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

3. Extension of FOISA to private and third sector run care homes and ‘care at home’ services

This chapter covers whether respondents agreed that FOISA should be extended to private and third sector providers of care homes and ‘care at home’ services and presents the analysis of questions that sought views on whether the FOISA extension should cover publicly funded elements, or the services more broadly. In addition, the chapter presents respondents' views on whether FOISA should extend to care homes and ‘care at home’ services for children and young people, and, if so, whether any special considerations would apply. Similarly, stakeholder views in relation to the position of smaller providers were sought.

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

The consultation document sets out the definition of care homes and ‘care at home’ services, in terms of the accepted definitions used for the purposes of registration with the Care Inspectorate. Care homes provide accommodation with care to meet a person's needs, which may include nursing or personal care or support, and ‘care at home’ services provide personal care or support to a person in that person’s home. ‘Care at home’ services are regulated by the Care Inspectorate as a ‘sub type’ of ‘support services’. Respondents were asked for their views on whether FOISA should be extended to these types of services.

The Care Inspectorate has specific duties to carry out yearly, unannounced inspections of both types of service, in addition to secure accommodation services. Providers of secure accommodation have been subject to FOI law since 2016.

Q1. Do you agree that FOISA should be extended, where possible, to private and third sector (charity and not-for-profit organisation) run care homes?

Respondent type	n=	% Yes	% No	% No view	% No answer
All respondents	136	48	41	4	7
All answering	126	52	44	4	-
Individuals	66	65	33	2	-
Organisations:	60	37	57	7	-
- Care provider	36	19	75	6	-
- Membership/representative body	7	57	29	14	-
- Public sector bodies (health and social care partnerships, local government, procurement)	6	33	50	17	-
- Support/Advice	6	83	17	0	-
- Campaigning/Think Tanks	4	75	25	0	-
- Legal/advocacy	1	100	0	0	-

Among those answering Q1, just over half (52%) agreed that FOISA should be extended, where possible, to private and third sector (charity and not-for-profit organisation) run care homes, while 44% disagreed and 4% had no view. Support was higher among individuals who answered (65% agree compared to 33% disagree). A majority of organisations that answered disagreed (57% compared to 37% agree), though views varied by type of organisation. Three quarters (75%) of care providers and half (50%) of public sector bodies disagreed. However, a majority of each other type of organisation agreed.

Almost six in ten of all respondents left an open comment at Q1. The most prevalent themes, raised by many respondents, were that an extension was not needed as other options existed, capacity issues, and concerns regarding cost. Next most prevalent were general positive comments, followed by views that extending FOISA to care homes would divert resources from delivering services, both mentioned by several respondents. These views were incorporated in the themes written up in Chapter 2. Additional themes specific to the question are covered below.

Yes, there should be greater transparency

Several respondents felt extending FOISA to private and third sector run care homes would enhance transparency. These respondents were mostly individuals and organisations other than care providers. Reasons given included that it would:

• Be an important safeguard for people who use care services, their families and the wider public, and support quality assurance.
• Provide easier access to information to help people make informed decisions, raise concerns, understand how funds are being used and to advocate for family members or self-advocate.
• Enhance accountability.
• Enable lawful scrutiny of commissioning, staffing and service standards.
• Deter misuse of public funds or inappropriate practices being hidden.
• Better reflect the public nature of such services.

In addition, enhancing transparency was seen as aligned with other relevant approaches, such as providing accessible information in social care decision-making and current care reforms.

“As a point of principle, we agree that members of the general public ought to be able to access information about care homes, regardless of who runs them. This is especially so given the critically important role that care homes provide within the wider health and care sector in Scotland and, not least, the safeguarding aspects of their work, open and transparent knowledge about which would be in the public interest.” - Charity Law Association

Yes, such care homes provide a public service

Where these services provided a public function, it was felt they should be subject to FOISA, according to some respondents, none of whom were care providers. This was seen as a way of creating a level playing field, where all providers were equally subject to FOISA. Reasons for holding this view included that: if these providers were not delivering the service, then the public sector would be doing so; these services are a replacement for hospital-based care; they received public funding; and they operate within a statutory framework of regulation, inspection, safeguarding and commissioning. One membership / representative body disagreed with the use of the term ‘where possible’ in the consultation document, believing it was possible to extend FOISA to these care homes.

