Care home and 'care at home' service providers - FOISA extension: consultation

4. Care Home and ‘Care at Home’ Services in Scotland

A care home service is a service that provides accommodation together with care to meet an individual’s needs, which might include nursing or personal care or support. The Public Services Reform (Scotland) Act 2010 (the 2010 Act) provides an existing statutory definition of a care home service:

a service which provides accommodation, together with nursing, personal care or personal support, for persons by reason of their vulnerability or need; but the expression does not include— (a) a hospital; (b) a public, independent or grant-aided school; or (c) a service excepted from this definition by regulations.^[1]

A ‘care at home’ service provides personal care or support to a person within that person’s home. ‘Care at home’ means getting help in one’s own home with everyday tasks. This can include things like:

• Getting dressed
• Taking a bath or shower
• Making meals
• Taking medicine

‘Care at home’ services are regulated by the Care Inspectorate as a ‘sub-type’ of ‘support service’. Support services are classed as ‘care at home’ wherever they provide personal care or personal support to a person within that person’s home. A support service also has an existing definition in the 2010 Act:

(1) A “support service” is a service provided, by reason of a person's vulnerability or need (other than vulnerability or need arising by reason only of that person being of a young age), to that person or to someone who cares for that person by—

(a) a local authority;

(b) any person under arrangements made by a local authority;

(c) a health body; or

(d) any person if it includes personal care or personal support.

(2) But—

(a) the expression does not include a care home service, an independent health care service (within the meaning of section 10F of the National Health Service (Scotland) Act 1978 (c. 29)), a service which provides overnight accommodation, an adoption service, a fostering service or a service excepted from this definition by regulations;

(b) paragraphs (c) and (d) do not apply where the provider is a health body acting in exercise of functions conferred by the National Health Service (Scotland) Act 1978 (c. 29);

(c) paragraph(d) does not apply if the provider is an individual who personally and solely gives the care or support in question.^[2]

‘Care at home’ services enable individuals to live independently or with greater autonomy. They generally provide care tailored to the individual's specific requirements all with a view to promoting the well-being and quality of life of the person receiving care while maintaining their dignity and rights.

The Care Inspectorate has specific duties to carry out yearly, unannounced inspections of the following categories of care services:

• Care Home
• ‘Care at home’
• Secure accommodation^[3]

These duties reflect the need for robust regulation of these services, recognising their central importance in providing services, often for vulnerable individuals.

Providers of secure accommodation have been subject to FOI law since 2016.^[4] Extending FOI law to care home and ‘care at home’ services, or even some of these services, would have the effect of making all three categories of service for which there is an enhanced level of regulation and inspection subject, at least in part, to FOI law.

4.1 Provision of care home and ‘care at home’ services in Scotland

According to Care Inspectorate registration data, as of 31 January 2025 there were 1,351 care home services in Scotland of which 823 were operated by private sector providers and 290 by voluntary or not for profit providers. There were 223 care home services operated by local authorities and 15 by NHS Boards.

Also, as of 31 January 2025 there were 1,232 ‘care at home’ services in Scotland. Of these 567 were operated by private sector providers, 480 by voluntary or not for profit providers, 170 by local authorities and 15 by NHS Boards. Of the 1,047 private and third sector operated ‘care at home’ services, 615 were operated as part of a combined service with a Housing Support Service.^[5] Housing Support Services deliver services to support individuals to live as independently as possible in a range of settings including – but not limited to – sheltered housing.^[6]

Both categories of service – care home and ‘care at home’ – include all care which meets the statutory definitions set out above, no matter whether the care is intended to be long or short term in duration. Some providers specifically offer services intended to meet short term or respite care needs.

1. Do you agree that FOISA should be extended, where possible, to private and third sector (charity and not-for-profit organisation) run care homes?

Yes / No / No view

Please use the space below to set out your detailed views:

[please insert response here………………….]

