HEALTH AND SPORT COMMITTEE AGENDA. 18th Meeting, 2018 (Session 5) Tuesday 5 June 2018

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1 HS/S5/18/18/A HEALTH AND SPORT COMMITTEE AGENDA 18th Meeting, 2018 (Session 5) Tuesday 5 June 2018 The Committee will meet at 9.00 am in the James Clerk Maxwell Room (CR4). 1. NHS Governance (in private): The Committee will consider a draft report. Not before am 2. Subordinate legislation: The Committee will consider the following negative instruments Ethical Standards in Public Life etc. (Scotland) Act 2000 (ILF Scotland) Order 2018 (SSI 2018/148) National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Scotland) Amendment Regulations 2018 (SSI 2018/151) 3. Pre-budget scrutiny : The Committee will take evidence from Paul Gray, Director General Health & Social Care and Chief Executive NHSScotland, Christine McLaughlin, Director of Health Finance, Shirley Rogers, Director of Health Workforce and Strategic Change, Dr Catherine Calderwood, Chief Medical Officer, and Alison Taylor, Head of Integration Division, Scottish Government. 4. Subordinate legislation: The Committee will take evidence on the Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 from John Wood, Chief Officer for Health and Social Care, and Councillor Peter Johnston, Health and Social Care Spokesperson, COSLA; Morag Johnston, Director of Financial and Business Services, Glasgow City Council, representing COSLA; and then from

2 HS/S5/18/18/A Shona Robison, Cabinet Secretary for Health and Sport, Mike Liddle, Adult Social Care Policy, and Ann Davies, Solicitor, Directorate for Legal Services, Scottish Government. 5. Subordinate legislation: Shona Robison, the Cabinet Secretary for Health and Sport to move S5M That the Health and Sport Committee recommends that the Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 be approved. 6. Subordinate legislation: The Committee will take evidence on the Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2018 [draft] and the ILF Scotland (Miscellaneous Listings) Order 2018 [draft] from Shona Robison, Cabinet Secretary for Health and Sport, Jamie MacDougall, Deputy Director for Care, Support and Rights, and Ann Davies, Solicitor, Directorate for Legal Services, Scottish Government. 7. Subordinate legislation: The Cabinet Secretary for Health and Sport to move S5M That the Health and Sport Committee recommends that the Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2018 [draft] be approved. 8. Subordinate legislation: The Cabinet Secretary for Health and Sport to move S5M That the Health and Sport Committee recommends that the ILF Scotland (Miscellaneous Listings) Order 2018 [draft] be approved. 9. Pre-budget scrutiny (in private): The Committee will consider the evidence heard earlier in the session. 10. Scottish Government draft Suicide Prevention Action Plan (in private): The Committee will receive a briefing ahead of an informal session. 11. Health and Care (Staffing) (Scotland) Bill (in private): The Committee will consider its approach to the scrutiny of the Bill at Stage NHS Governance (in private): The Committee will continue its consideration of a draft report. 13. Scrutiny of NHS Boards - NHS Greater Glasgow and Clyde (in private): The Committee will consider a draft follow-up letter to NHS Greater Glasgow and Clyde. David Cullum Clerk to the Health and Sport Committee Room T3.60 The Scottish Parliament Edinburgh Tel: david.cullum@parliament.scot

3 HS/S5/18/18/A The papers for this meeting are as follows Agenda item 1 and 12 PRIVATE PAPER HS/S5/18/18/1 (P) Agenda item 2 Note by the clerk HS/S5/18/18/2 Agenda item 3 Late paper HS/S5/18/18/3 Agenda item 4 Note by the clerk The Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 COSLA written submission Scotland Against Care Tax submission HS/S5/18/18/4 HS/S5/18/18/5 HS/S5/18/18/6 HS/S5/18/18/7 Agenda item 6 Note by the clerk Equality Act 2010 (Specific Duties) (Scotland) Amendment Regulations 2018 [draft] ILF Scotland (Miscellaneous Listings) Order 2018 [draft] HS/S5/18/18/8 HS/S5/18/18/9 HS/S5/18/18/10 Agenda item 10 PRIVATE PAPER Agenda item 11 PRIVATE PAPER Agenda item 13 PRIVATE PAPER HS/S5/18/18/11 (P) HS/S5/18/18/12 (P) HS/S5/18/18/13 (P)

4 HS/S5/18/18/2 Overview of instruments Health and Sport Committee 18th Meeting, 2018 (Session 5) Tuesday 5 June 2018 Negative Subordinate Legislation Note by the clerk 1. There are two negative instruments for consideration at today s meeting: The Ethical Standards in Public Life etc. (Scotland) Act 2000 (ILF Scotland) Order 2018 (SSI 2018/148) The National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Scotland) Amendment Regulations 2018 (SSI 2018/151) The Ethical Standards in Public Life etc. (Scotland) Act 2000 (ILF Scotland) Order 2018 (SSI 2018/148) Background 2. This Order amends schedule 3 of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ( the 2000 Act ) which lists those bodies that are a devolved public body for the purpose of that Act, and stipulates the time limit for the purposes of section 3(1) of the 2000 Act, both in relation to ILF Scotland. 3. The purpose of this instrument is (i) to list ILF Scotland in schedule 2 of the 2000 Act and therefore require ILF Scotland to submit a draft code of conduct for its members to the Scottish Ministers for approval; and (ii) to stipulate the time limit within which ILF Scotland is required to submit this draft code of conduct. The instrument stipulates that ILF Scotland must submit the draft code by 1 October The Draft Policy Note for the instrument is attached at Annexe A. 4. An electronic copy of the instrument is available at: 5. There has been no motion to annul this instrument. 6. The Committee needs to report by 11 June The Delegated Powers Powers and Law Reform Committee considered the instrument at its meeting on 22 May The Committee determined that it did not need to draw attention of the Parliament to this instrument on any grounds within its remit. Page 1 of 5

5 HS/S5/18/18/2 The National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Scotland) Amendment Regulations 2018 Background (SSI 2018/151) 8. These Regulations amend the National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Scotland) Regulations 2011 (S.S.I. 2011/55) ( the 2011 Regulations ). The 2011 Regulations provide that where a pharmacist provides pharmaceutical services to a patient who presents an English prescription form, that pharmacist must make and recover from the patient the charges specified in the National Health Service (Charges for Drugs and Appliances) Regulations 2015 (S.I. 2015/570) ( the 2015 Regulations ) as at a specified date, unless certain exemptions apply. 9. Regulation 2 amends the 2011 Regulations so that the charge to be made and recovered reflects the rate applicable under the 2015 Regulations as at 1st April The 2015 Regulations were amended by the National Health Service (Charges for Drugs and Appliances) (Amendment) Regulations 2018 (S.I. 2018/201) to make the following charges applicable from 1st April 2018: per item, or per pair, in relation to the supply of elastic hosiery; in relation to the supply of any other appliance; and in relation to the supply of each quantity of a drug. 10. Regulation 3 revokes the National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Scotland) Amendment Regulations 2017 (S.S.I. 2017/231). The Draft Policy Note for the instrument is attached at Annexe B. 11. An electronic copy of the instrument is available at: There has been no motion to annul this instrument. 13. The Delegated Powers Powers and Law Reform Committee considered the instrument at its meeting on 22 May The Committee determined that it did not need to draw attention of the Parliament to this instrument on any grounds within its remit. Page 2 of 5

