Evidence gathering on the National Care Service (Scotland) Bill

This article was originally published in the January 2023 edition of Stronger, the ALARM journal.

By the end of 2023 Scotland is expected to have agreed the legal basis for a National Care Service, the first of its kind in the UK. The complexities and controversies of establishing a ground-breaking care service are now being experienced.

The Scottish Government has committed to establishing a functioning National Care Service (NCS) by the end of the parliamentary term in 2026[1]. On 20 June 2022, the Scottish Government introduced the National Care Service (Scotland) Bill[2] (the Bill) to the Scottish Parliament, which is presently in Stage One of a three-stage process through Parliament. Parliament agreed that Stage One of the National Care Service (Scotland) Bill will be completed by 17 March 2023, and amendment will be addressed in Stages Two and Three. The final vote of Parliament will be taken at Stage Three, with Crown consent expected to be signified thereafter.

The Bill’s purpose, as stated in the accompanying Policy Memorandum, is to improve quality and consistency of care services by centralising responsibility with Scottish Ministers for promoting, monitoring and improving care, via a single NCS. The NCS is described by Scottish Government as ‘one of the most ambitious reforms of public services since the creation of the National Health Service’[3]. However, this proposed reform has proven controversial.

Implementation of the NCS will take time but Parliamentary scrutiny of the Bill, and of secondary legislation it enables, will be kept carefully under review. Lawyers, policymakers and politicians south of the border are following this Bill with interest too.

The context

The Promise[4], published in February 2020, was a key report of the Independent Care Review on children’s services, aimed to be the last care review which Scotland needed for children’s services. Councils committed to #KeepingThePromise and, as the Convention of Scottish Local Authorities (COSLA) reported in Two Years On… Local Government’s Work to #KeepThePromise[5], a great deal of important work has been undertaken, and is ongoing, in response to The Promise’s call to action. The Promise, however, made no recommendation for a NCS for children’s services.

Separately, in February 2021, the Independent Review of Adult Social Care[6] (IRASC) recommended an NCS to overcome any ‘postcode lottery’ of service provision, to simplify complex governance, facilitate strategic collaboration and leadership, and move from a service reacting to crisis towards crisis prevention. In keeping with the review’s remit, this recommendation addressed adult services only.

Neither the IRASC nor indeed the Bill seeks to define what constitutes ‘care’. Nonetheless, the potential ambit of the NCS envisaged by the Bill includes fostering; adoption; criminal justice; management of offenders; human trafficking and exploitation; adults with incapacity; mental health; and drug and alcohol services.

The inclusion of children’s and justice services in the proposed NCS at the time of the pre-legislative consultation in August 2021 was met with widespread surprise and, from COSLA, with disappointment around the lack of collaboration with local government in devising proposals which deviated significantly from the more limited IRASC recommendation.

The National Care Service (Scotland) Bill

The Bill is a framework or enabling bill, addressing principally the establishment of the NCS and the new care boards through which its functions can be operated. It then creates powers to enact secondary legislation. That secondary legislation will address the nature and extent of functions and services to be transferred from councils and/or health boards to Scottish Ministers or to care boards, and the way in which they would be transferred, or the framework within which those services would then be delivered. It is entirely possible that not all powers will be used, and not all possible functions or services will be transferred. Until the detail of that secondary legislation is known, there remains a great deal of uncertainty over what the form of the NCS will be.

Under the Bill as it stands, Scottish Ministers, or care boards directed by Scottish Ministers, would fulfil those functions Scottish Ministers choose to transfer from councils or health boards to themselves or care boards. Scottish Ministers or care boards could procure services from external providers or directly employ local workforces. This could include TUPE transfer of council employees, but not employees of third sector providers or health boards. It could also include a transfer of assets (potentially including existing premises) from those currently exercising functions to Scottish Ministers or care boards. Care boards will be required to comply with directions given by Scottish Ministers. Scottish Ministers can remove care board members if they are satisfied they have failed to carry out their functions, which would include a failure to carry out Scottish Ministers’ directions.

Matters not yet addressed fully within the Bill include:

Governance structures.
Control or management of the vast quantity of relevant data around the most sensitive and confidential aspects of service users’ lives.
The detail of managing liabilities currently borne by councils or health boards in relation to transferred functions.