2. Do you agree that FOISA should be extended, where possible, to private and third sector (charity and not-for-profit organisation) run ‘care at home’ services?

Yes / No / No view

Please use the space below to set out your detailed views:

[please insert response here………………….]

4.2 The role of public funding in identifying functions of a public nature

There is substantial public funding of both care home and ‘care at home’ services in Scotland. This is mainly delivered by local authorities, operating as part of local Health and Social Care Partnerships. It is clear that this public funding is one factor informing calls for extension of FOI law to this sector. However, it is also clear this is not the only reason.

Care home and ‘care at home’ services are recognised as providing critically important services for those who rely on them. These services are subject to significant regulation and oversight, whatever funding arrangements are in place for an individual’s care.

In the care home sector, 64% of places are either wholly or mainly funded by the relevant local authority.^[7] To be eligible for a publicly funded care home space the recipient must not have assets worth more than £35,500 for 2025/26.^[8] Interim standard rates paid by local authorities for 2025/2026 are:

• £1,013.05 a week for nursing care
• £881.98 a week for residential care^[9]

Individuals entitled to this funding may choose to ‘top up’ this funding with their own money, if they wish to live in a care home which charges higher fees than these.

The remaining 36% of care home places are mainly funded by the person receiving the care. Nevertheless, those who mainly fund their own care are normally eligible for some funding in the form of ‘free personal care’ and ‘free nursing care’ payments which are currently set at:

£254.60 each week for personal care

£114.55 each week for nursing care.^[10]

Care homes are not unique in delivering both publicly funded and privately funded services. Providers of primary care (GPs, dentists, opticians, pharmacists) have been subject to FOI law in Scotland since FOISA came into force in 2005. However, FOI law only applies to the services they deliver on behalf of NHS Boards. Information about similar services delivered privately to individuals is not subject to FOI law.

Similarly, Registered Social Landlords were made subject to FOISA in 2019 in relation to most of their functions, but not for the provision of factoring services provided to and paid for by home owners.

The care home sector may however be somewhat unique in the extent to which very similar services may be supported by a different mix of public and private funding from one individual to the next.

In the ‘care at home’ sector there is also wide entitlement to ‘free personal care’. Nursing care required by people in their own homes is provided by the NHS and is not included within the definition of ‘care at home’.

Statistics for ‘care at home’ only exist for services in which the local authority has some role in organising or funding the care. Where the local authority has determined that an individual requires ‘care at home’, those aspects of the service which relate to an individual’s personal care should be provided free of charge. An estimated 65,780 adults in Scotland received ‘care at home’ - with local authority involvement - in the last week of 2023-24. It is estimated that around £739m was spent on personal care for adult ‘care at home’ clients in 2023-24.^[11]

Distinguishing publicly funded ‘care at home’ services from privately funded ones may be more straightforward than in the care home sector. Where a local authority has determined that an individual needs personal care or support at home it is ordinarily required to provide that care free of charge. Individuals may decide to pay for additional services which fall outside the definition of personal care or which the local authority has not assessed them as needing. However, these would be additional to any services which the authority had assessed the individual to need.

Publicly funded ‘care at home’ might therefore be defined as those personal care and support services which a local authority has a duty to fund. In light of the above:

3. Whether or not you actually support any extension, please indicate which of the following statements best reflects your view:

a) If FOI law were to be extended to care home and ‘care at home’ providers, information about all such services should, where possible, become subject to FOI law, irrespective of the level or type of public funding that supports those services.

b) If FOI law were to be extended to care home and ‘care at home’ providers, only information about such services which are mainly publicly funded should, where possible, become subject to FOI law.

c) No view.

3(a). If you chose option ‘b’ above, please set out any more detailed thoughts you may have on the type or level of public funding that should result in the provider becoming subject to FOISA :

[please insert response here………………….]