6 HS/S5/18/18/2 POLICY NOTE Annexe A THE ETHICAL STANDARDS IN PUBLIC LIFE ETC. (SCOTLAND) ACT 2000 (ILF SCOTLAND) ORDER 2018 SSI 2018/148 The above instrument was made in exercise of the powers conferred sections 3(2) and 28(2)(a) of the Ethical Standards in Public Life etc. (Scotland) Act 2000 ( the 2000 Act ). The instrument is subject to negative procedure. Policy Objectives The UK Government closed the UK Independent Living Fund (ILF) on 30 June Scottish Ministers announced their commitment to a new Scottish ILF to safeguard the rights of society s most severely disabled people to live independent lives and to ensure the fund s long term future. On 1 July 2015, Independent Living Fund Scotland (ILF Scotland) was established by Ministers, as a Company limited by guarantee, to administer Independent Living Fund (ILF) financial support packages for disabled people in Scotland. All existing Scottish users of ILF transferred to ILF Scotland from this date. The approach taken to the establishment of ILF Scotland was to meet the tight time frame for delivery and to ensure that payments were protected. At the time of establishment there was insufficient time to list ILF Scotland in various pieces of legislation as a public body. The purpose of this instrument is (i) to list ILF Scotland in schedule 2 of the 2000 Act and therefore require ILF Scotland to submit a draft code of conduct for its members to the Scottish Ministers for approval; and (ii) to stipulate the time limit within which ILF Scotland is required to submit this draft code of conduct. The instrument stipulates that ILF Scotland must submit the draft code by 1 October Consultation Officials have consulted with ILF Scotland and with the appropriate policy officials within Scottish Government. Both support the policy. Impact Assessments No Privacy Impact Assessment (PIA) was required for this instrument because there is no change in how personal data is managed as a result of it. An Equality Impact Assessment (EQIA) has not been completed as the policy approach to impose duties as a public body is consistent with the current ILF UK policies, which have already previously been impact assessed, with no identified negative impact. In assessing the Children Rights and Wellbeing Impact Assessment (CRWIA) requirements, officials have concluded that the legislative proposals are largely procedural and administrative, they are part of a decision making process that will Page 3 of 5

7 HS/S5/18/18/2 affect ILF Scotland only 2 and as such that they have been deemed to have no effect, either direct or indirect on Child Rights and Wellbeing. Due to the technical aspect of this instrument there is no requirement for a Strategic Environmental Assessment. Financial Effects A Business Regulatory Impact Assessment (BRIA) has not been completed in relation to this instrument. The Minister for Health and Sport confirms that no BRIA is necessary as the instrument has no financial effects on the Scottish Government, local government or on business. Scottish Government Directorate for Health and Social Care Integration May 2018 Page 4 of 5

8 HS/S5/18/18/2 Annexe B POLICY NOTE THE NATIONAL HEALTH SERVICE (FREE PRESCRIPTIONS AND CHARGES FOR DRUGS AND APPLIANCES) (SCOTLAND) AMENDMENT REGULATIONS 2018 SSI 2018/151 The above instrument was made in exercise of the powers conferred on Scottish Ministers by sections 69(1) and 105(7) of the National Health Service (Scotland) Act The instrument is subject to the negative procedure. Policy Objectives The Scottish Government abolished prescription charges in Scotland on 1 April Practice since then has been to charge the rate applied in England where a patient presents an English prescription form for dispensing in Scotland (unless the patient is ordinarily resident in Scotland and holds an Entitlement Card issued by a Health Board, in which case no charge will be made). These Regulations make amendments to increase the amount to be charged in respect of an English prescription in line with arrangements in England. The charges currently applied in England are 8.80 for a single item. The charges applied to elastic hosiery are 8.80 for a single item and per pair. The existing exemption criteria arrangements remain ensuring current reciprocal arrangements can continue whereby exempt patients presenting Scottish prescription forms in England can collect their medication free of charge and vice versa. Financial Effects There is no financial effect associated with these amendment regulations. Scottish Government Chief Medical Officer Directorate Pharmacy and Medicines Division May 2018 Page 5 of 5

9 Health and Sport Committee 18th Meeting, 2018 (Session 5) Tuesday 5 June 2018 Subordinate legislation Note by the clerk Overview of instrument 1. The first affirmative instrument for consideration at today s meeting is: The Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 (SSI 2018/draft) Background The Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 (SSI 2018/draft) 2. The order is made under section 1(2)(a) of the Community Care and Health (Scotland) Act If approved by the Scottish Parliament, it will come into force on 1 April Section 1(1) of the Community Care and Health (Scotland) Act 2002 ( the 2002 Act ) provides that a local authority are not to charge for social care provided by them (or the provision of which is secured by them) if that social care is: personal care as defined in paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010; personal support as so defined; care mentioned in schedule 1 to the 2002 Act; or nursing care. The requirement not to charge is currently qualified to persons aged 65 or over by the Community Care (Personal Care and Nursing Care) (Scotland) Regulations This instrument will remove the qualification to the requirement not to charge to persons aged 65 or over only. This will ensure adults under the age of 65 who are assessed as needing free personal care, will receive this service irrespective of condition, income or age, including whether they live at home or in residential care. The policy note and associated documents from the instrument are attached at Annexe A. 5. An electronic copy of the instrument is available at: 6. The Committee needs to report by 8 June Page 1 of 40

10 Delegated Powers and Law Reform Committee consideration 7. The Delegated Powers and Law Reform Committee considered the instrument at its meeting on 8 May The Committee determined that it did not need to draw the attention of the Parliament to the instrument on any grounds within its remit. Page 2 of 40

11 POLICY NOTE Annexe A THE COMMUNITY CARE (PERSONAL CARE AND NURSING CARE) (SCOTLAND) AMENDMENT (No. 2) REGULATIONS 2018 SSI 2018 No. XX 1. The above instrument will be made in exercise of the power conferred by section 1(2)(a) of the Community Care and Health (Scotland) Act The instrument is subject to the affirmative resolution procedure. If approved by the Scottish Parliament, it will come into force on 1 April Legal Background 2. Section 1(1) of the Community Care and Health (Scotland) Act 2002 ( the 2002 Act ) provides that a local authority are not to charge for social care provided by them (or the provision of which is secured by them) if that social care is: personal care as defined in paragraph 20 of schedule 12 to the Public Services Reform (Scotland) Act 2010; personal support as so defined; care mentioned in schedule 1 to the 2002 Act; or nursing care. The requirement not to charge is currently qualified to persons aged 65 or over by the Community Care (Personal Care and Nursing Care) (Scotland) Regulations Section 2 gives the Scottish Ministers the power to make regulations to determine what is to be regarded as accommodation provided by local authorities under social work and mental health legislation. That power has been exercised with the effect that persons provided with accommodation by a local authority under the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 are not charged in respect of personal and nursing care up to set figures. Policy Objectives 4. This instrument will remove the qualification to the requirement not to charge to persons aged 65 or over only. This will ensure adults under the age of 65 who are assessed as needing free personal care, will receive this service irrespective of condition, income or age, including whether they live at home or in residential care. Consultation 5. Scottish Government conducted a feasibility study from January 2017 to August 2017, inviting views on proposals to extend Free Personal Care to those aged under 65. Analysis of response to the feasibility study indicated there was widespread support for the policy from members of the public and many campaigning organisations. Page 3 of 40