Yes, these services support vulnerable people

The need to extend FOISA because these services support vulnerable people was highlighted by some respondents. Views included that care home residents often lack the capacity to advocate for themselves or ask questions that may be raised in FOI requests. Respondents noted that the COVID inquiry confirmed the importance of the care sector in protecting, respecting and fulfilling people’s human rights and that care homes often supported Scotland’s most vulnerable individuals.

No, potential for sensitive information to be released

Some respondents, more than half of whom were care providers, felt that information may be too sensitive to release via FOIs. Perceived risks included inadvertent over-disclosure and potential harm to residents, GDPR breaches, or release of sensitive business data that could harm competitiveness.

“Risk of data breach: the release of data under FOISA poses risks that personal / identifiable / sensitive data is released in error. Public bodies have multiple layers of scrutiny to mitigate against any data breaches; it is unlikely that this will be the same for voluntary and third-party organisations. Implementing FOIA-level obligations could risk inadvertent disclosure of commercially sensitive information, which private providers must protect. Handling and accurate reporting of local government data and information could be at risk should such organisations receive FOIs that could contain data owned by contract holders.” - North Ayrshire Health and Social Care Partnership

Yes, families need assurance

Extending FOISA to these services was seen by some respondents, mostly individuals, as a way of providing greater assurances to families. It was felt that more checks on care homes were needed, that families should be able to ask questions about service provision and get adequate answers in a reasonable timescale, that it would build trust in services, and that it would allow families to make informed decisions.

Yes, access to information should be a right

Some respondents mentioned that the ability to make a FOI request to these services should be a right. The right to expect information to be accessible, to make requests for information, and to have the same FOI rights for these services as for publicly provided care homes was highlighted. The Scottish Information Commissioner felt the proposal would go some way towards helping the Scottish Government achieve its Equality and Human Rights Mainstreaming Strategy, where it noted the role of transparency and accountability in supporting human rights and addressing inequality is clearly recognised.

“FOISA extension would provide a structured, enforceable right of access with clear timescales and recourse to the Scottish Information Commissioner — none of which currently exists.” - Individual

Yes, for other reasons

A range of other reasons were given to advocate for extending FOISA to these care homes by some respondents. These included that it would support professional practice, promote fairness, improve care quality and help ensure legislative compliance.

“Supporting Professional Practice: Social workers have statutory duties to assess needs, arrange care, and monitor wellbeing. Access to information about provider practices, policies, and performance can support effective professional oversight and person-centred practice.” - Scottish Association for Social Work

Other issues

A few respondents expressed the view that FOISA should be extended, as they felt that concerns about doing so were overstated or should be considered secondary to the right to information.

Q2. 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?

Respondent type	n=	% Yes	% No	% No view	% No answer
All respondents	136	47	44	4	5
All answering	129	50	47	4	-
Individuals	66	64	35	2	-
Organisations:	63	35	59	6	-
- Care provider	37	19	76	5	-
- Membership/representative body	8	50	38	13	-
- Public sector bodies (health and social care partnerships, local government, procurement)	6	33	50	17	-
- Support/Advice	7	71	29	0	-
- Campaigning/Think Tanks	4	75	25	0	-
- Legal/advocacy	1	100	0	0	-

Those answering Q2 recorded similar views to Q1. Overall, half (50%) agreed that FOISA should be extended, where possible, to private and third sector (charity and not-for-profit organisation) run ‘care at home’ services, while 47% disagreed and 4% had no view. Support was higher among individuals who answered (64% agree compared to 35% disagree). Three fifths (59%) of organisations that answered disagreed, but views again varied by type of organisation. Three quarters (76%) of care providers and half (50%) of public sector bodies disagreed, with at least half of all other organisation types agreeing.