4.3 Services provided to children and young people

Care home and ‘care at home’ services both sometimes provide services for children and young people, under the age of 18. These do not include care provided to children or young people solely because of their young age e.g. childcare. They also do not include other care service types commonly associated with children and young people such as adoption and fostering services or kinship care. However, they do include care home and ‘care at home’ services provided to those under the age of 18, in order to address a particular vulnerability or need.

On 31 January 2025 there were 1,113 private and third sector run care home services in Scotland. Out of these, 237 provided services to children and young people. Children’s care homes are often small in scale, providing services to only a small number of children – or even to one child only. The largest private or third sector care home for children registered with the Care Inspectorate had 28 registered places. The average number of registered places per service was 4.5.

In comparison, the largest care home for adults registered with the Care Inspectorate had 225 places. The average number of places per service in adult care homes was 40.9 registered places.^[12]

Whilst issues of provider size are discussed in the following section, the Scottish Government recognises that the generally small size of individual services in the children and young people’s sector may give rise to issues in relation to FOISA compliance, that would merit special consideration. This may be the case even where the service is delivered by a larger organisation, which also delivers other similar services. Firstly, with very small services there may be an increased likelihood that information about the delivery of the service may be considered exempt from disclosure on data protection grounds (e.g. where releasing information about a service would implicitly confirm details of an individual child’s care, due to small numbers).

There could also be particular challenges in very small services in balancing the resource demands of FOISA compliance with those related to the direct provision of care. Even where the service is supported by a larger organisation, handling information requests about a small service may inevitably place demands on a small number of team members who directly deliver that service. On the other hand, it may also be reasonable to assume that small services could generally expect to receive only small numbers of requests.

Care Inspectorate management data indicates that of the 1,239 ‘care at home’ services registered with the Inspectorate on 31 December 2024, 151 confirmed that they provided services to children and young people. Of these, only one service indicated that it exclusively served children and young people. The other 150 provided services to both children and young people and adults.

Of the 151 ‘care at home’ services providing services to children and young people:

• 54 were delivered by private sector providers
• 78 were delivered by third sector providers

The relevant Care Inspectorate data on ‘care at home’ services for children and young people has been published as an Annex to this consultation document.

Care Inspectorate Datastore figures for December 2024 indicate that there were 1,052 private and third sector ‘care at home’ services in total registered with the Inspectorate in that month.^[13] This suggests that about 10–15% of ‘care at home’ services run by private or third sector organisations include children and young people among those they serve.

There is specific legislation governing the provision of care to children, including the Children (Scotland) Act 1995, Residential Establishments – Child Care (Scotland) Regulations 1996 and Looked After Children (Scotland) Regulations 2009.

There are therefore a number of distinctive features in relation to children’s services which merit specific consideration being given to their needs when considering extension of FOI law.

4. Do you agree that any extension to private and third sector care home and ‘care at home’ services should apply to such services when delivered to children and young people (i.e. people under 18 years of age)?

Yes / No / No view

5. Are there any issues, opportunities or challenges specific to children and young people’s services which require to be considered? If so, please set out how you see these:

[please insert response here………………….]

Responses to this question will be used to assist the development of a Children’s Rights and Wellbeing Impact Assessment.

4.4 Position of smaller providers

As mentioned in the previous section, there is considerable diversity in the scale of private and third sector care services. Care homes range in size from services offering a single registered place, to services offering over 200 registered places.

Some of the smallest services are delivered by larger providers, which run multiple services. According to Care Inspectorate Data, on 31 January 2025 there were 340 care home services offering fewer than 10 registered places. However, many of these were operated by providers operating multiple services.

The following table provides a profile of private and third sector care home providers in Scotland by provider size^[14]:

The above data suggest that very small providers account for a small percentage of registered care home places, with providers offering 10 or fewer places accounting for only 1% of places. However, providers offering 50 or fewer places account for 23% of places – almost a quarter of the provision in Scotland.

The size profile of ‘care at home’ services is more difficult to map, since many do not report on numbers of places or service users. Staff numbers may therefore be the best available measure by which to compare the relative size of different providers.