12 Impact Assessments 6. An Equality Impact Assessment (EQIA) and a Child Rights and Wellbeing Impact Assessment (CRWIA) have been completed on the policy. It was considered that a Privacy Impact Assessment (PIA) was not necessary for this policy. Financial Effects 7. A Final Business and Regulatory Impact Assessment (BRIA) has been completed and is attached. The policy may have financial implications for the Scottish Government, local government and Integration Authorities. Susan Brodie Adult Social Care Care Support and Rights Division April 2018 Page 4 of 40

13 Draft Regulations laid before the Scottish Parliament under section 23(3)(a) of the Community Care and Health (Scotland) Act 2002 for approval by resolution of the Scottish Parliament. D R A F T S C O T T I S H S T A T U T O R Y I N S T R U M E N T S 2018 No. SOCIAL CARE The Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 Made Coming into force - - 1st April 2019 The Scottish Ministers make the following Regulations in exercise of the powers conferred by section 1(2)(a) of the Community Care and Health (Scotland) Act 2002(1) and all other powers enabling them to do so. In accordance with section 23(3)(a) of that Act(2), a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament. Citation and commencement 1. These Regulations may be cited as the Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 and come into force on 1st April Amendment of the Community Care (Personal Care and Nursing Care) (Scotland) Regulations (1) The Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002(3) are amended as follows. (2) Regulation 3 (qualification of requirement not to charge)(4) is revoked. St Andrew s House, Edinburgh Date Name A member of the Scottish Government (1) 2002 asp 5. (2) Section 23(3)(a) has been modified by paragraph 5 of schedule 3 of the Interpretation and Legislative Reform (Scotland) Act 2010 (asp 10). (3) S.S.I. 2002/303. (4) Regulation 3 was amended by S.S.I. 2005/445. Page 5 of 40

14 EXPLANATORY NOTE (This note is not part of the Regulations) These Regulations are made under the Community Care and Health (Scotland) Act 2002 which, together with the Community Care (Personal Care and Nursing Care) (Scotland) Regulations 2002 ( the principal Regulations ), provide that local authorities are not to charge for certain types of social care provided or secured by them. Regulation 2 revokes regulation 3 of the principal Regulations. This removes the qualification that the requirement not to charge applies only in relation to persons aged 65 or over. A Business and Regulatory Impact Assessment has been prepared and can be obtained from the Scottish Government Health and Social Care Directorate, St Andrews House, Edinburgh EH1 3DG. Page 6 of 40

15 FINAL BUSINESS AND REGULATORY IMPACT ASSESSMENT Title of Policy Summary of aims and desired outcomes of Policy The Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 Free Personal Care is currently in place for those aged 65 and over and this benefits nearly 78,0005 people in Scotland. Following a feasibility study, it is the intention of the Scottish Government to legislate to extend the provision of free personal care to all adults who are assessed by their local authority as needing the service. The requirement not to charge for personal care is currently qualified to persons aged 65 or over. The amendment to the Community Care (Personal Care and Nursing Care) (Scotland) Regulations will realise our ambition to extend free personal care by removing this qualification. This legislative step will ensure that charging arrangements for personal care apply equally regardless of age and condition. This also means that people who may have declined support in the past due to concerns about the cost may choose to seek that care, if eligible. Directors: Division: Team: Directorate for Health and Social Care Integration: Care, Support and Rights Division: Adult Social Care Policy 5 Page 7 of 40

16 Executive summary 1. The BRIA process encourages policy makers to identify issues and use available evidence to find proposals that best achieve the policy objectives while minimising costs and burdens. The BRIA is: a tool used by Government to assess and present the likely costs and benefits and associated risks of a proposal that might have an impact on the public, private, or third sector; a continuous process to help Government understand the issues associated with a proposal and avoid unintended consequences, fully think through the reasons for intervention, to weigh up various options for achieving an objective, and to understand the consequences of a proposed intervention. 2. BRIAs apply to primary and secondary legislation being introduced to the Scottish Parliament, as well as codes of practice or guidance. 3. This Business and Regulatory Impact Assessment (BRIA) has considered the potential impacts of the amendment to the regulations on the public, private, and third-sectors in Scotland. 4. This impact assessment is one of a package to accompany the amendment to the regulations. The others are: Children s Rights and Wellbeing Impact Assessment (CRWIA) and Equality Impact Assessment (EQIA). 4. Whilst the amendment to the regulations comes into force on 1 st April 2019, the legislation is being introduced earlier to enable local authorities to plan for this change. This aims to ensure current systems in relation to care and financial assessments can be reviewed and if necessary updated to enable local authorities to meet this legislative requirement by 1 April An Implementation Advisory Group (IAG) has been established to provide advice to support the implementation of the extension of the policy. The purpose of the IAG is to consider issues including the possible increase in demand and costs for uptake of services, interactions with the benefits system and with children s services, impact on local authorities eligibility criteria and to assist in drafting guidance for local authorities and service users. Advice from IAG members is intended to ensure that implementation takes into account the impact on local authority systems, providers and related policy areas and is undertaken in a way that is sensitive to the needs of service users. 6. Further information about membership of the IAG is described below at Consultation. Page 8 of 40

17 Background 7. The Community Care and Health (Scotland) Act made provision for local authorities not to charge for social care which is personal care and then Scottish Ministers used regulation making powers to qualify that provision by limiting the requirement not to charge for personal care only in relation to persons aged 65 or over. 8. Free Personal Care for people aged 65 and over in Scotland currently benefits nearly 78,000 older adults, of whom approximately 47,000 receive personal care in their homes, and 31,000 in residential care. Approximately 9,000 people under 65 receive personal care for which they may currently be charged depending on local authority charging policies. 9. The Social Work (Scotland) Act 1968 ( the 1968 Act ) provides the legal basis for provision of social care in Scotland. The 1968 Act places a duty on Local Authorities to assess those in their area who may be in need of social care services, and provide such of those services as they deem necessary to meet individual needs. The 1968 Act allows Local Authorities to charge for care provided to individuals by the Local Authority, so long as that charge is reasonable. 10. For a number of years, the Scottish Government has worked with COSLA to improve the fairness of social care charging in Scotland. The Scottish Government is investing 11m a year to ensure that charges for social care are lower than they otherwise would be. This has been implemented by raising the threshold at which people become eligible to contribute financially towards their social care and through measures to ensure veterans retain the full value of their war pensions. The Scottish Government also ensured, in partnership with COSLA, that those in the last 6 months of a terminal illness receive their care at home for free, without having to worry about charges for social care at such a stressful time7. By the introduction of a standard financial assessment template across all Local Authorities, progress has been made towards greater transparency and consistency across Scotland. 11. Despite this progress, a number of popular and long running campaigns have continued to call for further changes to charges to social care, including the Frank s Law campaign calling for the extension of free personal care to those under 65. The Scottish Government committed to undertake a feasibility study into the extension of Free Personal Care to people under 65 who need it, and examine the potential relationship with social security provision. This study was published in September On 5 th September 2017, the First Minister announced a commitment to implement Frank s Law, by extending Free Personal Care to those aged under 65 who S COSLA Charging Guidance Page 9 of 40

