Coronavirus (Scotland) (No. 2) Act 2020: advisory note on emergency directions and intervention orders etc.

Powers to purchase care home and care at home services

58. If a care home or care at home service is unable to continue to care for individuals, it is essential that there are plans in place to ensure that people using the service continue to receive care. There are many local initiatives that may support services, particularly from the relevant Local Authority and Care Inspectorate.

59. Provisions within the Coronavirus (Scotland) (No.2) Act 2020 put beyond doubt that where a provider is unable to continue to deliver care due to a failure of service either due to: financial distress; risk to the life, health or wellbeing of an individual; or that the provider has recently stopped providing services, that a Health Board (directed by Scottish Ministers) can purchase a care home or a Local Authority can purchase a care home or a care at home service, where a provider is willing to sell. Purchases may also include the assets or liabilities of the service provider.

60. These powers can only be used for a voluntary purchase where the provider is willing to sell. They do not allow for a compulsory purchase. These provisions bolster the purchasing powers already available to Local Authorities and Health Boards. It is therefore expected that pre-existing guidance and advice on purchasing a care home or care at home service, upon agreement of a provider willing to sell, be considered alongside this advisory note. Where there are specific queries on individual circumstances the Scottish Government expects to work closely with local partners to support where necessary. Specific enquires should be directed to Scottish Government via CareHomesCovidSupport@gov.scot.

61. During the Covid-19 pandemic it is critical that sufficient powers are available to public bodies to ensure that a voluntary purchase can be made of a care home or care at home service where there is a failure to continue to deliver services. This is particularly critical in care homes where it can cause a detrimental impact on an individual’s health and wellbeing, to move them from their home. In the current situation, any plan to transition an individual to a new home becomes more difficult with the risk of transmission and/ or infection. It was therefore important to put beyond doubt that both Local Authorities and Health Boards had the power to make such interventions, if required.

62. These emergency purchasing powers ensure the continuity of care for the people using these services by allowing them to stay in their current care settings and by continuing to receive care from familiar staff. They also provide reassurance to the families of those who use services and to the staff who provide these.

Local Interventions

63. It is recognised that a range of professionals from across health and social care are involved with the care and support of those who use care home and care at home services. Where a service is struggling to provide the high levels of care that are required, we would to expect a partnership approach to be taken in order to provide support to the service.

64. There are local interventions available to support care services before these powers would be required to be used. The Scottish Government has implemented a range of measures to support the social care sector, including initial funding of £50 million to address challenges highlighted by Integration Joint Boards’ mobilisation plans. Should a care service encounter difficulties however, further local support can be provided by Local Authorities, Health Boards and/ or the Care Inspectorate. This support can include the provision of extra staff, staff training or providing oversight to the managing of services. Should these difficulties result in the standards of care falling, the Care Inspectorate may choose to issue an improvement notice. This gives the care provider the opportunity to address the issues identified by the Care Inspectorate with the support of partners.

Circumstances in which the powers may be used

65. Although there is extra support and alternative measures available to support the sector, these purchasing powers provide a safeguard for the worst case scenario. For the avoidance of doubt, they do not relate to circumstances which predate the Coronavirus (Scotland) (No.2) Act 2020 which are attributable to long standing financial sustainability or performance related failures.

66. A provider is deemed to be in financial difficulty if it notifies the Care Inspectorate of an insolvency event under regulations 6A, 6B or 6C of the Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011. As soon as practicable after receiving a notification of such an insolvency event, the Care Inspectorate is required to inform the Local Authority and Health Board where the care home is located, the Common Services Agency (NHS National Services Scotland) and Healthcare Improvement Scotland.

67. Where there is a threat to life, health or wellbeing, this would be determined by the Local Authority or Health Board or both, which must act reasonably in reaching that view. Before making any decision to purchase a provider and/ or its assets or liabilities, the Local Authority or Health Board (whoever intends to make the purchase) must consult the following stakeholders to ensure they are making an informed decision:

• The Care Inspectorate;
• Any other Local Authority or Health Board in whose area the services are being provided;
• Common Services Agency;
• Healthcare Improvement Scotland;
• Anyone else it considers appropriate.

68. Consulting in this instance, is to take consideration of the views of the appropriate bodies and stakeholders rather than a formal consultation process.