Many ‘care at home’ services are also combined with Housing Support Services. Where this is the case, only information about the ‘care at home’ part of the service would become subject to FOISA. However, for such combined services it would be challenging to disaggregate staffing of the ‘care at home’ part of the service from staffing of the Housing Support Service.

The table below uses data provided by the Scottish Social Services Council (SSSC) to give a size profile of private and third sector ‘care at home’ providers in Scotland, by staff headcount.^[15]

The above statistics only provide an approximate overview. They are based on data from December 2023 and count every staff member the same, whether they work full time or part time. Some services did not report on staff headcount, so the numbers might not be completely accurate.

Nevertheless, the data suggests that, as in the care home sector, very small providers account for a small proportion. Providers with 10 or fewer staff account for only 1.2% of staff headcount overall. Providers with fewer than 50 staff account for approximately 15% of staff headcount. Providers with over 250 staff account for 51% of staff headcount in the sector.

Some people have expressed particular concern about the impact of FOI obligations on the resources of providers towards the smaller end of the scale. This may be informed by the following concerns:

• That the resource required to ensure compliance with all aspects of FOISA e.g. maintaining a publication scheme and ensuring relevant systems are in place to handle requests may be disproportionate for smaller organisations, who might generally be expected to receive small numbers of requests about their work.
• That small organisations may face particular challenges in ensuring their staff are adequately trained and prepared to handle requests.
• That in the event that any small provider did attract larger numbers of requests the administrative burden of handling these could be excessive and could divert resources from the delivery of care.
• That data protection requirements may present particular barriers to the release of information about services delivered by organisations which support only a small number of people (i.e. where release of service level information would implicitly confirm details of an individual’s care).

Against these it may be considered that:

• Those who receive care from small providers/others with an interest in the services provided by them should not be disadvantaged in comparison with those who receive care from a relatively larger provider.
• The experience in other sectors (Registered Social Landlords, primary care) is that request numbers tend to be proportionate to the size and public profile of an organisation.
• If any small organisation did see a spike in request numbers, this could be for important reasons e.g. a perceived service failure, which ought to be scrutinised.
• Exempting smaller organisations could create unintended incentive effects for providers to avoid reaching whatever size threshold is set for FOISA to apply
• FOISA incorporates provisions which may help to protect smaller organisations from excessive burden. These include the right to refuse vexatious, repeat or excessively costly requests and the right to charge limited fees for requests which would cost an organisation over £100 to respond to.^[16]
• There are other small organisations which are already subject to FOISA and making distinction between providers based on organisation size would be a departure from all previous practice in relation to extension of FOISA.

6. Do you consider that the size of a private or third sector care home or ‘care at home’ service provider should have any bearing in whether that provider is made subject to FOISA?

Yes / No / No view

6(a). If you answered ‘yes’ to question 6, which of the following statements best reflects your views in relation to care home providers?:

a) Only the very smallest providers, offering services to up to 10 people, should be exempt from FOISA.

b) Providers offering services to up to 50 people should be exempt from FOISA.

c) Providers offering services to up to 100 people should be exempt from FOISA.

d) Only the largest providers, offering services to over 1000 people should be made subject to FOISA.

6(b) If you answered ‘yes’ to question 6, which of the following best reflects your views in relation to ‘care at home’ providers?:

a) Only the very smallest providers, with a staff headcount of up to 10, should be exempt from FOISA.

b) Providers with a staff headcount of up to 25 should be exempt from FOISA

c) Providers with a staff headcount of up to 50 should be exempt from FOISA

d) Providers with a staff headcount of up to 100 should be exempt from FOISA

e) Only the largest providers, with a staff headcount of over 1000 should be subject to FOISA.

6(c) Do you have any other comments on the challenges or opportunities that might come from extending FOISA to smaller providers? Please use the space below to set out your views:

[please insert response here………………….]