18 are assessed by their local authorities as needing this service, regardless of their age, condition and means. Financial policy context 12. For older people and adults, gross expenditure on social care increased by 144 million between 2015/16 and 2016/17 an increase of 4.8%. Integration Authorities are managing more than 8 billion of resources that NHS boards and councils previously managed separately, and resources are transferring from the NHS into social care with almost half a billion pounds transferred in 2017/18. In 2018/19, a further 66 million is being provided to local government for social care which will support implementation of the Carers (Scotland) Act, maintain payment of the real Living Wage, and increase payments for free personal and nursing care. However, the increases in funding for social care come against the backdrop of an ageing population contributing to an increasing demand for services. 13. A survey undertaken as part of the feasibility study found that local authorities currently collect in the region of 10m towards the cost of personal care services in non-residential settings for adults under 65. The extension of free personal care to under 65s would remove that source of income for local authorities which is used towards the cost of providing services. The estimated gross expenditure on personal care for younger adults in was 132m. This means that around 8% of gross expenditure on personal care for younger adults is funded through client contributions. In addition to the costs relating to existing service users, it is expected that moving to free provision of personal care would increase demand for services. This needs to be set within a context of the range of demands placed upon the social care system. It is therefore important to ensure that any policy changes which are expected to reduce income for social services are carefully considered. Rationale for Government intervention 14. The extension of free personal care builds on previous action to improve the fairness of charging for social care and responds to long running public campaigns on this issue. This legislative step will ensure that charging arrangements for personal care apply equally regardless of age and condition. This may enable people who have declined support in the past due to concerns about the cost to choose to seek that care, if eligible. 15. The extension of Free Personal Care fits with the following National Performance Framework strategic objectives: We live longer, healthier lives; We have tackled the significant inequalities in Scottish society; Our people are able to maintain their independence as they get older and are able to access appropriate support when they need it; and Our public services are high quality, continually improving, efficient and responsive to local people s needs. Page 10 of 40

19 16. The extension to this policy will also go towards our national indicator of improving support for people with care needs. Consultation Within Government 17. The following Scottish Government departments have been consulted in the development of policy on the extension of free personal care : Self-directed Support branch, who provided advice on the SDS policy and how this may fit with free personal care; Independent Living Fund Scotland Policy and Sponsorship branch, who provided advice relating to the interaction of free personal care with this policy; Children and Families branch and Better Life Chances branch, provided advice in relation to transition of a child from children to adult services; Scottish Government s Social Work Advisor provided advice on a range of issues relating to the social work profession; Social Security branch, provided advice relating to the relationship between free personal care and social security benefits. Housing branch, provided advice relating to the guidance which may impact on housing issues. Access to Justice Team, provided advice relating to the impact on Scottish Legal Aid Scheme. Consultation with external bodies 18. The following sources were consulted in the development of the feasibility study and wider policy development process which has fed into the preparation of the BRIA. A group comprising COSLA, Health and Social Care Partnership Chief Officer and Chief Finance Officer representatives, informed the development of a survey of Local Authorities / Health and Social Care Partnerships in July 2017, on the likely costs of extension and sought respondents views on the risks and opportunities of doing so which was analysed by Scottish Government. (Following publication of the feasibility study, this group was expanded to become the IAG). Meetings with Chief Finance Officers, Chief Officers and Chief Social Work Officers networks. Meetings with stakeholder groups: Scotland Against the Care Tax, Alzheimer Scotland, Parkinson s UK, the Older People s Development Group, Scottish Care and Coalition of Care and Support Providers in Scotland (CCPS). Page 11 of 40

20 Public Consultation 19. Scottish Government invited comments from the public on the feasibility study into the extension of free personal care during Summer The Feasibility Study Report was published in September 2017 on the Scottish Government website. We received a total of 96 responses to the consultation, 83 from individuals and 13 from organisations. The vast majority of responses form members of the public supported the extension of free personal care to adults. 20. Individual meetings with Mrs Amanda Kopel of the Frank s Law campaign were carried out and Mrs Amanda Kopel also attended an IAG meeting in March 2018, providing the group with a talk on her own personal experiences. 21. A round table meeting with Disabled People s Organisations took place in August The organisations involved in this meeting were: Scottish Independent Living Coalition Inclusion Scotland Self-Directed Support Scotland Scotland Against the Care Tax Glasgow Centre for Inclusive Living Glasgow Disability Alliance People First Health and Social Care Alliance Disability Rights UK MECOPP support for Minority Ethnic Carers MND Scotland Business Consultation 22. Scottish Care and CCPS, which are the main representative bodies for providers of social care in Scotland, are represented on the Implementation Advisory Group. 23. We received 13 written responses from organisations and charities as part of the feasibility study, including a number of organisations delivering services to people likely to be affected by the extension of free personal care. 24. Responses were received from: Scotland Against the Care Tax Sue Ryder Age Scotland Alliance Glasgow City Health and Social Care Partnership Motor Neurone Disease Scotland Scottish Commission for Learning Disability Page 12 of 40

21 Parkinson s UK in Scotland Marie Curie Inclusion Scotland Enable Scottish Care Alzheimers Scotland Local Authority Consultation 25. Working with COSLA, and representatives of Chief Officers and Chief Finance Officers of Health and Social Care Partnerships, feedback was sought from local authorities and partnerships. A survey was sent to IJB Chief Finance Officers and Councils Directors of Finance in July Responses were received from 29. Respondents highlighted the fairness of moving to end the difference of treatment based on age, while highlighting the practical issues involved in implementing the policy. The most consistent concern was the anticipated loss of income for care services and the need to address this as part of implementation. Ongoing input to implementation 26. The IAG was set up to provide advice to assist Scottish Government, COSLA, local authorities and service providers in implementing the extension of free personal care. 27. Advice from IAG members is intended to ensure that implementation takes into account the impact on local authority systems, providers and related policy areas and is undertaken in a way that is sensitive to the needs of service users both current and new. Implementation is to be complete by April The Implementation Advisory Group consists of officials from: Scottish Government COSLA Social Work Scotland Local Authorities Health and Social Care Partnerships Service Providers Social Work and Service User representatives. Expected impacts of extension of free personal care Options considered 29. In developing how to take forward policy on the fairness of charging, Scottish Government has considered options including further increases to charging thresholds and making all social care free. Further increases to Page 13 of 40

22 charging thresholds would not tackle the difference of treatment between those over and under 65 in respect of free personal care. Scotland Against the Care Tax has called for all social care to be available free of charge and this issue has been considered by the Public Petitions Committee. In evidence provided to the Committee, Scottish Government estimated that such a policy could cost in excess of 200m per year. It is expected that such significant additional costs would require major reductions in provision of social care, with further raising of eligibility thresholds. Following the feasibility study, the extension of free personal care is considered to be an option that would deliver important benefits in terms of fairness and equal treatment, and potentially enable some people to access care who had previously been deterred by charging policies. Sectors and groups affected 30. This policy will impact on individual service users, local authorities who assess needs and provide or commission services, and private or third sector organisations that provide services to those affected. The costs and benefits to each group are considered below. Benefits 31. The extension of free personal care would remove the current difference of treatment between those under and over 65 in respect of charges for personal care. Around 9,000 adults between the ages of 18 and 64 currently receive personal care services, for which they may currently be charged, depending on local authority charging policies9. These include people with a range of conditions including learning disabilities, mental health and physical disabilities. Such people will continue to be liable for any charges for any non-personal care elements of their support packages. The numbers of people receiving an overall financial benefit from the removal of charges for personal care, and the extent to which they benefit, will depend on their specific circumstances and the interaction with the overall local authority charging policy. Scottish Government and COSLA are considering proposals by Scotland Against the Care Tax in this respect. 32. Following the extension of free personal care to under 65s, there would be a number of people who are not currently receiving personal care services (either through choice, including choice based on the cost of receiving the service, or potentially lack of awareness of the availability of services) or who are privately arranging personal care services, who would be eligible to apply to their local authority for free personal care services. Work is on-going to identify the numbers of this group of people who might come forward. This would benefit those eligible individuals and may have important impacts on prevention to avoid or delay use of more costly and/or less appropriate institutional services. 9 It is estimated that around 9,170 people under 65 received personal care in Some of these people are not charged for care as their income and assets are below charging thresholds or their local authority does not apply charges for the services they receive. Page 14 of 40

