Free Personal and Nursing Care (Access and Entitlement) Sub – Group

Report of the meeting held on 7 October 2008

1Remit of Access and Entitlement sub – group

1.1The remit of the group is to develop detailed proposals for a consistent model for access to community care services across all local authorities, including:

  • a consistent understanding of the definition of “entitlement” to care services;
  • standardised assessment procedures;
  • common eligibility criteria;
  • a consistent approach to waiting list management for those clients with urgent or immediate needs, and
  • transparent arrangements for people assessed with lower priority needs.

1.2There is a clear link between the work of this sub group and that of the Legal Issues sub – group. The group agreed that there needs to be effective communication between the two groups.

1.3At the previous meeting on 5 September the chair had asked several members to produce papers to enable progress

2Entitlement and waiting lists

2.1Lord Sutherland considers that one of the fundamental principles of FPNC is that it “shall be an entitlement for everyone assessed as needing this level of care and support”.[1] He also considers that whilst waiting lists are a necessary part of the policy that it ought to be possible to address the problem of inconsistency in the use of waiting lists across Scotland

2.2The sub – group agreed it was essential to consider what was meant by entitlement. This question has been considered by the Legal Issues Group taking account of the legislation and current case law.They were of the view it was this question was not amenable to a definitive legal answer but that the Access and Entitlement group could address “entitlement” in terms of consistency.

2.2.1The Legal Issues sub – group had also been asked by the group for advice on whether a national eligibility criteria and waiting framework could be put in place without need the need to legislate. The Legal Issues sub – group advised the following:

  • the Social Work (Scot) Act 1968 is sufficiently flexible in that it offers some discretion to local authorities about the provision of care services
  • given the current legal framework (including case law[2]) waiting lists were likely to be permissible,but that the group should consider when they were appropriate and how they should be managed.
  • waiting lists and timescales are not particularly amenable to statutory regulation within the existing legal framework. The legal issues are of the view that a timescales could be defined by the use of a management tool rather than legislation.

2.3There was also a discussion about self arrangers (i.e. people who are self funding who arrange their own care). It was agreed that this would be discussed in greater depth once the legal issues group had consulted with local authorities on how they currently manage this issue.

2.3.1I expressed concerns about those people that local authorities deem to be self arrangers and the possible implications. Self arrangers may fall into two groups:

  • those who arrange their own care without approaching their local authority, and
  • those who have had an assessment but are waiting for a service and who in the meantime arrange a place in a care home.

2.3.2The first group would not be entitled to FPNC without an assessment. The second group have had an assessment, but the effect of the Lord McPhail’s judgement[3]is that a local authority is not obliged to provide FPNCuntil they have provided or secured provision of services. In that case there had been an assessment calling for the provision of services but the local authority were not in position to provide FPNC payments because the budget was over committed. The family made arrangement with a care home and began to pay the full fee. This meant that Argyle and Bute Council did not provide or secure the provision of the service and therefore did not have a an obligation under the Section 1 of the Community Care and Health (Scotland) Act 2002 to make FPNC payments.

2.3.3This would seem to suggest that where an individual or their representatives arrange a place in a care home, rather than be placed on a waiting list, they may forfeit any right to FPNC payments.

2.3.4My concern is whether people in those circumstances are sufficiently informed to know that the consequences of making their own arrangements for a place in a care home, rather than be on a waiting list, could have an effect on their entitlement to FPNC payments. It is my experience that the public perception of FPNC is that it is an entitlement to those who need it and that families are not sufficiently informed about the financial implications of a family member moving to a care home. I am not confident that the people are or will be given enough information to make an informed decision about the possible effect of making their own arrangements.

2.3.5The conclusion drawn from the McPhail decision also appear to be at odds with Lord Sutherland’s assertion that FPNC is “an entitlement for everyone assessed as needing this level of care and support”.

2.3.6It would be helpful to have feedback from members of CCPS to these concerns in time for the next meeting on 24 October.

2.4The group were provided with feedback from a meeting with ADSW Community Care Standing Committee to discuss eligibility and waiting times. The committee agreed in principle to having a consistent national framework of eligibility criteria for care services. The standing committee also discussed whether such framework should apply to:

  • those with personal and nursing care needs
  • all older people, or
  • all community care groups

2.4.1The standing committee agreed in principle that a national framework could apply to all community care groups but that the impact of such a major change would need careful consideration.

