22 September 2021
- Theme of discussion: regulation
- Time: 114:00-16:00
- Discussions leader(s): Iain MacAllister
This is a summary of the key points raised by attendees at this session. None of the points have been attributed to individuals as the purpose was to encourage broad and open discussion. The summaries for all the national events will be provided to the independent contractor undertaking the consultation analysis.
Points raised at event
National regulators will continue to play an important role in ensuring consistent and high standards of social care and support.
We propose that once established the NCS will be responsible for:
- setting national care standards, to provide a framework for regulation and support better outcomes for people.
We also propose the following changes to the powers available to regulators:
- reforming enforcement powers to meet the changing social care landscape as more people are being supported to live at home and those who live in care homes have increasingly complex needs.
- giving the regulator market oversight powers of the care market to ensure it meets the needs of users of care services and care workers, particularly around contingency planning on service closure and other market failures
- enhancing the powers of the Scottish Social Services Council (SSSC) to regulate health care assistants, day care of adult services staff, and personal assistants. And to compel employers to ensure adherence to the code of practice, to ensure staff can access the qualifications they need, and to require employer information on fitness to practice investigations.
Core principles for regulation and scrutiny
The core principles for regulation and scrutiny are key to ensuring consistent and high standards of care and support.
Q1 Is there anything you would add to these core principles?
- Need for clarity that all principles of human rights should apply in all settings e.g. on an individual service user and on a service provider level.
- Currently accountability is missing in the care sector at a local level.
- Protections against discriminations must include service users with Mental Health issues / ailments
- Equity is as important as equality.
- Whilst Human Rights are included, Health and Safety and securing Justice should be included as part of scrutiny and assurance.
- There must be clear governance in place.
- We should also include reporting of Adverse Events and consideration given to how we react or over-react to them.
Q2 Are there any principles you would remove?
- None reported
Q3 Are there any other changes you would make to these principles?
- The focus needs to come from service users and be informed as to their needs.
Strengthening regulation and scrutiny of care services
We are considering reforming the enforcement powers to ensure high standards are upheld.
- Condition notices under section 66 of the 2010 Act (this process is too slow). The test could be made less stringent, or an "intermediate" category could be added.
- Improvement notices under section 62 of the 2010 Act (this process is too weak). Changes to require sustained improvement would strengthen this provision.
- Cancellation of a service under section 64 of the 2010 Act (this process is too slow). The statutory process is fair and reasonable and allows the opportunity for representations by services affected, but appeals in the Sheriff court are likely to be protracted. One possible solution is to review court processes to govern the conduct of proceedings, as is the case with other types of court actions.
- Emergency cancellation of a service under section 65 of the 2010 Act (the legal bar is too high) The Sheriff considering an application for cancellation of registration under this provision has a wide discretion. They may (and therefore may not) make the order, even if satisfied that there will be serious risk unless the order is made. We would also highlight that in a number of cases there may be issues relating to the length of the process in which applications for emergency cancellations are heard by the court.
Q4 Do you agree with the proposals for additional powers for the regulator in respect of condition notices, improvement notices and cancellation of social care services?
- No feedback received
Q5 Are there any additional enforcement powers that the regulator requires to effectively enforce standards in social care?
- There should be enforced provision of services where not offered.
- Consideration should be made of the financial resources needed to support services, especially where changes are needed.
- There is the potential for regulations to be needed on financial costs where personal finances of service users are not accessed e.g. Independent Living Fund and where these funds are not distributed in the manner intended.
Name of event: Regulation
Date and time of event: 22/09/21 (14.00—16.00, 2nd half)
Market oversight function
Q78. Do you agree that the regulator should develop a market oversight function?
- Is "market" the correct term for care?
- Shaping markets is essentially political.
- By definition, market oversight entails oversight of the entire market and thus all in it. Intervention, on the other hand, should be proportionate.
- OFGEM deals with private companies and are trying to shape this, is this what you are proposing to do?
- Recognise there are significant challenges – need to adapt to different markets
- Need a sense of what’s happening in the market – looking at scenarios to see if we can pre-empt failures – not afterwards
Q79. Should a market oversight function apply only to large providers of care, or to all?
- Is "market oversight" the same as contingency plans ?
- Could be effective without information supply from providers. Again balance and proportion. Financial details would be important as would significant support and protection issues as just two examples.
- Need to provide a proportionate balance mindful of the scale and ability to respond to market oversight. Could be resource intensive.
- It should be proportionate and fair.
Q80. Should social care service providers have a legal duty to provide certain information to the regulator to support the market oversight function?
- Companies House and OSCR allow access to some financial info but a) it’s out of date by 9 months by time it’s filed and b) is minimal for small providers.
Q81. If the regulator were to have a market oversight function, should it have formal enforcement powers associated with this?
- Financial information to inform market oversight or other info which may able to foresee this.
- Would it be possible to have people risk assessed and scored so they can only participate at a certain level? Something along those lines in a regulatory way – same as when you are bidding for something.
Enhanced Powers for regulating Care Workers and Professional Standards
Q82. Should the regulator be empowered to inspect providers of social care as a whole, as well as specific social care services?
- I think examples may help with this
- A regulator cannot regulate if it cannot enforce. The questions is: what should it enforce?