23 33. Any increase in service provision to respond to additional demand would mean extra business for social care provider organisations. Costs 34. Based on the feasibility study, it is estimated that younger adults, those under the age of 65, currently contribute around 10m in charges for their personal care services delivered in non-residential settings. 35. The Scottish Care Homes Census and the Care Homes (Quarterly Monitoring Survey) show that there were around 3,500 people aged under 65 who were long stay residents in care homes from onwards and this number has been declining in recent years. Of those residents, 97% are supported by the Local Authority, suggesting that only 3% (around 120) are self-funders. The estimated cost of extending Free Personal Care to under 65s in care homes is likely to be under 1 million per annum. 36. The experience of providing free personal care to older people was that demand for services increases. Therefore, as well as determining the income expected to be lost to local authorities from existing clients who contribute towards the cost of personal care, Scottish Government analysts are undertaking modelling work to seek to estimate the potential impact of extending free personal care on service uptake based on various scenarios. This will inform budget discussions between Scottish Government and COSLA. Managing this impact is considered further in Scottish Firms Impact Test below. Scottish Firms Impact Test 37. The Care Inspectorate regulates around 14,000 individual care services which include services delivered by local authorities, the third sector and independent businesses for a range of client groups. The client groups most likely to be affected by the extension of free personal care include those with learning disabilities, mental health problems and physical disabilities. Many of the services provided by these bodies are commissioned by local authorities. Therefore the resources made available to local authorities for social care will impact on businesses and other organisations providing services to these client groups. 38. The extension of free personal care will reduce the funding available to local authorities that it currently receives from financial contributions from eligible service users with sufficient qualifying income. It is also expected that the provision of a free service will attract increased demand for services that will place additional pressure on local authority budgets. These additional pressures could, if not addressed, have an adverse effect on local authorities and businesses providing social care. However, Scottish Government has undertaken to work with COSLA to identify the estimated costs of the extension so that this can be addressed in budget negotiations. Page 15 of 40

24 39. The feasibility study into the extension of free personal care included the results of a survey of local authorities that identified current income from charging of existing service users for non-residential personal care services to be approximately 10m. Scottish Government is working with COSLA and the Implementation Advisory Group to further identify the estimated costs of additional demand arising from the extension of free personal care. Both aspects will then be considered as part of negotiations with COSLA for the budget. A monitoring process will be established to trace the actual impact of the scheme following its introduction, so that this can be reflected in future budgets. Competition Assessment 40. No significant impact is anticipated due to the factors outlined above. Test run of business forms 41. This policy will not introduce any statutory business forms. Legal Aid Impact Test 42. It is not envisaged that there will be any greater demands placed on the legal aid system as a result of implementing the extension of free personal care to those aged under 65 and who are assessed as needing the service by their local authority. There is continued potential (as is the case now) for individuals to challenge a local authority decision relating to service provision e.g. where the local eligibility criteria are not met. This would initially be undertaken through local authority complaints procedures as set out below see Enforcement, Sanctions and Monitoring. As it is expected there may be greater numbers of people applying for free personal care, therefore there may be pro-rata higher volumes of challenges. However, this is not a function of the change in legislation as such but may be as a result of the expected increased numbers of individuals seeking access to free personal care over time. 43. It is considered the Act does not carry any implications for the legal aid fund, nor adversely affect the legal aid scheme. The Scottish Government s Access to Justice Team have considered this document and are in agreement with this view. Enforcement, sanctions and monitoring 44. The IAG have agreed within its remit to identify a process for assessing the impact of the extension of free personal care and Scottish Government will work with COSLA and other stakeholders to consider the outcome of this assessment. 45. The Community Care and Health (Scotland) Act 2002 provides powers for the Scottish Government to regulate charging for non-residential care services. The Scottish Government has not exercised this power, allowing Page 16 of 40

25 local authorities to set charges taking into account local circumstances and allowing local flexibility. 46. Individuals who are dissatisfied with their access to personal care may, as now, access the local authority s complaints procedure if that was applicable to a particular case. If unsatisfied with the outcome of the local authority s complaints procedure, the individual may thereafter approach the Scottish Public Services Ombudsman to consider any complaint. 47. No further enforcement provisions have been made in relation to the discharge of functions by local authorities. There are already general powers of control and enforcement which are conferred on Scottish Ministers in respect of local authorities. Implementation and delivery plan Subordinate legislation in place in June We have been working closely with Scottish Government Legal Department to ensure the subordinate legislation will be laid in Parliament by early May. This will then follow the affirmative statutory instrument legislation timetable going before the Delegated Powers and Law Reform Committee for consideration. The subordinate legislation will also be heard before the Health and Sport Committee who will consider the SSI s policy effect, taking evidence form the Cabinet Secretary for Health and Sport and officials. Revised Guidance published during Summer Scottish Government, COSLA, the Implementation Advisory Group and local authorities are already working together to produce guidance for local authorities and service providers. In addition, Scottish Government also intend to publish information on the Care Information Scotland website for service users. Budget discussions by Autumn Scottish Government and COSLA will work together to agree budgets and funding which will be incorporated into the Autumn Statement for the financial year 2019/20. Implementation by local authorities by 1 st April Scottish Government, COSLA and the IAG will work with local authorities to enable local authorities procedures to be in place to carry out necessary care and financial assessments for free personal care by 1 st April Page 17 of 40

26 Post Implementation Review 52. The IAG has agreed within its remit to identify a process for assessing the impact of the extension of free personal care and Scottish Government will work with COSLA and other stakeholders to consider the outcome of this assessment. Summary and Recommendation 53. It is our intention to proceed with extending Free Personal Care by revoking Regulation 3 of the Community Care (Personal Care and Nursing Care) (Scotland) Regulations In summary, this legislative step will ensure that charging arrangements for personal care apply equally regardless of age and condition. People who may have declined support in the past due to concerns about the cost would be able to receive that care, if eligible. Page 18 of 40

27 Declaration and publication I have read the impact assessment and I am satisfied that (a) it represents a fair and reasonable view of the expected costs, benefits and impacts of the policy and (b) that the benefits justify the costs. I am satisfied that business impact has been assessed with the support of businesses in Scotland. Signed: Shona Robison Date: 27 April 2018 Cabinet Secretary for Health and Sport Page 19 of 40