Over half of all respondents left an open comment at Q2. The most prevalent themes were capacity issues, that the same considerations as for care homes would apply and that an extension was not needed as other approaches should be sufficient. Views on the first and last of these are incorporated in the themes written up in Chapter 2.

For similar reasons as care homes

Many respondents, two thirds of whom were against a FOISA extension and a third in favour, left a comment to indicate they felt that similar considerations in relation to extension of FOISA to care homes would apply to ‘care at home’ services also. As before, reasons against extending FOISA to such ‘care at home’ services included capacity issues or that it would divert funds from frontline care, for instance. Reasons in favour included that ‘care at home’ services included public functions, that FOI requests could help ensure people’s rights, and that ‘care at home’ services should be transparent.

These respondents noted the similarity with care home services, such as:

• Barriers for families when seeking information.
• Reliance on informal relationships or goodwill rather than clear statutory paths.
• They are both care services, so were similar in nature
• Similar types of information that might be sought through an FOI request.
• Services being funded wholly or partly through public budgets or replacing public sector provision.

As at Q1, the potential for FOIs to result in data breaches, due to failing to adequately protect anonymity or releasing sensitive business data, was also highlighted by some respondents. A few respondents, mainly individuals, similarly felt extending FOISA would help provide assurance for families. For instance, it was felt FOIs could help people understand if a ‘care at home’ service is equipped to meet needs in a person-centred way, such as visiting at appropriate times or spending enough time with people. One highlighted difficulties discharging his formal duties as a Guardian:

“As Guardian, I have a statutory obligation under the Adults with Incapacity (Scotland) Act 2000 to ensure that any intervention in my son's affairs benefits him, takes account of his wishes, and is the least restrictive option available. To do that, I need to understand how the provider operates — what its policies say, how it handles concerns, what standards it holds its staff to. These are not unreasonable things to ask. They are basic to my role. Over the past year, I have found it extremely difficult to obtain this kind of information. I made a written request to the provider for copies of its policies covering specific areas of my son's care. It took many months to receive any response, and when it came, it did not cover everything I had asked for. No explanation was given for what was missing. I had no formal means of compelling a response. The experience has made me realise that Guardians and families in Scotland are expected to oversee the quality of care being provided to their loved ones but are given almost no practical means of doing so.” - Individual

Other issues

One membership / representative body felt that, in addition to the same principles applying as for care homes, additional considerations for ‘care at home’ services would involve service boundaries (see below), defining what constitutes public funding, proportionality, and integration with existing rights. Another respondent felt people in ‘care at home’ services may experience greater vulnerability compared to care home services, due to the one-to-one, personal nature of ‘care at home’, i.e. entering a person’s dwelling in the community.

Service boundary issues

Difficulties for services in disaggregating ‘care at home’ parts of the service from other services, such as housing support and community-based services, were highlighted by some respondents. These respondents felt it would be hard to separate the staffing element, that operational boundaries may be blurred, and that integrated models of delivery may be in place involving shared contractual arrangements. Concerns were raised about how disaggregation could occur and the cost and complexity involved.

“These services are often delivered through integrated models, including housing support and community-based services, making it extremely difficult to disaggregate information relevant to FOI requests. Providers have highlighted the complexity of separating data streams and the risk of non-compliance due to confusion over what information is in scope.” - Scottish Care

Other views

Several respondents commented that the proposal could divert resources from care delivery, and some raised concerns over the costs of providing FOIs, felt expertise would be needed or gave suggestions for approaches they felt should be adopted. All these issues are incorporated in the themes written up in Chapter 2.

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

This section addresses whether respondents feel information about all aspects of care home and ‘care at home’ services in the private and third sectors should be included in a FOISA extension, or whether it should be only for those areas which are mainly publicly funded. The consultation document sets out funding arrangements for these types of services, highlighting that there is substantial public funding for them. Readers are advised to refer to the consultation document for further details on funding arrangements, though it is worth noting that a contribution towards ‘free personal care’ and ‘free nursing care’ is normally available for people in care homes, including those who mainly fund their own care, and ‘free personal care’ for those who receive ‘care at home’ services.

Q3. 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.

