Information > Briefings > Regulation of Care (Scotland) Act
August 2001
The Regulation of Care (Scotland) Act received Royal Assent on 5 July 2001. It marks the start of major changes in the way in which social care is regulated including the establishment of potentially the most influential new social care institution created in Scotland. This briefing paper is in two parts. Part one provides an overview of the Act. Part two highlights a number of important issues regarding implementation and what it will mean for service users, raised during a Scottish Council for Single Homeless (SCSH) briefing session in May 2001.
The Act establishes two new independent bodies:
The Scottish Commission for the Regulation of Care ("The Commission") which will regulate care services in Scotland. The Commission will undertake the registration and inspection of care services against a set of national care standards (as published by Scottish Ministers) and the taking of any enforcement action; and
The Scottish Social Services Council ("The Council") which will register social service workers and promote and regulate their education and training.
Both will be non-departmental public bodies, independent in their day-to-day running but accountable to Scottish Ministers. The Commission is scheduled to take on responsibility for regulating those services regulated at present from April 2002 and the remaining services as soon as possible thereafter – probably by April 2003. The Council will assume its responsibilities in October 2001. Initially both bodies will be funded wholly through Government grants although in the longer term they will be expected to meet their own costs through the charging of registration fees.
The new framework replaces current arrangements whereby regulatory functions are split across 32 local authorities and 15 health boards – all potentially operating to different standards and procedures. It also shifts the emphasis in setting and measuring standards from inputs (numbers of staff; size of rooms, etc) to outputs (users’ experience of services). The Act also addresses the problem that, besides different services being regulated in different ways, some very important services (including home care) are currently not being regulated at all. For example, until now, there has been no independent inspection of local authority services. Under the new system of regulation, all services will be independently regulated.
The proposed role of the Social Services Council addresses the lack of comprehensive workforce regulation in the personal social services to bring them into line with other allied fields such as teaching, nursing and medicine. The Council will offer a formal mechanism to track people in the workforce who are unsuitable for the job they are doing, offering better protection to those who have suffered exploitation or abuse. It will also provide a framework to enhance the professionalism of the workforce.
The Act is divided into five parts:
Part 1 – The Commission and Care Services: This section makes provision for the establishment of the Scottish Commission for the Regulation of Care which will regulate care services; lists services to be included as care services; provides for establishing care standards; provides the framework for establishing registration, inspection, enforcement, offences, fees, transfer of staff etc.
Part 2 – The Council: This section makes provision for the Scottish Social Services Council which will set up and administer a register of workers in the social services workforce; provides for the introduction of Codes of Conduct and Practice for workers and employers; provides a framework for registration, de-registration and rules, appeals, offences and the functions of Scottish Ministers in relation to the Council.
Part 3 – Provisions Common to Commission and Council: This section makes some general provisions in relation to the Commission and the Council including grants and guarantees, duty to consult, complaints, inquiries and maladministration.
Part 4 – Miscellaneous: This section includes some consequential provisions as well as taking the opportunity to make needed changes to other social work legislation: CCETSW: cessation of Scottish Functions – Grants, loans and other payments – Nursing in local authority residential accommodation – Place of Safety – Panels – (Curators ad litem, Reporting Officers and Safeguarders).
Part 5 – General: Interpretation – Orders and regulation – Minor and consequential amendments – Repeals and power to amend or repeal enactments – Short title and commencement.
From April 2002 the commission will take responsibility for inspecting and regulating almost all forms of residential and domiciliary care, as well as adoption and fostering agencies, schools, nursing agencies and day centres. Inspection and support staff currently working for local and health authorities will be transferred to the employ of the new body, and from April all inspections of these services will be carried out by the commission.
The term ‘care services’ covers:
The Executive’s definition of a care home is ‘any home which provides accommodation together with nursing, personal care or personal support, for persons on the grounds of their vulnerability or need’. Now the Regulation of Care (Scotland) Act has become law the previous legislative distinction between nursing homes and residential care homes has ceased. From April 2002, all existing homes & new homes will be known as "care homes". One of the reasons for this was to change the law to allow homes which are currently residential homes to meet their residents’ nursing care needs.
Supported accommodation projects are not included within the definition. The commission will review existing registered services but is not the intention to register projects whose primary aim is accommodation. However such projects may be monitored separately under the different arrangements being set up in relation to Supporting People grants.
It is not the Executive’s intention for the Commission to regulate field social work at present. However there was provision made within the Act to extend the scope of the regulation should it be felt appropriate in the future.
To simplify the current system and improve consistency the commission will base their registration assessment and inspections on new national standards. These standards have been developed by the Scottish Executive over the last year or so and are expected to be available in final form by the end of 2001 prior to the commission’s duties starting next April. The Executive has published draft standards for consultation in 3 tranches, the third of which went out for comment in August 2001.
The Care Standards cover:
Services which are regulated currently by a local authority or a health board become subject to inspection against the care standards from April 2002. Other care services which are not currently regulated but which are going to be regulated by the Commission will come on stream as soon as possible thereafter. All new services being registered for the first time after April 2002 will be inspected against the standards.
Registration of staff employed in care services will be phased in view of the size of the workforce providing care. Although Ministers have yet to approve the detail, it is likely that the first key groups of staff to be subject to the new system will be as follows.
Phase 1 qualifications based registrations by the Council will be applied to:
Phase 2 regulation will apply to:
Work on the registration process and developing how this will happen has commenced already by the Executive. Given the size of the IT system necessary to support the whole process it is possible that the first actual registrations may not be granted until early in 2003.