28 EQUALITY IMPACT ASSESSMENT RECORD Title of policy/ practice/ strategy/ legislation etc. Minister Lead official Extension of Free Personal Care to Under 65s Cabinet Secretary for Health and Sport Mike Liddle Officials involved in the EQIA name David Fotheringham, Susan Brodie team Adult Social Care Policy Directorate: Division: Team Is this new policy or revision to an existing policy? DHSCI: Care, Support and Rights: Adult Social Care Policy Revision to existing policy. Screening Policy Aim Free Personal Care to over 65s was introduced in 2002, following passage of the Community Care and Health (Scotland) Act The policy provided that local authorities should not charge for personal care, and that by regulations, Scottish Ministers would set out the amount payable to selffunding residential care home residents to contribute towards their personal care costs. It was considered at the time of passage through the Scottish Parliament that as those of working age received different and more generous benefits than over 65s, there was sufficient reason to apply Free Personal Care to those over the age of 65, and not those below that age. The Parliament did, however, note that it would be a matter to review in time. The extension of Free Personal Care to under 65s will ensure that under 65s are able to access personal care on the same financial basis as those over the age of 65. Local Authorities and Health and Social Care Partnerships will retain the responsibility to assess an individual s care needs, and apply national eligibility criteria. This policy contributes towards the following National Outcomes: We live longer, healthier lives. We have tackled the significant inequalities in Scottish society. Our people are able to maintain their independence as they get older and are able to access appropriate support when they need it. Our public services are high quality, continually improving, efficient and responsive to local people's needs. Page 20 of 40

29 Who will it affect? It is estimated that up to 120 self-funding residents in care homes under the age of 65 will benefit from free personal and nursing care payments. Around 9,000 adults between the age of 18 and 64 currently receive personal care services in their own homes, for which they may currently be charged. The extension of free personal care to those under the age of 65 would mean that subject to local authority assessment and eligibility criteria, these 9,000 adults would be able to apply for free personal care. Following the extension of free personal care to under 65s, there would be a number of people who are not currently receiving personal care services (either through choice, including choice based on the cost of receiving the service, or potentially lack of awareness of the availability of services) or who are privately arranging personal care services, who would be eligible to apply to their local authority for free personal care services. Work is on-going to identify the numbers of this group of people who might come forward. Page 21 of 40

30 Stage 1: Framing Results of framing exercise The Scottish Government considered the evidence from the introduction of Free Personal Care to over 65s in 2002, including the costs and take-up, as well as considering the way in which the application of eligibility criteria in 2010 affected the uptake of free personal care. As part of the process of conducting the feasibility study, Scottish Government officials met with a number of representative organisations with an interest in social care and support, a number of campaign groups, and took part, together with COSLA, in a round table event with people who are in receipt of social care. The Scottish Government received views from a number of stakeholders and members of the public to feed into this feasibility study. 96 responses were received, of which 83 were from individuals and 13 from organisations with an interest in social care. Of the responses from members of the public, the vast majority were supportive of the extension of Free Personal Care to under 65s, and some noted that the policy was an important preventative measure, helping to delay or avoid the need for more costly residential or hospital-based care. A virtual group comprising COSLA, Health and Social Care Partnership Chief Officer and Chief Finance Officer representatives informed the development of a survey of Local Authorities / Health and Social Care Partnerships in July 2017 on the likely costs of extension of free personal care to under 65s and sought respondents views on the risks and opportunities of doing so which was analysed by Scottish Government. Meetings were held by Scottish Government officials with Chief Finance Officers and Chief Officers networks; with stakeholder groups: Scotland Against the Care Tax, Alzheimer Scotland, Parkinson s UK, the Older People s Development Group, Scottish Care and Coalition of Care and Support Providers in Scotland (CCPS). Written submissions were welcomed and received from the public and from organisations representing service users and/or providers of social care. A round table meeting was held with Disabled People s Organisations on 10 th August 2017, and a meeting with Mrs Amanda Kopel of the Frank s Law campaign on 11 th August Extent/Level of EQIA required The EQIA has been informed by work undertaken during the Feasibility Study, by the work of the Implementation Advisory Group for the Extension of Free Personal Care, and by engagement with service users, providers, local Page 22 of 40

31 authorities and Health and Social Care Partnerships, as well as other bodies involved in the delivery of social care. The policy removes a distinction between over 65s and under 65s in the availability of free personal care, and it is considered that the EQIA as set out here gives due regard to the protected characteristics affected by the policy change. Page 23 of 40

32 Stage 2: Data and evidence gathering, involvement and consultation HS/S5/18/18/4 Include here the results of your evidence gathering (including framing exercise), including qualitative and quantitative data and the source of that information, whether national statistics, surveys or consultations with relevant equality groups. Characteristic10 Evidence gathered and Strength/quality of evidence Source Data gaps identified and action taken AGE The Feasibility Study was underpinned by National Statistics on age, free personal care, delivery of social care by local authorities and the Local Government Finance statistics (LFR3). As part of the Feasibility Study we solicited consultation responses from the public on the extension of free personal care to under 65s. We also met with Social Care Survey Free Personal and Nursing Care (Scotland) statistics Scottish Care Homes Census Local financial return LFR3 During the work on the Feasibility Study, we surveyed local authorities on their charging policies, income from charging and administration costs for administering their charging policies. 10 Refer to Definitions of Protected Characteristics document for information on the characteristics Page 24 of 40

33 DISABILITY service users of all ages to discuss the impact of the extension of free personal care. The Feasibility Study was underpinned by National Statistics on age, free personal care, delivery of social care by local authorities and the Local Government Finance statistics (LFR3). As part of the Feasibility Study we solicited consultation responses from the public on the extension of free personal care to under 65s. Social Care Survey Free Personal and Nursing Care (Scotland) statistics Scottish Care Homes Census Local financial return LFR3 During the work on the Feasibility Study, we surveyed local authorities on their charging policies, income from charging and administration costs for administering their charging policies. We also met with service users of all ages to discuss the impact of the extension of free personal care. A round table event Page 25 of 40

34 SEX was held with representatives from Disabled People s Organisations The policy is not expected to have any impact on equality in relation to this characteristic. None noted None noted PREGNANCY AND MATERNITY The policy is not expected to have any impact on equality in relation to this characteristic. None noted None noted GENDER REASSIGNMENT The policy is not expected to have any impact on equality in relation to this characteristic. None noted None noted SEXUAL ORIENTATION The policy is not expected to have any impact on equality in relation to this characteristic. None noted None noted Page 26 of 40

35 RACE The policy is not expected to have any impact on equality in relation to this characteristic. None noted None noted RELIGION OR BELIEF The policy is not expected to have any impact on equality in relation to this characteristic. None noted None noted MARRIAGE AND CIVIL PARTNERSHIP (the Scottish Government does not require assessment against this protected characteristic unless the policy or practice relates to work, for example HR policies and practices - refer to The policy is not expected to have any impact on equality in relation to this characteristic. None noted None noted Page 27 of 40

36 Definitions of Protected Characteristics document for details) HS/S5/18/18/4 Page 28 of 40

37 Stage 3: Assessing the impacts and identifying opportunities to promote equality HS/S5/18/18/4 Having considered the data and evidence you have gathered, this section requires you to consider the potential impacts negative and positive that your policy might have on each of the protected characteristics. It is important to remember the duty is also a positive one that we must explore whether the policy offers the opportunity to promote equality and/or foster good relations. Do you think that the policy impacts on people because of their age? Age Positive Negative None Reasons for your decision Eliminating unlawful discrimination, harassment and victimisation X The policy does not impact on unlawful discrimination. It does act to ensure equality of treatment between all age groups. Advancing equality of X People of all ages with an eligible care need will opportunity Promoting good relations among and between different age groups X Do you think that the policy impacts disabled people? Page 29 of 40 benefit from the extension of free personal care. By ensuring that people of all ages have access to personal care we are ensuring that all age groups are treated in the same way, fostering better relationships between age groups. Disability Positive Negative None Reasons for your decision X Eliminating unlawful discrimination, harassment and victimisation The policy does not impact on unlawful discrimination. It does act to ensure equality of treatment between all age groups and will enable disabled people who are assessed as requiring it to receive their personal care free of charge.