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

Respondent type	n=	% a)	% b)	% No view	% No answer
All respondents	136	46	32	9	13
All answering	118	53	36	10	-
Individuals	64	67	28	5	-
Organisations:	54	37	46	17	-
- Care provider	34	18	59	24	-
- Membership/representative body	4	100	0	0	-
- Public sector bodies (health and social care partnerships, local government, procurement)	5	60	20	20	-
- Support/Advice	6	33	67	0	-
- Campaigning/Think Tanks	4	100	0	0	-
- Legal/advocacy	1	100	0	0	-

Among those answering Q3, just over half (53%) indicated that information about all services should become subject to FOI law, one third (36%) indicated that only information about services that are mainly publicly funded should become subject to FOI law, and one in ten (10%) had no view.

Two thirds (67%) of individuals felt information about all services should be in scope, compared to one third (37%) of organisations, with 46% of the organisations preferring only information about services that are mainly publicly funded to be in scope. Once again, views varied by type of organisation. Two thirds (67%) of Support/Advice organisations and 59% of care providers that answered felt that only information about services that are mainly publicly funded should be subject to FOI law. Conversely, 60% of public sector bodies and all other organisations that answered felt that information about all services should become subject to FOI law.

Under half of all respondents left an open comment at Q3. While the open element of Q3 was directed at those who chose option b), only around two thirds of those who left a comment had in fact selected option ‘b’. The most prevalent themes were negative views, that providers should be subject to FOISA based on public funding or statutory duties, and that the proposal was not needed as existing mechanisms are sufficient (see chapter 2 for this latter theme).

Negative views

Many respondents, over half of whom were care providers, left comments indicating concerns. Two thirds of these expressed their disagreement with the FOISA extension generally (see chapter 2), highlighting that there was no option in Q3b to indicate this view.

However, some other respondents expressed concerns with option ‘b’ specifically. The most common view was that option ‘b’ would introduce further complexity, and it would be difficult to fully separate private from public funding. This could be because mixed funding arrangements change over time and vary between individuals, or because some elements, such as personal care, may be publicly funded, while other elements may not be. A few care providers also highlighted that systems, e.g. IT and recording systems, have not been designed to separate ‘public’ data.

Other views included that:

• Extending coverage to only certain funding models would create inequalities in access to information.
• Interpretation and application in practice may vary, leading to inconsistencies.
• The question indicated a decision to proceed had already been made, which respondents opposed.

“The distinction between 'mainly publicly funded' and privately funded care is unclear and unworkable in practice. Mixed funding arrangements change over time and vary between individuals, making consistent application extremely difficult.” - Independent Care Home (third sector)

Base it on public statutory duties or public funding

FOISA should apply to provisions related to public statutory duties or public-funded elements only, according to several respondents. These respondents gave varying views on what elements should be funded, such as:

• Public funding only, including local authority-funded placements, free personal care payments, free nursing care payments, commissioned services, services to meet local authority duties or delivered in hospital discharge pathways.
• Exclude privately funded services, self-funders, charitable donations and unrestricted fundraising.
• Services delivered at service or provider level, rather than on a resident-by-resident basis, for instance, information relating to governance, policies and compliance.
• Packages where the local authority has assessed need and has a statutory duty to fund care and support.

“Where a care provider delivers services that a local authority would otherwise be required to deliver itself — and does so within a publicly funded and regulated framework — that activity should be treated as a function of a public nature.” – Individual

Where public income reaches a certain threshold

Some respondents felt FOISA should be extended to services where public funding reached a certain proportion of service’s overall income. The main reason for this suggestion was that if public funding represented a majority of a service’s income, it should be treated as a publicly provided service. Proportions suggested included over 50%, 75% and 90%. It was felt that any threshold adopted needed to be clear, transparent and proportionate.

“Clear guidance would be required on what constitutes “mainly publicly funded.” For example, this could be defined by a percentage threshold of total service income derived from public contracts, or by applying FOISA only to information relating to publicly commissioned care packages.” – Clinical 24

Only local authority-funded clients

Brief views were left by a few respondents, mostly individuals, expressing the view that a FOISA extension should only include local authority-funded clients. One of these respondents felt it should exclude free personal or care allowances.

