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

2. Overarching themes

This chapter presents a small number of themes which featured repeatedly in responses to multiple questions. Most commonly, these views were expressed by different respondents at different questions, but sometimes the same or a very similar point would be raised by a respondent across several questions. This chapter presents these general overarching themes, while themes that relate more directly to a question are included later in this report under the analysis of the relevant question.

As noted in the introduction, comments with reasons for opposition were more likely to be made than those in favour of extending FOISA. As a result, it is important to place the overarching views in the context of the closed questions, where 52% of those answering supported extending FOISA to private and third sector run care homes and 50% of those answering supported extending to private and third sector run ‘care at home’ services.

General negative views

Negative views about extending FOISA to third sector and private care homes and ‘care at home’ services were expressed across all qualitative questions, notably at Q3^[1] by many respondents, and Q7 by several respondents. Where reasons for opposition to FOISA extension were given, these included:

• It would alter the legal status of independent providers by treating them as public bodies despite not exercising public authority, determining public policy or controlling the allocation of public funds.
• A lack of evidence is provided to suggest that existing arrangements prevent people who use care services and their families from accessing relevant information.
• It is not proportionate and would be disruptive to the sector at a time when many are already operating at capacity (see ‘Capacity issues’ below).
• There could be confusion about what is in or out of scope.
• That there would be many challenges but few opportunities if FOISA were extended, such as that it would make no practical difference.
• That the experience of extending FOISA should not be compared to Registered Social Landlords, given they have been subject to FOISA for several years and have had time to build compliance infrastructure.
• The potential for providers to be significantly impacted if there is vexatious^[2] use of FOIs, or where many FOI requests were of a vexatious nature or limited in value.
• That dealing with FOI requests could negatively impact staff wellbeing, causing worry and strain, for instance, a fear of getting the response wrong.

“We do not agree that imposing freedom of information duties which are designed for public authorities onto a private care home business is appropriate or proportionate.” - The Care Concern Group Limited

General positive views

Positive comments were left across most qualitative questions, notably by several respondents at Q1 and Q13. At Q1, respondents often began their answer by noting that they valued transparency in principle, though often this was followed by expressing opposition to, or concern about, the proposed FOISA extension.

Other positive comments included those who lent their support to the proposals or who believed it was ‘long overdue’. These respondents believed extending FOISA would:

• Increase accountability by helping to improve services or highlight poor performance, such as making it easier to accumulate sector-wide data about the workforce to inform policies and strategies.
• Give added rights and protection to people who use care services and their families, such as enhancing the European Convention on Human Rights (especially Articles 2, 3, 8, 10 and 14).
• Enable the provision of timely and clear information to people, particularly relevant in situations where people would be unable to sustain the pursuit of information due to factors such as time constraints, low literacy, incapacity and language barriers.
• Not be onerous for organisations performing to a high standard.

At Q5 and Q6, it was highlighted that while there were added considerations in extending FOISA to children and young people’s or smaller services, this should not stop such services from being included. Other respondents stated that the benefits of the proposed FOISA extension would outweigh any additional administrative burden, due to, for instance, the limited scope of information typically sought or existing cost limits, exemptions and protections against vexatious requests.

“Regulatory transparency obligations are, of course, an accepted and expected element of public service provision. Designation under FOI provides a route through which bodies can be held to direct account by their service-users, on the specific issues that matter to them. Designation would, therefore, provide a platform for a stronger, more open and more trusted dialogue between service users and providers in some circumstances, while also providing a route through which practice which falls short can be highlighted, scrutinised and addressed in others. Designation therefore provides benefits for both service users and the organisations themselves. Available data suggests that, even following FOI designation, service-users continue to make requests only in circumstances where they need to do so.” - Scottish Information Commissioner

Capacity issues

Concerns about extending FOISA to third sector and private care homes and ‘care at home’ services due to worries about capacity or administrative burden were raised across all qualitative questions, notably at Q1, Q2, Q6, and Q10 by many respondents. Evidence was given by some public bodies of the challenges they faced when responding to FOIs. Where reasons for such concerns were given by respondents, these included that:

• Responding to FOI requests could create a substantial new amount of administrative work, on top of existing regulatory and reporting requirements, creating further layers of bureaucracy. Tasks mentioned included data cleansing, data separation and collation, obtaining legal advice, and data storage.
• Capacity is already stretched, in a context of workforce shortages and resource pressures, and there are insufficient staff available to take on extra functions. Perceived work involved included time for training, implementing the infrastructure needed, gathering and checking the data and responding within the timescales required.
• The burden would be unevenly distributed across the sector and disproportionately affect smaller providers. Smaller providers were generally considered to lack the administrative and compliance staff required and were seen as less able than larger organisations to absorb the extra costs that FOISA work could incur.
• That Subject Access Requests have increased significantly and that a similar trend could occur with FOI requests.
• The additional burden could discourage providers from delivering publicly funded care, deter new providers from entering the sector, and increase the risk of existing providers exiting the market. Respondents expressed the view that this could contribute to market destabilisation, with reduced capacity in the sector, service closures, and fewer care home beds. One respondent raised concerns that carers may be less able to obtain a break from caring should the provision be reduced.

“We recognise, however, that any extension of FOISA would present significant practical challenges. In Scotland, there were approximately 1,000 registered care home services in 2025, the majority of which are operated by non-public-body providers that are small- to medium-sized enterprises, including voluntary sector providers. For smaller providers in particular, the enforcement of FOISA is likely to impose additional administrative burdens and financial costs on a sector that is already under considerable strain.” - Enable

“FOISA requires a significant level of administration and organisation to ensure fulfilment of obligations under the Act. North Ayrshire HSCP received 389 FoI requests in 2025, which is approximately 8 per week. Each response requires administrative organisation to manage the response, time to collate data from across Partnership staff, and senior officer time to provide scrutiny and oversight before publication. Extending the Act to other organisations must therefore take account of this potential for significant resource implications.” - North Ayrshire Health and Social Care Partnership

Diverts from delivering services

The view that extending FOISA could divert care providers from delivering services was raised across most of the qualitative questions. Respondents expressed concern that if implemented without additional support and resourcing, FOISA would place further strain on care providers, leading to negative consequences for frontline service delivery. These views were most notable at Q1, Q2, and Q10 and included considerations such as that:

• FOISA would divert already limited staff time away from frontline care, such as supporting service users and families, and could, for instance, reduce the quality, timeliness, availability and continuity of care, which could impact negatively on a person’s rights to dignity, safety and person-centred care.
• Managerial attention and organisational resources could shift away from care oversight, including operational decision making and quality and safety responsibilities, to focus on responding to FOI requests.
• Frontline delivery in smaller organisations would be impacted disproportionately because they would be less able to absorb new tasks and duties.
• Extending FOISA, and the additional tasks and duties it would create, could weaken provider capacity and sustainability in a sector already experiencing pressures.

“We also note that an additional and under-resourced focus on FOI requests could necessitate the shifting of resources away from frontline or other support and, in so doing, have a harmful effect on supported people’s right to achieve the highest possible standard of physical and mental health.” - Coalition of Care and Support Providers in Scotland

Cost concerns

Respondents expressed concerns about the resourcing implications of a FOISA extension across most questions, most notably at Q1 and Q10, where many respondents expressed this concern, followed by several at Q6 and Q14. Around half of respondents raising cost concerns were care providers.

Respondents typically felt additional funding would be required to facilitate a FOISA extension, as the work involved to comply with FOI requests would increase costs. One organisation had undertaken internal modelling and identified that the annual impact of FOISA compliance would result in a significant amount per year across their homes.

Reasons for concerns about cost included that:

• The resources required to extend FOISA, such as staff time, staff training, setting up systems, managing records, and information governance, could create high additional administrative costs for care providers.
• Complying with FOI requests would require specialist expertise, such as legal advice and data protection, on top of the additional administrative costs.
• Costs would include initial set-up costs of systems and training, as well as ongoing operational costs from handling requests and staffing.
• A high volume of requests would significantly increase costs for service providers.
• Providers would have to absorb the costs themselves or pass them on to the service user or taxpayer, should additional funding not be made available to respond to FOI requests.
• There are questions about whether the associated additional costs would provide good value for money or deliver enough benefit to justify such costs.