38 Advancing equality of opportunity Promoting good relations among and between disabled and non-disabled people X X HS/S5/18/18/4 By extending free personal care to all under the age of 65, disabled people who are assessed as requiring it will receive their personal care free of charge. The changes will mean that both disabled and nondisabled people will be entitled to receive personal care free of charge should they require it, irrespective of their age. Do you think that the policy impacts on men and women in different ways? Sex Positive Negative None Reasons for your decision Eliminating unlawful discrimination X The policy does not impact on men and women in different ways. Advancing equality of opportunity Promoting good relations between men and women X X The policy does not impact on men and women in different ways. The policy does not impact on men and women in different ways. Do you think that the policy impacts on women because of pregnancy and maternity? Pregnancy and Maternity Eliminating unlawful discrimination Positive Negative None Reasons for your decision X Page 30 of 40 The policy does not impact on women because of pregnancy and maternity.

39 Advancing equality of opportunity Promoting good relations X X HS/S5/18/18/4 The policy does not impact on women because of pregnancy and maternity. The policy does not impact on women because of pregnancy and maternity. Do you think your policy impacts on transsexual people? Gender reassignment Eliminating unlawful discrimination Advancing equality of opportunity Promoting good relations Positive Negative None Reasons for your decision X X X The policy does not impact differently transsexual people. The policy does not impact differently transsexual people. The policy does not impact differently transsexual people. Do you think that the policy impacts on people because of their sexual orientation? Sexual orientation Positive Negative None Reasons for your decision Eliminating unlawful discrimination X The policy does not impact differently on people as a result of their sexual orientation. Advancing equality of opportunity Promoting good relations X X The policy does not impact differently on people as a result of their sexual orientation. The policy does not impact differently on people as a result of their sexual orientation. Page 31 of 40

40 Do you think the policy impacts on people on the grounds of their race? HS/S5/18/18/4 Race Positive Negative None Reasons for your decision X Eliminating unlawful discrimination The policy does not impact differently on people as a result of their race. Advancing equality of opportunity Promoting good race relations X X The policy does not impact differently on people as a result of their race. The policy does not impact differently on people as a result of their race. Do you think the policy impacts on people because of their religion or belief? Religion or belief Positive Negative None Reasons for your decision Eliminating unlawful discrimination X The policy does not impact differently on people as a result of their religion or belief. Advancing equality of opportunity Promoting good relations X X The policy does not impact differently on people as a result of their religion or belief. The policy does not impact differently on people as a result of their religion or belief. Page 32 of 40

41 Do you think the policy impacts on people because of their marriage or civil partnership? HS/S5/18/18/4 Marriage and Civil Partnership11 Eliminating unlawful discrimination Positive Negative None Reasons for your decision X The policy does not impact differently on people as a result of their marriage or civil partnership. 11 In respect of this protected characteristic, a body subject to the Public Sector Equality Duty (which includes Scottish Government) only needs to comply with the first need of the duty (to eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010) and only in relation to work. This is because the parts of the Act covering services and public functions, premises, education etc. do not apply to that protected characteristic. Equality impact assessment within the Scottish Government does not require assessment against the protected characteristic of Marriage and Civil Partnership unless the policy or practice relates to work, for example HR policies and practices. Page 33 of 40

42 Stage 4: Decision making and monitoring Identifying and establishing any required mitigating action Have positive or negative impacts been identified for any of the equality groups? Is the policy directly or indirectly discriminatory under the Equality Act ? If the policy is indirectly discriminatory, how is it justified under the relevant legislation? If not justified, what mitigating action will be undertaken? Yes positive effects have been identified in relation to equality of treatment for those of all ages. It also provides positive effects for disabled people by enabling those who require it to receive personal care free of charge, meaning that overall social care charges will be lower for some service users. No. N/A N/A Describing how Equality Impact analysis has shaped the policy making process During the Feasibility Study and subsequent work on the implementation of the policy, we have met with various groups and organisations, significantly with Disabled People s Organisations, to understand the impacts and potential knock-on effects of the policy. While the legislation involved is a simple removal of the age limit at which people are eligible to receive free personal care, there will continue to be further discussion during the implementation phase to consider the effects of the policy on those receiving care. 12 See EQIA Setting the Scene for further information on the legislation. Page 34 of 40

43 As a result of discussions with service users including disabled people we are continuing to work on the implementation of free personal care to consider the issues raised. The legislation makes a simple change, but the way in which the legislation is implemented by local authorities will be subject to guidance from both the Scottish Government and COSLA, which is being considered by the Implementation Advisory Group, which includes in its membership the Scottish Commission on Learning Disability (SCLD), which represents the main client group affected, and a representative of Disabled People s Organisations. Monitoring and Review Monitoring of the uptake of free personal care by under 65s will be as part of regular data collection on free personal care as already undertaken. We will monitor the costs and uptake, and monitor the overall impact on charges for social care. Stage 5 - Authorisation of EQIA Please confirm that: This Equality Impact Assessment has informed the development of this policy: Yes No Opportunities to promote equality in respect of age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation have been considered, i.e.: o Eliminating unlawful discrimination, harassment, victimisation; o Removing or minimising any barriers and/or disadvantages; o Taking steps which assist with promoting equality and meeting people s different needs; o Encouraging participation (e.g. in public life) o Fostering good relations, tackling prejudice and promoting understanding. Yes No If the Marriage and Civil Partnership protected characteristic applies to this policy, the Equality Impact Assessment has also assessed against the duty to eliminate unlawful discrimination, harassment and victimisation in respect of this protected characteristic: Yes No Not applicable Page 35 of 40

44 Declaration I am satisfied with the equality impact assessment that has been undertaken for the Extension of Free Personal Care to under 65s and give my authorisation for the results of this assessment to be published on the Scottish Government s website. Name: Jamie MacDougall Position: Deputy Director, Care, Support and Rights Authorisation date: 27 April 2018 Page 36 of 40

45 Final CRWIA - Web version of Policy CRWIA Extension of Free Personal Care to under 65s Child Rights and Welfare Impact Assessment 30 April 2018 Policy/measure Summary of policy aims and desired outcomes Extension of Free Personal Care to under 65s - The Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 Free Personal Care to over 65s was introduced in 2002, following passage of the Community Care and Health (Scotland) Act The policy provided that local authorities should not charge for personal care, and that by regulations, Scottish Ministers would set out the amount payable to self-funding residential care home residents to contribute towards their personal care costs. It was considered at the time of passage through the Scottish Parliament that as those of working age received different and more generous benefits than over 65s, there was sufficient reason to apply Free Personal Care to those over the age of 65, and not those below that age. The Parliament did, however, note that it would be a matter to review in time. The extension of Free Personal Care to under 65s will ensure that under 65s are able to access personal care on the same financial basis as those over the age of 65. Local Authorities and Health and Social Care Partnerships will retain the responsibility to assess an individual s care needs, and apply national eligibility criteria. This policy contributes towards the following National Outcomes: We live longer, healthier lives. We have tackled the significant inequalities in Scottish society. Our people are able to maintain their independence as they get older and are able to access appropriate support when they need it. Our public services are high quality, continually improving, efficient and responsive to local people's needs. Directorate; Division; Team Executive Summary Directorate for Health and Social Care Integration Care, Support and Rights Division Adult Social Care Policy Team It is estimated that up to 120 self-funding residents in care homes under the age of 65 will benefit from free personal and nursing care payments. Around 9,000 adults between the age of 18 and 64 currently receive personal care services in their own homes, for which they may currently be charged. The extension of free personal care to those under the age of 65 would mean that subject to local authority assessment and eligibility criteria, these 9,000 adults would be able to apply for free personal care. Following the extension of free personal care to under 65s, there Page 37 of 40