Other views

Some felt FOISA should be extended to all provisions, a view aligned to option ‘a’, notably to create parity across sectors.

Services provided to children and young people

Care homes and ‘care at home’ services are provided to some children and young people in order to address a particular vulnerability or need. As the consultation document notes, many of these are small in size, with an average number of registered places per service being 4.5. The Scottish Government recognises this may pose particular challenges, and that additional considerations may be relevant when extending FOISA to services that support children and young people. This section presents respondents' views on whether FOISA should be extended to these services for children and young people, and if this were to happen, what specific considerations would need to be taken into account.

Q4. 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)?

Respondent type	n=	% Yes	% No	% No view	% No answer
All respondents	136	51	24	18	6
All answering	128	55	26	20	-
Individuals	67	69	24	7	-
Organisations:	61	39	28	33	-
- Care provider	36	25	33	42	-
- Membership/representative body	7	71	14	14	-
- Public sector bodies (health and social care partnerships, local government, procurement)	6	50	33	17	-
- Support/Advice	7	43	14	43	-
- Campaigning/Think Tanks	4	75	25	0	-
- Legal/advocacy	1	100	0	0	-

Among those answering Q4, just over half (55%) agreed that an extension should apply to services delivered to children and young people, while one quarter (26%) disagreed and one fifth (20%) had no view. Among individuals who answered, seven in ten (69%) agreed that such services should be included, while one quarter (24%) disagreed.

Mixed views were evident among organisations that answered. Overall, 39% agreed, 28% disagreed, and 33% had no view. Among care providers, 42% had no view on this question, while 33% disagreed and 25% agreed. Similarly, 43% of Support/Advice organisations had no view, while 43% agreed and 14% disagreed. Half (50%) of public sector bodies agreed, as did at least seven out of ten of other types of organisations.

Q5. Are there any issues, opportunities or challenges specific to children and young people’s services which require to be considered?

Just under half of all respondents commented on Q5. The most prevalent themes were concerns about privacy or anonymity, that similar considerations as for adult services would apply, and comments on the size of services for children and young people.

Privacy or anonymity concerns

Several respondents identified difficulties ensuring privacy or anonymity as a result of providing information in FOI responses, in relation to children and young people’s services. Views were similar to those considered in Q1 and the impact assessment questions (covered in Q13), though there was also a view expressed that concerns over privacy or anonymity concerns should not prevent extending FOISA to these services. However, concerns specific to this sector included:

• The nature of data processed in children and young people’s services was highlighted by some respondents as an issue that needed to be considered, notably that such data was often sensitive or special category. Along with the risks of disclosure, issues of data ownership and interpretation were highlighted.
• The very small size of many services could make it more likely that disclosed information would lead to identification of those using the service (see ‘Service-related considerations’ below)
• That issues such as data sharing, handling sensitive personal data and safeguarding factors are more acute in children’s services and therefore more difficult to mitigate in practice compared to services for adults. For instance, it was noted that compliance with FOISA could conflict with safeguarding responsibilities and children’s rights or damage confidential, trust-based relationships with professionals.

‘We consider that the application of FOISA to children and young people’s services require a heightened and precautionary approach. Children and young people are entitled to enhanced protections in relation to their privacy, dignity, and wellbeing. Services supporting them frequently involve small cohorts, highly personalised care arrangements, and detailed case-level information. In this context, there is a significant risk that information disclosed under FOISA, even where anonymised or aggregated, could lead directly or indirectly to the identification of individual children or young people. The risk of inadvertent over-disclosure is particularly acute given the nature of information held by providers of children and young people’s services, which may include safeguarding concerns, behavioural information, health-related data, family circumstances, and professional assessments. Disclosure of such information could undermine safeguarding arrangements, conflict with duties owed to children under data protection legislation and adversely affect children’s rights to privacy and protection from harm.” - Enable

Similar considerations as for adult services

A comparison with the proposed FOISA extension for adult services was made by some respondents, notably the vulnerability of children and young people, the similar nature of service provision and the need to avoid identifying individuals. The need for parity across services was highlighted, and two respondents noted the need for consistency during the transition into adulthood.

