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

Executive Summary

The Scottish Government is exploring whether providers of care homes and ‘care at home’ services can be considered to be providing functions of a public nature. This determination will then inform the Scottish Government’s decision-making regarding the use of Ministers’ powers to extend the Freedom of Information (Scotland) Act 2002 (FOISA) to such services. A public consultation ran between 5 January and 30 March 2026. Across 14 questions, of which five contained a quantitative element, the consultation sought views on various aspects of how such a FOISA extension might work in practice, if implemented. In total, 136 consultation responses were received, from 67 individuals and 69 organisations. This report provides an analysis of these consultation responses.

Whether to extend FOISA to care homes and ‘care at home’ services

Just over half (52%) of those answering felt FOISA should be extended to private and third sector run care homes. Almost two thirds (65%) of individuals supported this idea, compared to one third (37%) of organisations. Reasons for support included that there should be greater transparency, that care homes provide a public service, that these services support vulnerable people, that families need assurance, and that access to information should be a right. However, open comments were more likely to express opposition. Some of the reasons for opposition were raised in response to multiple questions, such as concerns about workload and cost, and the view that existing arrangements were sufficient. The potential for the release of sensitive information was also highlighted.

Slightly fewer respondents (50%) felt FOISA should be extended to ‘care at home’ services in the third and private sectors, again most supported among individuals (64% compared to 35% of organisations). Similar considerations to those for care homes were noted by respondents. Additionally, perceived difficulties separating ‘care at home’ services from other types of support were noted.

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

According to just over half (53%) of those answering, if care home and ‘care at home’ services were to be made subject to FOI law, then this should apply to all such services irrespective of funding, while a third (36%) felt only information about services that are mainly publicly funded should become subject to FOI law. One in ten (10%) held no view. In open comments, views as to how it could be based on public funding were provided, such as to base it on public statutory duties, when public income reaches a certain threshold, or to base it on local authority clients only.

Services provided to children and young people

Over half (55%) of those answering felt any extension of FOISA that might take place, should include such services delivered to children and young people. However, a quarter (26%) disagreed, and one in five (20%) had no view. Over two thirds (69%) of individuals agreed, though organisations held more mixed views (39% agreed, 28% disagreed, and 33% had no view).

Respondents felt that similar considerations as for adult services would apply. Comments centred around concerns regarding privacy and anonymity, protection and safeguarding considerations, improved accountability, and the rights and participation of children, young people and their parents/carers/guardians.

Position of smaller providers

Almost three quarters (74%) of those answering felt size should not have a bearing on whether a provider is made subject to FOISA. Those who felt size should have a bearing were most likely to indicate that only the largest providers should be subject to an extension. This was the case for both care homes and ‘care at home’ services. Reasons given for why size should not have a bearing included that it was important to create parity, that previous extensions did not differentiate by size, and that size can fluctuate. Suggestions were given for alternative approaches, and the potential for vexatious FOI requests to cause burden for small providers was highlighted.

Support for stakeholders if FOISA is extended

A wide range of suggestions was provided on what would help care providers discharge their obligations under FOISA. These included guidance, training and support, templates, funding, addressing implementation concerns, advice or legal support, and monitoring or scrutiny. Aspects felt to be of benefit to people who access social care and other members of the public included accessible information, guidance, awareness-raising campaigns, advocacy or person-based support, and transparent and consistent processes.

Topics people may seek information about

Many categories of information were suggested that could be the subject of an FOI request, though some felt it was not possible to determine in advance. Potential categories included information on staffing, finances, complaints and incidents, performance or quality, regulatory matters, operational policies and matters, individual care, facilities, governance, contractors, occupancy and services.

Impact assessments

Respondents’ views on impact assessments included many of the overarching themes as well as concerns about market impacts on the care sector, data implications, privacy and human rights considerations, including the need to balance transparency with the rights of individuals.

At the same time, respondents highlighted a range of potential benefits, including that extending FOISA could improve transparency, accountability, oversight and access to information, and increase people’s ability to scrutinise services. Respondents most frequently identified older people as a group that could be disproportionately impacted by extending FOISA, in a beneficial way.

Suggestions for mitigating any unintended consequences from the proposed extension were also noted at this section.

Conclusion

Overall, there was majority support for the suggested FOISA extension presented in the consultation. Respondents also highlighted considerations they felt should be addressed if the proposals are implemented. Concerns were raised about the capacity of providers to take on the role of responding to FOI requests. However, an extension was also seen as having the potential to enhance the rights of people who use care services and their families and improve the transparency and accountability of services.