority can recover the cost of providing accommodation and services under the Social Work (Scotland) Act 1968 from the local authority in which an individual is ordinarily resident. This situation arises for example, where an individual is assessed as needing a care home place and rather than going into a home in the vicinity of their own home, they ask the local authority carrying out the assessment to place them in a care home in a different area to be near relatives or friends. When local authorities fail to reach agreement as to which one should pay for the care and/or accommodation, they can apply to Scottish Ministers for a determination of ordinary residence. The current guidance on ordinary residence is set out in Social Work Services Group ( SWSG) Circular 1/1996. ⁸

70. A review of the guidance to address concerns about the lack of clarity in the legislation and guidance and to take account of changes in the provision of care such as the use of supported accommodation and the introduction of FPNC has been on-going for some time. As a result, some amendments to the 1968 Act were included in the Adult Support and Protection (Scotland) Act 2007 and a working group has been assisting the Scottish Government with the development of new regulations and revised guidance to address the remaining areas of concern. We understand that the working group has been focussing on:

• Regulations under the new section 86(6) of the 1968 Act, setting out the circumstances in which the costs of providing services in settings other than care homes can be recovered;
• Revised guidance including, the scope of new regulations and a clarification on when costs can be recovered from the local authority of ordinary residence; and
• Cross border regulations and associated guidance, which will involve working with the Administrations in England, Wales and Northern Ireland.

71. The scale of the problem is not huge and quantifying it in terms of costs is difficult, again due to the lack of detail down to this level held in local authorities' information systems. Of the 9 councils who raised this as a concern in returns to Audit Scotland, only 5 were able to provide details of numbers of clients and the costs involved. The costs which were reported were relatively small. However, the Review Group considers that this work should be progressed without further delay to ensure greater consistency in the interpretation and application of ordinary residence legislation and guidance and to prevent further costly and time consuming disputes between local authorities over which authority should be meeting the cost of an individual's FPNC.

72. The Review Group also heard anecdotal evidence which suggested that the social trend towards retirement abroad may have an impact on the operation of the ordinary residence legislation and guidance in the future, as increasing numbers of this "ex-pat" group may elect to return to the UK should they find themselves in need of personal care as their health deteriorates. Detailed evidence of the impact will be required and we would recommend that this is kept in view and possibly included in the review and re-modelling we are recommending within the next 5 years.