“The quality of care provided to service users should clearly and fundamentally be at the heart of all activity, and service users and those that support them should have a right to query, scrutinise and hold organisations to account in circumstances where concerns arise. Excluding such services from any order would simply create fresh inequalities in access to information, creating a situation where some key services provided to vulnerable members of society are not subject to scrutiny through FOI, while similar services provided to people at a later stage of life are. Such a position would be irrational, inequitable and unsustainable.” – Scottish Information Commissioner

Service-related considerations

A number of considerations relating to the nature of services for children and young people were highlighted by some providers. The main issue raised related to the small size of many such services, as noted in the consultation document. It was felt that extending FOISA could lead to a disproportionate administrative burden or providers having insufficient resources to be able to provide a response, and the risk of indirect identification even where information is anonymised was also commonly highlighted.

Suggestions to mitigate this included only applying a FOISA extension to larger children’s services or group care settings, providing practical examples in sector-specific guidance for small-scale and complex community-based packages, and ensuring robust safeguards.

“It is established practice to not provide data relating to fewer than five people, to prevent the potential identification of any individual. The average number of registered places per children and young people’s services is 4.5, as set out in the consultation paper. This could mean that a significant number of children and young people’s services would be de facto exempt from FOISA requests related to the people they support, raising questions about the purpose of this proposed change.” - Coalition of Care and Support Providers in Scotland

Two respondents highlighted that FOISA should be linked to services, rather than the type of people using services.

Protection and safeguarding considerations

Some respondents mentioned the importance of ensuring sufficient child protection and safeguarding measures were in place in such services. Views relating to FOI requests included the need to redact information relating to safeguarding and child protection or that disclosure may create safeguarding concerns if a child was identified. A few mentioned children’s rights in relation to protection, for instance, that the United Nations Convention on the Rights of the Child (UNCRC) required recognition of safeguards or that children’s rights to protection should be acknowledged and protected (more on rights is presented below). One individual suggested that the requested information could be provided to an independent third party if there were client safety or vulnerability concerns.

Improved accountability and transparency

An opportunity of extending FOISA to children and young people’s services was that it would enhance accountability and transparency according to some respondents. Views included that this could increase public confidence in how services operate, reinforce good practice, and help hold services to account.

Rights and participation

Some respondents, all of which were organisations, highlighted the rights of children and young people, including their right to participate. It was felt these rights should be protected, such as ensuring a two-tier system of rights between children and adults did not exist and enabling individuals, and their parents/carers where appropriate, to make FOI requests. UNCRC Article 13 (1) was highlighted by the Scottish Information Commissioner. This Article includes the right to seek, receive and impart information and ideas of all kinds, orally, in writing or in print, in the form of art or through any other media of the child’s choice. Two respondents highlighted the need to pay attention to consent considerations, with one of these calling for guidance to help providers understand “who is entitled to access information … and to ensure rights are upheld without creating unnecessary barriers”.

“Children and young people will need support to be able to exercise their rights, due to their age and capacity to understand their rights. Most individuals are adults before they have any knowledge or understanding of what records are held on them and how to access the information in them. The ARA recommends that age-appropriate education on their rights be provided to children and young people by those who look after them. This should include meaningful life story work and age-appropriate access to explain decisions made on their care. When leaving care contexts young people should be given full accounts of their rights to access their information under data protection.” - Archives and Records Association (UK & Ireland)

Consider parents / carers / guardians

Considering the rights of parents, carers and guardians was raised by some respondents. This included enabling such groups to make an FOI request on behalf of their child, considering the complexity of parental rights and recognising that parents may require time before they wish to access records and information, such as in cases where a child has a life-limiting condition.

