Care sector - proposed Freedom of Information extension: consultation advisory subgroup 2 minutes: April 2025

Attendees and apologies

Attendees

The following organisations were represented:

Apologies:

• Care Inspectorate
• Social Workers Union
• Who Cares Scotland
• Scottish Government, Directorate for Children and Families (DCAF) Official

External stakeholders:

• Campaign for Freedom of Information in Scotland (CFOIS)
• Scottish Care
• Age Scotland
• The ALLIANCE, Health and Social Care Alliance Scotland

Internal stakeholders:

• Scottish Government, Directorate for Children and Families (DCAF) Officials
• Scottish Government FOI Unit Officials

Items and actions

Items and actions

Welcome/Introductions

The chair gave a brief introduction and welcome address, after which everyone was given the opportunity to introduce themselves.

An overview of the proposed extension was provided and how the FOI Unit hopes the group will support with shaping the approach to the consultation.

Testing views on principle of FOISA extension – what information do respondents need to form a view?

A range of views were expressed in relation to the proposed extension.  In support of extension it was suggested that there has been an inconsistency since FOISA was enacted between the position of social care and primary care providers -  the latter of which having been included in FOISA since the legislation was passed.  Concern was expressed about the perceived slow pace of moves towards extension.

Against extension it was suggested that whilst there is a need for transparency in the sector this can be better achieved by making existing information monitoring and reporting systems more accessible, negating the need for legislative change. The complexity of the sector and current concerns about the viability of the sector - threatening closure of services – were highlighted. In light of these it was argued that any additional pressures on providers would be unwelcome.  A deeper understanding of the sector would be required to help avert ‘unintended consequences’ of any proposed extension.

Others commented on the value of exploring the benefits of the proposed extension through the consultation whilst understanding the complexities and challenges of the sector, such as financial constraints and lack of resource, and how these could be mitigated.

There was enthusiasm for the principle of greater transparency, but a desire for caution on the part of some participants about whether statutory FOI rights were the most appropriate vehicle for pursuing it.  The need for sufficient time to be provided for responses to the consultation was raised.

A different perspective expressed some concern that the emphasis of the discussion was too focussed on the organisational difficulties of providers, when it should also be about enforceable rights of individuals and empowerment of the public.

Describing functions of a public nature:

• Are Public Services Reform (Scotland) Act care definitions sufficient?

• What role (if any) should public funding play?

There was discussion on the practical difficulties of making distinctions between different service types and funding models. 

The fundamental requirements for duty bearers under FOISA were discussed.

One perspective in the group was that, in consideration of the scope of services to be covered by any extension, public functions should play a key role. Careful thought should be given to smaller organisations, and the type of services to be covered first, if a phased designation is proposed.

It was confirmed that thinking so far within the Scottish Government FOI Unit has identified a care home service in terms of the definition provided in section 47 and schedule 12 of the Public Services (Reform) Scotland Act 2010 (PSRA) and ‘care at home’ being understood as a sub-type of ‘support service’ (also as defined by PSRA), by the Care Inspectorate for registration and inspection purposes.  This is understood to be any ‘support service’ where any aspect of the service is delivered to an individual in their own home.

A question was asked about the number of providers in scope of the commitment to consult.  It was confirmed that Care Inspectorate data indicates there are 2,173 care home and ‘care at home’ services in total, delivered by 1,069 distinct providers.  Of those 1,119 are care home services delivered by 516 distinct providers.  There are some providers who deliver both types of services.

Another viewpoint emphasised the significance of existing regulation in the sector, which already provides substantial assurance and transparency around the approach to delivering services.

Handling differences of provider size/type in consultation.

One perspective in the group emphasised that FOISA designation could bring challenges for providers of all sizes - not only smaller providers. There was reflection on the differences in levels of funding received by individuals and service providers. This suggests there could be difficulty in carving out services for designation through public funding. Hence, careful thought to be given about whether scoping services by funding is the way forward. Thought is also required as to whether entirely privately funded care services should be included in the extension or not.

It was highlighted that in the previous extension to RSLs certain functions of RSLs considered to be wholly private in nature had been carved out of the extension i.e. ‘factoring’ services to home owners.  However, this may have made FOI obligations more challenging for those organisations to administer.  It had also been opposed at the time by some FOI rights advocates as a matter of principle – on the basis that factoring services could in fact be considered public services under human rights law.

A different perspective advocated that existing reporting systems in the care sector could be strengthened for increased transparency which could be a better route rather than the proposed extension.

There was a discussion about the definition and funding of children’s services, with a call for greater clarity about which services for children are in scope of the commitment to consult.

The Scottish Government understanding was that care home and ‘care at home’ services delivered to children would be in scope of the commitment in the same way as similar services delivered to adults.

There was a discussion of workforce pressures, and the implications of these for the sector’s ability to implement FOISA.

Handling differences of provider size/type in consultation.

It was noted that it may be difficult to define what a ‘small’ organisation’ is, if seeking to treat such organisations differently for the purpose of any extension.

There was a discussion about the operation of FOI law in the primary care sector where many small and medium-sized privately operated organisations have been subject to FOI law since 2005.  The experience of this sector may offer lessons for the care sector also.

Action: Scottish Government FOI Unit to explore with the Scottish Information Commissioner’s team their experience with the pharmacy sector/other primary care providers and share it with the sub-group to feed into considerations on size of organisation and likely experience.

A number of participants shared the view that there was a need to give particular consideration to the needs of smaller care providers, in relation to any extension.

Another perspective opposed carving out small care providers, since FOI requests should be expected to be received in approximate proportion to the size of the organisation.

The struggles of the care sector, in relation to funding and resources were highlighted by others, expressing concern that the proposed designation would potentially burden small providers at a challenging time.

A different concern was raised that, whilst consideration should be given to the needs of smaller providers, exempting of from designation by size of provider could restrict growth in the sector.

There was agreement about the need to have a clear meaning or definition of a small organisation.

Widespread public support for extension was highlighted. A recent survey by the Scottish Information Commissioner was referenced (see: Public awareness of FOI | Scottish Information Commissioner.)

The importance of having all voices in the care sector heard in the consultation was highlighted.  In particular, it was suggested that the views of those closest to the delivery of services (frontline staff, relatives of care home users) must be actively sought in the consultation.

Handling of services for children and young people.

Concerns were raised that it would be an impingement of children’s right to information if children’s services were excluded from the scope of any extension. There was a discussion of service types outside of the current commitment to consult – such as kinship care and foster care.  Some participants who are generally supportive of extension in the care sector would recognise concerns about future extension in those areas.

Overall there was little support in the group for carving out children’s services from the extension, whilst recognising consideration of the needs of these services.

The chair gave a brief summary of the views and the next steps for the Subgroup.

 Any other business

Proposed date for next meeting: WC 21 April 2025.

End of meeting

Meeting closed at 12:30 pm.