69. Types of measures which bodies may consider when discussing an impact of service failure due to risk to life, health or wellbeing of an individual could include:

• Where the Care Inspectorate have raised significant concern to Scottish Ministers, or have made clear their intention to apply for the cancellation of a care home service’s registration or have made an application for cancellation to the Sheriff Court.
• Where the Care Inspectorate have used enforcement powers to issue an improvement notice and/or a suspension/ moratorium has been placed on the service due to a lack of improvement.
• Actions or requirement following any relevant criminal investigations or proceedings.
• Where members of the senior leadership in the partnership and the Care Home Clinical and Care Professional Oversight Group^[3] raise serious concerns via their Health Board to Ministers.
• The effectiveness of the alternative measures taken to address the issues facing the care home or care at home service.

70. The Care Inspectorate is already working with care providers across Scotland and their inspection reports identify any necessary improvements and will be an essential tool in determining the threat to life, health or wellbeing. If such a scenario was occurring, it could be that the Care Inspectorate would have already issued improvement notices, applied for the service to be deregistered or informed Scottish Ministers of a serious risk to those at the care home, in which case, Scottish Ministers may temporarily intervene using the new emergency intervention powers. There may be cases however, where due to the nature of a crisis situation, events unfold quickly. Therefore these interventions by the Care Inspectorate are not a necessity before the purchasing powers can be used but may be considered as alternatives if not already done so.

71. Where a provider has recently ceased providing services, this may be another consideration for a Health Board, directed by Scottish Ministers, or a Local Authority to purchase a care provision.

Staffing

72. Where a Health Board or Local Authority purchases a service using these powers, it is expected that the new owner will continue to employ the same staff, should the staff choose to remain, to ensure the continuity of care. The Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended, (TUPE) will apply.

Further Considerations and Financial Implications

73. Ultimately when acquiring any business or asset there are a number of factors which should be considered when making a decision on whether it would be appropriate to purchase. This includes:

• Impact on individuals
• Viability to continue to deliver services within the current infrastructure
• Operational Management
• Current configuration of provision in the area
• Financial costs
• Value for Money on any public sector purchase must be shown and whether this approach is affordable.

74. The final decision to pursue a voluntary purchase will lie with the service provider and the purchasing body – either the Health Board (which may be directed by Scottish Ministers) or the Local Authority.

75. A Health Board or Local Authority can purchase a care home, where there is agreement and a Local Authority can also purchase a care at home service, where there is agreement. Where a Health Board or Local Authority considers that they would require financial support to make a purchase we would expect that body to engage with Scottish Government very early in the process to ensure requirements for financial support are discussed and options explored.

76. Where a provider goes into administration, rather than an individual service failure, there would require to be further consideration from multi-agency partners to agree the best approach in providing support. The factors above would be relevant but there would be additional information sought, for example, whether this is a provider based only in Scotland or one that provides services across the UK. Pursuing a voluntary purchase would also depend on what alternative options are available and what is in the best interests of the care home or care at home service users.

77. If there was a failure of a provider in Scotland which connected to a number of services the initial step would be for the National Contingency Planning Group (NCPG)^[4] to convene to discuss practical next steps. The NCPG continues to be the forum where relevant parties discuss individual matters or concerns on an ad-hoc and required basis. It is not for this group to make decisions or to provide advice but this Group has a role in bringing together relevant bodies nationally to understand the position and potential impact as best as possible. There are a range of measures which may be discussed, and depending on the outcome of these conversations the relevant bodies – the Local Authority, Health Board or Scottish Ministers, in their individual respective roles - will consider whether using these purchasing powers are deemed necessary. Ultimately, the purchasing body, or that which has been directed by Scottish Ministers, will make the judgement on purchasing multi-services as part of a provider going into distress.

78. With the agreement of the provider, the purchasing body may purchase any asset or liability of the provider, this could include a single service of a franchise or a multi-owned service. The terms of purchasing a single service would be part of the discussions and negotiations which take place as part of the transaction.

79. Where a Health Board is the lead in making a purchase it will also be important to consider the point of charging people who use the service. The powers put in place to purchase services are not new, but they put beyond doubt the ability for Health bodies and Local Authorities to do so. When agreeing to purchase a provision due to service failure relating to coronavirus the same considerations should continue to be made as they would do at any other time. This would include matters such as charging people who use the service.

Purchasing a Service

80. If the Local Authority is to lead on the purchase of either a care home or care at home service then they need agreement from the service provider. If the Health Board is to lead on the purchase of a care home then they need agreement from the service provider and may receive a written and published direction from Scottish Ministers. This direction can be varied or revoked by Scottish Ministers if deemed necessary. Care at home services may not be purchased by Health Boards.

81. The new owner will be held to the same standards as any other operator of these services and will be required to address the issues that led to the sale.