2.4.2The standing committee also discussed waiting list and waiting times but this was less conclusive, although the committee agreed that most local authorities operate waiting lists in some form or another.

2.4.3The sub group agreed to consult with the ADSW Community Care Standing Committee on the progress of the groups work on eligibility criteria and waiting times.

3Eligibility Criteria

3.1Mike Brown (ADSW) provided a paper to the group on the Fair Access to Care (FACS) Eligibility Criteria system used in England. The system is used buy all 150 local authorities in England that have responsibility for social care. There is no Scottish Equivalent but 7 Scottish local authorities operate the FACS framework while a further 10 use a similar framework based on 4 criteria.[4]

3.1.1There have been two major pieces of research carried out

  • Fair Access tocare services inintegrated mentalhealth and socialcare teams[5]
  • Lost to the System? The Impact of Fair Access to Care a report commissioned by the Commission for Social Care Inspection.[6]

3.1.2A national review of English social care eligibility (FACS) and their application is due to report towards the end of 2008.

3.1.3Mike highlighted some of the areas of concern raised in the research. Including the fact that although FACS has a preventative agenda but in reality people assessed as having the lowest levels of needs often don’t get help. He also raised some of the questions raised in the research including how the FCAS framework addresses carers.

3.1.4Welsh Assembly had decided not to introduce free personal care, but had required local authorities to implement fairer charging policies for non residential care services from April 2007. Professor David Bell of StirlingUniversity has carried out research of the cost of introducing free personal care in Wales.

3.1.5The group agreed that, in deciding whether to recommend a similar system, they should consider the following:

  • the need for consultation, taking account of the timescale of the group ( I asked that CCPS be included in any consultation)
  • the need to consider the FACS research further
  • approaching Professor Bell for more detail of the Welsh data.

3.1.6The group also considered some of the issues and questions raised that need to be considered. These are:

  • Is the English system (FACS) a good starting point?
  • Are there alternative systems already used in Scotland that work well?
  • How do you address issues like carers and those who have the lowest level of needs?
  • The need to consider legal issues such as the differences in the way the English and Scottish systems have developed including the differences in Scottish case law. (This to be referred to the Legal Issues sub group to assess any risks)
  • How did Scottish local authorities arrive at the systems they use? Why they chose to use, or not to use, the English model?
  • How does all of this fit with thepersonalisation agenda?

3.1.7The members of the group agreed that further examination of the English system (FACS) was needed and that should include looking at eligibility criteria currently being used by Scottish local authorities. Some work has already been done this and Neil Rennick of the Scottish Government agreed to put a paper together on this for the next meeting.

4 Single Shared Assessment

4.1Jane Arroll of the Scottish Government (Joint Improvement Team) provided a paper on the Single Shared Assessment. Jane will provide a process diagram of care assessment management for the next meeting.

5Indicator of Relative Need (IoRN)

5.1Lord Sutherland’s review of FPNC highlighted the apparent inconsistencies on access to services across Scotland. The review suggests that the Indicator of Relative Need (IoRN) could help inform decisions about eligibility and provide consistency and transparency.

5.2 Peter Knight form the Scottish Government (Joint Improvement Team) produced a paper explaining how IoRN could contribute to better decisions on eligibility and access to community care services. The group agreed to revisit this issue once they had considered the management of the process of care assessment.

J PearsonPage 128/09/2018

G:\Welfare Rights\Jim Pearson\FPNC sub group\CPPS reports\Free Personal and Nursing Care Sub Group.doc

[1]Independent Review of Free Personal and Nursing Care in Scotland, a report by Lord Sutherland April 2008

[2] In particular the rulings in MacGregor v South Lanarkshire Council (2001) SC502 and Argyle and Bute Council v The Scottish Public Services Ombudsman (2008) SC155

[3] Argyle and Bute Council v The Scottish Public Services Ombudsman (2008) SC155

[4] Audit Scotland report on Free Personal Care (Jan 2008)

[5] (Huxley et al 2006)

[6] (Melanie Henwood & Bob Hudson)