“FOISA compliance could create financial pressures. While local authorities may have teams funded through core budgets, independent providers may need to purchase legal advice or develop new systems without any additional funding. This can be burdensome for organisations already facing increased costs from workforce shortages, rising insurance premiums, national policy requirements such as Anne’s Law, and other regulatory responsibilities.” - Social Work Scotland

Other cost-related concerns raised within this theme, which are discussed elsewhere, included that FOISA costs would disproportionately impact smaller and third sector organisations, risk distorting the market, divert resources away from care, require expertise such as legal costs, and risk the long-term sustainability of the sector due to increased risk of service closures.

Not needed as other arrangements exist

Across most qualitative questions, certain respondents believed the proposals were not needed, as other existing arrangements were sufficient in enabling access to information for people and ensuring high-quality provision. These comments were most notable at Q1, where many expressed this view, followed by several respondents at Q2, and some or a few raising it at other questions. Over six in ten of these respondents were care providers. These respondents felt that extending FOISA would create duplication of effort, lead to unproductive work and cause confusion. As a result, it was felt that a FOISA extension would not add value and was unnecessary.

Existing arrangements for obtaining information that were mentioned included:

• Section 31 of the Care Reform (Scotland) Act 2025 provides for a statutory report on the state of the social care market, which could deliver strategic-level transparency.
• Providers already value openness and transparency as part of their organisational culture and public trust.

Examples of arrangements that mean quality is monitored and maintained were raised by respondents, including:

• Third and private sectors are subject to regulatory and contractual scrutiny through the Care Inspectorate, SSSC and commissioning bodies such as Health and Social Care Partnerships. For instance, the Care Inspectorate undertakes inspections of registered care services and investigates complaints about them.
• In addition to the above scrutiny, third sector organisations are monitored by auditors, trustees and funders and their accounts are published by the Scottish Charity Regulator (OSCR), and many by Companies House.
• GDPR and data protection legislation mean that personal and sensitive data is already protected.
• The Duty of Candour, which requires healthcare providers to be open and transparent with patients and their families about any unintended or unexpected incidents that may have caused harm or death.
• Subject access requests can be made to allow people to access information held about them.

Suggested improvements of these arrangements were offered, including:

• Information requests could come through commissioning bodies already subject to FOISA, such as local authorities, and such arrangements could be strengthened, e.g. strengthening proactive publication requirements for information not currently available. A few respondents highlighted that information about care arrangements, funding and eligibility is held by local authorities rather than providers
• Making Care Inspectorate reports more accessible and actionable for people who use care services and their families.
• Funding other organisations such as the Scottish Council for Voluntary Organisations, Social Work Scotland, or Community Care Providers Scotland to provide independent assistance to providers to ensure standards, processes and understanding are in place.

“I think that most people are aware of the information that they can source through the Care Inspectorate etc. It is difficult to answer such a general question, as an unpaid carer who does have extensive knowledge of the current FOISA legislation, I struggle to think of anything I would request from my son's care provider under FOISA that is not already available to me and would be of any interest.” - Individual

“In practice, this is unlikely to improve individuals’ rights, as they can already obtain information on public spending from public bodies directly under the existing rules.” - Crosslaw Care Home

Expertise or specialist resource needed

Some respondents at Q1, Q2, and Q6 suggested that care providers would require expertise or specialist resources in order to provide FOI responses. The types of expertise or facilities that these respondents felt would be needed included: technical expertise, dedicated compliance, information governance, or legal staff or teams; and dedicated information systems. Knowing how to retrieve and store information were highlighted as issues. It was felt that organisations would be required to upskill and train staff to fulfil FOI requests, or to outsource legal elements, and that the work involved managing FOI processes would be disproportionate to the size of providers.

“A particular challenge for such staff will be to identify which legal regime is in play, affecting what data, involving what rights (and by whom exercisable), what obligations and what prohibitions, as these will unfortunately often be unclear from requests received.” – Mearns View Care Home

More detail is needed

The need for more detail was highlighted across half of the consultation questions, notably by some respondents at Q10. Some of the issues raised have been mentioned elsewhere, such as how public funding or ‘care at home’ services would be defined and therefore what information was in scope (see chapter 3), and the likely volume and nature of FOI requests. Other topics where respondents sought more detail included:

• The rationale for the proposed FOISA extension, and how it could lead to greater transparency.
• How it would be implemented, including what resources would be allocated to it.
• Whether mandatory guidance would be rolled out.
• Whether the Care Inspectorate would require information on requests received or training to ensure effective FOISA compliance, for instance, as part of annual returns or the inspection quality framework.