46 would be a number of people who are not currently receiving personal care services (either through choice, including choice based on the cost of receiving the service, or potentially lack of awareness of the availability of services) or who are privately arranging personal care services, who would be eligible to apply to their local authority for free personal care services. Work is on-going to identify the numbers of this group of people who might come forward. Local Authorities providing social care services for children between the ages of 16 and 18 often use this timeframe to transition from Children s to Adult services. Children are not charged for the social care they receive, but they may become eligible on entering the adult social care system. The extension of free personal care to under 65s will mean that those children between 16 and 18 transitioning from children s to adult services, or entering the social care system will not be charged for the personal care they are assessed as needing. Background Free Personal Care for people aged 65 and over in Scotland currently benefits nearly 78,000 older adults, of whom approximately 47,000 receive personal care in their homes, and 31,000 in residential care. The Scottish Government has been working with COSLA and other partners to improve the fairness and consistency of charging for social care and has committed to consider the extension of Free Personal Care to those under 65. The Social Work (Scotland) Act 1968 ( the 1968 Act ) provides the legal basis for provision of social care in Scotland. The 1968 Act places a duty on Local Authorities to assess the needs of residents within their area, and provide such social care services as they deem are required for the individual. The 1968 Act allows Local Authorities to charge for care provided to individuals by the Local Authority, so long as that charge is reasonable and does not exceed the cost of delivering the service. In September 2001 the Scottish Government introduced legislation to provide Free Personal Care for those over the age of 65 who were assessed as needing it, resulting in the parliamentary approval of The Community Care and Health (Scotland) Act A number of strong campaigns have led calls for the extension of Free Personal Care to under 65s who need it. For a number of years, the Scottish Government has worked with COSLA to bring greater consistency to social care charging in Scotland. In the most recent years, the Scottish Government has invested up to 11m a year into the social care system to reduce care charges by raising the threshold at which people become eligible to contribute financially towards their social care, and by ensuring that armed forces veterans retain the full value of their war pension payments. The Scottish Government has also ensured, in partnership with COSLA, that those in the last 6 months of a terminal illness receive their care at home for free, without having to worry about charges for social care at such a stressful time. By the introduction of a standard financial assessment template across all Page 38 of 40

47 Local Authorities, progress has been made towards greater transparency and consistency across Scotland. The Scottish Government committed to undertake a feasibility study into the extension of Free Personal Care to people under 65 who need it, and examine the potential relationship with social security provision through that study, which was published in September In September 2017, the First Minister announced in the Programme for Government the commitment to introduce Free Personal Care to everyone who requires it, irrespective of age. This includes children between the ages of 16 and 18 who are transitioning into the adult social care system, or accessing the social care system. Scope of the CRWIA This CRWIA assesses the impact on those children aged between 16 and 18 who are transitioning to adult social care services, or those entering the social care system between those ages, of the extension of free personal care to under 65s. Children under the age of 16 are out of scope for this CRWIA, as care services for children are not charged for by Local Authorities. Children and young people s views and experiences Key Findings To include impact on UNCRC rights and contribution to wellbeing indicators Responses to the Feasibility Study and events held with Glasgow Disability Alliance and groups of social care recipients, including young people were generally supportive of the extension of free personal care to under 65s, subject to local authority funding being sufficient to ensure delivery. Currently children are not charged for any social care (either personal or non-personal) up to the point that they transition from children s social work services to adult social work services, which can be at any point between their 16th and 18th birthdays for children not looked after by local authorities, depending on the service provided by the local authority Under duties in the Children and Young People (Scotland) Act 2014, those children who have been looked after and, as care leavers, are also entitled to Aftercare or Continuing Care are eligible to receive both personal care and non-personal care up to their 26th birthday should they require it. The legislative change will mean that all children and young adults between 16 and 18 years of age will, from 1st April 2019, be eligible to receive their personal care without charge. There will, however, remain a distinction between looked after children and other children/young adults in the provision of non-personal care. Looked after (and formerly looked after) children will continue to be eligible to receive their non-personal care free up to their 26th birthday, where other children will be liable to charges for nonpersonal care following their transition to the adult social care system. Any charges will continue to be means-tested, and subject to local authorities charging policies. Page 39 of 40

48 Conclusions and Recommendations Monitoring and review The extension of free personal care will improve the situation for children who have not been looked after by local authorities, by extending free personal care to them. Care leavers will continue to be eligible to receive free personal care. The extension of free personal care to under 65s will be monitored over the implementation period, and the Scottish Government will work with COSLA and local authorities to monitor uptake. CRWIA Declaration Tick relevant section, and complete the form. CRWIA required CRWIA not required Authorisation Policy lead Mike Liddle Adult Social Care Policy Team Care, Support and Rights Directorate for Health and Social Care Integration Date 26 April 2018 Deputy Director or equivalent Jamie MacDougall Deputy Director, Care, Support and Rights Directorate for Health and Social Care Integration Date 26 April 2018 Page 40 of 40

49 HS/S5/18/18/6 Health and Sport Committee Community Care (Personal Care and Nursing Care) (Scotland) Amendment (No. 2) Regulations 2018 Extending Free Personal Care to Adults aged under 65 Written submission from COSLA COSLA welcomes the opportunity to provide a submission to the Health & Sport Committee on the statutory instrument and is happy to provide support for this policy. COSLA has a political position to uphold the principle of charging for social care services on the basis that: It is fair that people, who can afford to pay a charge or contribution toward the cost of the care they receive, do so; Co-payment encourages ownership, personal responsibility and empowers a person s ability to make choices with regard to the care they purchase The ability to use income raised through charges to invest in social care services is key to providing councils with the flexibility to focus resources on local priorities and needs; Removing the ability of councils to fund services and generate income in this way undermines the ability of local government to act and prioritise according to the choices determined by local communities and to be accountable for those decisions. Within this context the Health & Social Care Board support the Scottish Government proposal to extend the current policy which provides free personal care to people over 65 to include adults under the age of 65. This responds to the criticism that the policy as it exists discriminates against those aged below 65; this has been the focus of the campaign known as Frank s Law. We note and agree that the proposal goes further than Franks Law, which was focused on people with Alzheimer s, because it will include all adults assessed as needing personal care, regardless of any specific health condition. Our understanding then is that the Scottish Government s policy intent is to remove the discrimination which exists and extend free personal care entitlement to include those adults under 65 years of age who are assessed as needing personal care. Implementation Legislation vs Agreement We note that the Scottish Government (SG), in seeking to implement this policy through the introduction of legislation subordinate to the Community Care Act 2002 (i.e. regulations). The proposed regulations are open to amendment. We should point out that COSLA s preference was to avoid legislation and suggested an alternative approach involving the Scottish Government issuing Statutory Guidance on extending free personal care to which COSLA, Councils and SG could jointly sign-up. This would have had a number of advantages including retaining the principle of local democratic choice, demonstrating confidence in local government, and mitigating the risk of additional demands being placed on local authorities through regulations or Members Bill amendments. Timescales COSLA have expressed the view that a staged approach to implementation might have provided a degree of risk management and the ability to monitor and respond to the inevitable Page 1 of 2