Given this is a framework Bill, some key issues on which stakeholders will want resolution or clarity may not be addressed in this Parliamentary process, and will only be tackled in the secondary legislation which follows.

Those issues include, but are by no means limited to:

The services to be included within NCS, and in particular whether children’s services will be included.
The extent to which local authority workforces will be transferred into the NCS, and what this will mean for their terms, conditions and indeed pensions.
The shape of services to be co-designed after the new organisational structure is established, governance for these and the role of the proposed National Social Work Agency.
How existing and new liabilities will be managed in relation to transferred functions, including the insurance arrangements for these.
How data will be managed, including what will be captured, by whom and how it will be controlled, and how data sharing arrangements might be operated.

The legislative process

The scale of responses to the pre-legislative consultation and the legislative call for evidence demonstrate the highly active engagement of stakeholders, with over 200 respondents agreeing to their views being published[7].

In addition to considering the written evidence submitted, whether published or submitted in private, the Health, Social Care and Sport Committee of the Scottish Parliament has also now begun the process of hearing evidence[8] on this Bill at Stage One of the Holyrood legislative process[9], as lead Committee for the Bill. The
Committee will consider the general principles of the Bill and will either recommend these to Parliament, or not, before amendment of the terms of the Bill is considered.

In the meantime the Finance and Public Administration Committee[10] (FPAC) issued its report on the supporting Financial Memorandum. This was critical of the lack of detail provided in the Memorandum, and of clear gaps in costings, resulting in a conclusion that "the Committee finds itself unable to assess the affordability of the Bill". The FPAC has called upon the Scottish Government to furnish a new Memorandum no later than two weeks before the Stage One debate, as a prerequisite of effective scrutiny of the Bill.

In evidential sessions in relevant committees, and in published responses to the call for written evidence, the basic premise of a desire to improve quality and consistency of care, not only to drive improvements in health outcomes but also to improve wellbeing and promote thriving communities, has been lauded. Nonetheless some key questions have been posed for the Committees to answer.

Parliament has been challenged to consider the evidential basis, or support in available data, for a conclusion that fundamental organisational change is needed.

In light of this, the Scottish Government has been tasked by the FPAC with providing fuller costings to allow an effective cost/benefit analysis of the proposed changes, including the transitional costs of, for example, information integration and harmonisation of terms and conditions of transferred employees.

A fundamental issue for certain stakeholders is the apparent emphasis on central control and consistency over local knowledge or accountability and individualised service provision. Central control of a mixture of locally procured and employed service providers may create a multi-tier governance structure, and differing terms and conditions for workers.

Questions have been raised as to how to achieve consistency in care access and quality with such widely differing communities, locations and demographics.

Further, comments have been made around the risk of a wide divergence on the nature and quality of data captured on services to date as a starting point. The Finance Committee has also been warned of the potential transitional costs of two schemes running in tandem as the NCS is established.

The future

COSLA has expressed concern over the impact of the Scottish Government's proposed plans on the future shape of local government, with the potential for removal of decisions around locally delivered social care services away from local communities to Edinburgh[11].

The final shape of the NCS system is not clear; the Bill gives Scottish Ministers powers, but whether and how these will be used is currently uncertain. It is the express intention of Scottish Government to work with service users to design an effective system, and the Bill identifies key principles to act by, including recognising care services as an investment in society, focusing on early intervention to prevent or reduce care needs, and promoting dignity and equality.

There is also ongoing research intended to assist in devising that final shape. Following the widely voiced concerns over the lack of any evidential basis for the inclusion of children’s services in the NCS, Professor Brigid Daniel, the Professor Emerita at Queen Margaret University, has been appointed to chair a group at the University of Strathclyde’s Centre for Excellence for Children’s Care and Protection (CELCIS), which has been commissioned to look at effective delivery of children’s services and to provide a detailed report on where these should sit after establishment of the NCS. The timeline for completion of that research is not clear.

While the Bill demonstrates the Scottish Government’s commitment to creating an NCS, there remains uncertainty over the detail of that service, and there are significant reported concerns around the funding of the future service. A key issue for the sector is an ability to offer terms and conditions which will assist in retaining employees in a workforce undertaking demanding and difficult work.