Other issues

The Archives and Records Association (UK & Ireland) (ARA) recommended that Part 2 of the Section 61 Code of Practice on Records Management under FOISA be extended to private and third sector organisations. This requires authorities to transfer records of care experienced people to public archives and was felt important as care experienced people often require access to information that supports their sense of identity. It was recommended that:

“…the s.61 code of practice be revised to ensure that all records subject to FOISA are appraised for their potential enduring value and deposited in a public archive. The information that could support care-leavers is not always recorded. The ARA recommends that guidance should be provided on the types of records that would help children and young people as they grow up and want more information about their time in care.” - ARA

Position of smaller providers

The consultation document sets out factors to consider in relation to the size of providers, with potential challenges outlined regarding FOI requests to small providers. It also describes the benefits of including smaller providers in a FOISA extension. Many of these issues are reflected in respondents’ comments when considering whether size should have a bearing on which providers to include in a FOISA extension.

Q6. 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?

Respondent type	n=	% Yes	% No	% No view	% No answer
All respondents	136	22	69	2	7
All answering	127	24	74	2	-
Individuals	67	25	73	1	-
Organisations:	60	22	75	3	-
- Care provider	36	28	69	3	-
- Membership/representative body	6	17	83	0	-
- Public sector bodies (health and social care partnerships, local government, procurement)	6	0	83	17	-
- Support/Advice	7	29	71	0	-
- Campaigning/Think Tanks	4	0	100	0	-
- Legal/advocacy	1	0	100	0	-

There was a clear consensus among those answering Q6 that the size of a private or third sector care home or ‘care at home’ service provider should not have any bearing in whether that provider is made subject to FOISA. Three quarters (74%) of those answering felt this was the case, while one quarter (24%) felt it should have a bearing, and 2% had no view. Similar views were recorded by both individuals and organisations, with 73% and 75%, respectively, indicating that the size of a service provider should not be a factor. A majority of all types of organisations also felt it should have no bearing, ranging from 69% of care providers to all campaigning/think tank organisations and legal/advocacy organisations.

Q6a. 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.

Though Q6a was aimed at those who answered ‘yes’ to Q6 (n=30 respondents), Citizen Space allows all respondents to answer any question. Q6a was answered by 31 respondents, of whom 27 answered ‘yes’ and four answered ‘no’ at Q6. Data has not been edited to remove these discrepancies

Nevertheless, it should be noted that since only a minority believed provider size should be relevant, the findings from Q6a should be understood to reflect the views of a relatively small subset of respondents.

Respondent type	n=	% a)	% b)	% c)	% d)	% No answer
All respondents	136	4	2	4	13	77
All answering	31	19	10	16	55	-
Individuals	18	22	0	17	61	-
Organisations:	13	15	23	15	46	-
- Care provider	11	9	27	18	45	-
- Membership/representative body	0	-	-	-	-	-
- Public sector bodies (health and social care partnerships, local government, procurement)	0	-	-	-	-	-
- Support/Advice	2	50	0	0	50	-
- Campaigning/Think Tanks	0	-	-	-	-	-
- Legal/advocacy	0	-	-	-	-	-

Among those answering Q6a, a range of perspectives was evident. While there was a preference for option d) (Only the largest providers, offering services to over 1000 people should be made subject to FOISA), which was selected by over half (55%), a small number of respondents each preferred the other options a) to c).

Most of those answering Q6a were individuals or care providers. Both groups expressed a preference for option d), with 61% of individuals and 45% of care providers who answered selecting this option. While the remaining individuals were more likely to prefer option a) (Only the very smallest providers, offering services to up to 10 people, should be exempt from FOISA), the second most favoured option among care providers was option b) (Providers offering services to up to 50 people should be exempt from FOISA).

Of the four respondents who answered ‘no’ at Q6, two individuals selected option d), while one organisation selected a) and another b).

Q6b. 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.

As with Q6a, Q6b was also aimed at those who answered ‘yes’ to Q6 (n=30 respondents). However, as Citizen Space allows all respondents to answer any question, Q6b was answered by 29 respondents, of whom 26 answered ‘yes’ and three answered ‘no’ at Q6. Data has not been edited to remove these discrepancies. Nevertheless, it should be noted that since only a minority believed provider size should be relevant, the findings from Q6b should be understood to reflect the views of a relatively small subset of respondents.