Application for registration with the Council will only be successful if the Council is satisfied that the applicant:
Fees for registration will be approved by Ministers. Fees are expected to be in the region of £20 per person per annum. Proposed charges for residential homes are recommended to rise from £65 per bed by £10 each year for the next three years. Voluntary providers of daycare services for children will see increases in fees for registration of 10% per year for the next three years. Other care services which are not currently regulated will also be affected since it is intended that all regulation will be self financing. The Executive has indicated beyond 2004 it is anticipated there will be a 100% increase in registration fees for residential care homes.
In addition to registration itself employers and employees are expected (under the terms of the new legislation) to sign up to a new code of practice which will be issued.
Both the Commission and the Council will have their new headquarters in Dundee. The Commission will have 5 regional offices and a network of local resource centres (which will mainly be a local contact point for inspection staff).
The Scottish Executive Website at www.scotland.gov.uk has a lot of useful information on the Regulation of Care Act and its various provisions.
Points raised at SCSH Members’ Briefing
On 4th May 2001, SCSH held a briefing on the Regulation of Care (Scotland) Act. A discussion session raised areas of concern and points on which clarification is required. The following is a summary of the views expressed.
SCSH and its members broadly welcome the Executive’s approach, particularly the person focused standards and the opportunity for improved services, greater consistency, a new forum for service development and a more level playing field between providers in the voluntary, private and public sectors. Our main concern is that there also needs to be safeguards, in particular sufficient extra financial assistance, to ensure that small scale organisations are adequately protected. The new regulatory standards and fees for registration will mean extra financial burdens which some services will not be able to manage themselves in an environment where Ministers expect the Commission to be self-financing.
The Commission is going to have considerable autonomy to decide what it will charge for and how much those charges are going to be within the confines of what it thinks it needs to meet reasonable operating costs. However there appears to be a ‘risk’ of some services being placed in financial difficulty if the setting of charges is not handled sympathetically. Voluntary organisations will also face extra costs associated with ensuring their recruitment, training, complaints and disciplinary procedures comply with the requirements of the Commission.
SCSH strongly supports attempts to improve the quality of care services – it is how quality is defined which most concerns us. Generally we welcome the approach taken in the Draft National Care Standards to focus on the outcomes of the service as experienced by the service user rather than on prescriptive physical and technical building standards. However it is not clear how the Draft Care Standards Consultation fits with ‘The Future for Care Homes for Adults in Scotland’ Consultation Paper also issued by the Executive for comment during 2001.
The latter focuses primarily on inputs such as provision of space standards and en-suite bathrooms. There is a real concern that if this approach is followed for Care Homes, it could threaten existing residential services. It would also hinder the development of innovative new services on technical grounds that many service users would not consider impacts on the quality of the service they are receiving. SCSH has highlighted its worries about this in its response (copies available) to the Care Homes Consultation document in July 2001.
There is also very little information yet about how the standards will be enforced and how rigidly local inspectors will apply the standards. When a residential or nursing home is being assessed could exemplary care and service in other areas overcome the fact that some rooms may be 12 inches too small. SCSH believes flexibility will be needed in the application of the standards in order to ensure a variety of quality services is maintained. There will need to be a balance between, for example, building standards and the need to allow continued use of listed buildings. Care home service users should not be excluded from certain communities as a result of over prescriptive building standards.
It would also be interesting to know how much influence the views of the service users will have on a local inspector’s final report. It would be unacceptable if the Commission were to be put in the uncomfortable position of having to enforce standards which unintentionally create a crisis where before there was order. SCSH’s main concern is that the changes must improve the lives of vulnerable people, not lead to damage or disruption.
The need for more trained staff could be problematic, unless extra funding is forthcoming. Care workers (while dedicated) can be poorly paid, badly trained and transient and training can be expensive. How are service providers expected to address, for example, the probability that a far greater number of people in the workforce are going to have to gain an SVQ (or equivalent basic qualification) over the next five years? What happens if two care staff employed by a small voluntary sector project or service provider leave in the same week, unexpectedly leaving the manager with a service provided by 25% trained staff as opposed to 50%?
An equally pressing question may be how such services with tight budgets can afford to send a succession of staff on training or development courses and replace them while they are gone. We have recently heard reassuring messages that the Council will be allowing a sensible amount of time for staff to gain necessary qualifications but it is not clear who ‘pick up the tab’ on training and staff development.
While generally welcoming the co-ordinated approach that the introduction of the Commission and the Council will bring SCSH also feels there needs to be some parallel ‘protection’ built in to allow the legitimate involvement of government at a local level to continue. The many good working relationships that exist at present between local authorities and local groups are crucial to safeguarding vulnerable adults and children. This should not be lost. Some SCSH members are concerned that the views of local organisations will now take second place to national priorities like economy of scale and service costs.
There are also some worries about social workers being given an unreasonable amount of influence. SCSH believes the regulatory framework should be ‘tweaked’ to ensure users, carers, service providers, local elected members and so on carry on having an opportunity to contribute positively from a local perspective.
The overlaps between regulation of care in its wider sense (under the Care Act) and the regulation which will now take place for grants being paid out under Supporting People is something most in the field are generally aware of – but which few feel has been fully explained. Clearly there needs to be a consistent ‘line’ within the Executive which ensures that the two separate regulatory systems are complementary and compatible and that how each will work is communicated to all those who need to know.
SCSH, through its representation on various Executive working groups, will continue to seek to ensure that:
Regulation is based on outcomes as experienced by service users and is not ‘hamstrung’ by input related measures e.g. Space standards
Links between the regulation of care services by the council and the regulation of supporting people are developed with the objective of ensuring that the two different regulatory systems complement each other
The timetable for implementation by the commission and the council is realistic and based upon genuine consultation with service providers
Implementation of workforce registration in the care field is developed in such a way as to recognise the benefits of having a diverse workforce with different qualifications & experience.
© 2001 Scottish Council for Single Homeless
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