Respondent type	n=	% a)	% b)	% c)	% d)	% e)	% No answer
All respondents	136	2	4	1	2	13	79
All answering	29	10	17	3	59	10	-
Individuals	18	6	22	0	67	6	-
Organisations:	11	18	9	9	45	18	-
- Care provider	10	20	10	10	40	20	-
- Membership/representative body	0	-	-	-	-	-	-
- Public sector bodies (health and social care partnerships, local government, procurement)	0	-	-	-	-	-	-
- Support/Advice	1	0	0	0	100	0	-
- Campaigning/Think Tanks	0	-	-	-	-	-	-
- Legal/advocacy	0	-	-	-	-	-	-

Among those answering Q6b, there was a preference for option d) (Providers with a staff headcount of up to 100 should be exempt from FOISA), which was selected by three fifths (59%). This was followed by 17% who preferred option b) (Providers with a staff headcount of up to 25 should be exempt from FOISA), and one in ten (10%) who preferred either option a) (Only the very smallest providers, with a staff headcount of up to 10, should be exempt from FOISA) or option e) (Only the largest providers, with a staff headcount of over 1000 should be subject to FOISA).

Most of those answering Q6b were individuals or care providers. Both groups expressed a preference for option d), with 67% of individuals and 45% of care providers who answered selecting this option. While the remaining individuals were more likely to prefer option b), the remaining organisations were more likely to favour options a) and e) (20% each).

Of the three respondents who answered ‘no’ at Q6, one individual and one organisation selected option e) and one organisation selected option a).

Q6c. Do you have any other comments on the challenges or opportunities that might come from extending FOISA to smaller providers?

Almost two thirds of all respondents left an open comment at Q6c. The most prevalent themes were: that size should not be a factor in determining whether to apply a FOISA extension, that it would be too resource-intensive for small services, and concerns regarding cost. The latter two issues are addressed in Chapter 2.

Size should not be a factor

Many respondents felt the size of services should not be a reason for exempting them from a FOISA extension. A range of reasons were given for this, including:

• Size was not relevant; it was more important to achieve parity across services and equality in access to information.
• Small services may be part of a larger provider, so it would be difficult to determine which should be exempt.
• Previous extensions did not differentiate based on size.
• Small services deliver the same regulated functions as larger ones, and those services should expect scrutiny.
• Those who use these services may not have a choice over who provides the service or its size.
• It may be difficult to determine the size of a service as staff numbers and supported people can change regularly.
• Exemptions based on size may also constrain growth, staff may be paid off, or services split into smaller units to remain below exemption thresholds, which could weaken oversight and public confidence.
• Small services may be more likely to need greater transparency due to the potential to have less established governance structures, formal complaints processes or robust record-keeping processes.

“Individuals receiving care (and their families) should be entitled to a consistent level of transparency and accountability, regardless of whether services are delivered by a small, medium or large organisation. Introducing size thresholds creates inconsistency and confusion, both for the public and for providers.” - Trust Housing Association

Suggested alternatives to size-based exemptions were given by some respondents, such as allowing longer lead-in or response times, embedded flexibility around response timescales where appropriate, access to shared resources and infrastructure, tailored protections and co-produced, practical guidance. One respondent noted that within the Registered Social Landlord sector, some providers had contracted a third party to deliver the FOISA function, which had worked well, especially given that the smaller RSLs get so few FOI requests.

Comments on vexatious FOIs

The potential for vexatious FOIs to be made was highlighted by some respondents, half of whom were care providers. These were considered to result in a burden for small services, for instance, that they would not have the resources, confidence or legal knowledge of larger providers to deal with them effectively. However, one respondent noted FOISA already contained exemptions relating to vexatious or excessive requests and such mechanisms could provide a more effective and flexible way of managing requests.

Small services are unlikely to get many FOI requests

A few respondents noted that smaller organisations operating would be unlikely to get many FOI requests. One support / advice organisation noted this would be particularly the case for services of a high quality, whereby a high number of requests could be indicative of not meeting an appropriate standard.