- Don’t know - If it’s for NCS with commissions for procedures – you would expect a regulation to have enforcement powers. We use language like Early Help and Support not Service Users and Service Providers.
- So people can live a quality life, there should be powers. Maybe you should work through a few case studies to see what these look like in practice.
Q83. Would the regulator's role be improved by strengthening the codes of practice to compel employers to adhere to the codes of practice, and to implement sanctions resulting from fitness to practise hearings?
- Depends on the definition of employers.
- Are you meaning people with SDS and people who work for them?
- How would it work in an informal situation?
- Definition of employer and how would this work in peoples own homes?
- Does it need split differently?
- May need to depend on how many people you employ i.e. single employers v’s large company. Thinking about size and scale.
Q84. Do you agree that stakeholders should legally be required to provide information to the regulator to support their fitness to practise investigations?
- No responses
Q85. How could regulatory bodies work better together to share information and work jointly to raise standards in services and the workforce?
- Data is going to be critical in terms of regulation as well, especially now that the UK has left the EU and data protection legislation is potentially a risk for individual people and for organisations
- Data sharing and how will that be facilitated i.e. named person. Very keen to understand if there’s an overarching body, cutting down sharing of data between different entities.
Q86. What other groups of care worker should be considered to register with the regulator to widen the public protection of vulnerable groups?
- Social work assistants given the range /level of work they carry out
- SDS has enabled family members and friends to provide care, this should deff be considered for regulation
- It comes back to the point about care. SDS empowerment is essential but there is no barrier to a registered worker being struck off and being employed as a PCA.
- This should be rephrased to what type of care should be regulated and start from that, then look at most effective way of doing it.
- What is the aim, is it for control? Don’t want to over regulate it but people need to be safeguarded. Could be a powerful situation but there are those that are vulnerable.
- Safety and support are key – people need to have access, even as an individual
Name of event: National Care Service Consultation– Regulation Digital engagement session
Date and time of event: 22/09/21 (14:00-16:00) – (Notes for breakout 2 2:45 -3:50
Breakout 2 – 2:45 – 3:50
- Core Principles for regulation and scrutiny
- Strengthening regulation and scrutiny of care services
- Market Oversight
- Enhanced powers for regulating care workers and professional standards
Strengthening regulation and scrutiny of care services
- There are times where the regulator is required to act more quickly and decisively. The standard of care should be high and expectations should be high. We also need to balance risk with people who may be disrupting services and there needs to be an emphasis on supporting improvement - working alongside providers to do this. These points do not come across strongly in the consultation. We also have to take into account that impact that more swift action may be needed for when providers fail. There would need to be voids built into capacity to protect from the impact of failed providers. In terms of additional enforcement there needs to be greater clarity for providers to follow processes and any change to regulatory landscapes needs to take account for individuals.
- There are opportunities to rethink regulation. What matters most is people’s lives and experiences and they are the things we should be gathering information about to inform policy decisions. What is going well with experience and what is not going well? We are still thinking from a systems process rather than a person’s process focus? Accessible digital technologies experiences need to be shared and we need to think at scale about how social intervention is helping them.
- Many factors can cause a care provider to fail - contracts teams should be able to cancel contracts without the need for long drawn out enforcement action by the CI, as done with Local Authorities.
- Contributor emphasised the importance of digital technology in communicating with service users.
- A plea to consider the health and safety of employees as well as service users. The regulations focuses on competence of workers rather than health and safety. There is a need for different enforcement powers instead of just additional powers through a different model. You could look at the Health and Safety’s reporting powers for examples.
- We have to look at the UK Gov approach around how are we going to pay for this. Would the Scottish Gov use their tax raising powers to raise funds for Social Care? How are we going to pay for this? The Achilles heel of the independent report by Derek Feeley is that it does not set out how it will be paid for.
- The person-centred approach is important and the focus should be on experiences and outcomes. The voice of the service user should be amplified. If scrutiny is done well, that should act as a diagnostic and support improvement. HSC standards are person-centred and written from the perspective of the user and human rights based. Enforcement powers should be used sparingly but they are necessary. It is less about additional powers but more about strengthening the current powers to overcome the obstacles where there is a serious risk to life or wellbeing.
- Services that are working well in the third sector should be championed – they need more funding and recognition.
- There is a proposal for market research and analysis to sit somewhere else - will this bring duplication and confusion? What is the smartest way for these to sit? Is it about market oversight or individual scrutiny of providers to ensure they don’t collapse and fail. There needs to be more detail on the responsibilities.
- There is no capacity anywhere just now and anyone could go under. There is no provider of last resort, There are lots of problems in care, there is no space in the community or care homes for people to get care. There needs to be more support on the frontline. Constantly being on the edge is not something to be comfortable with. There needs to be action now instead of waiting till 2026. People need to stand up for care at home. Carers are working 16 hours a day and they need the recognition and action now.
- In relation to the question of scrutiny of providers, we have to take into account the situation at the moment. There are all kinds of risks and so many providers are struggling financially right now and further scrutiny might cause the failure that you are seeking to avoid. There needs to be a careful balance to this. There are extreme pressures on providers so to add another could be a risk. We cannot avoid the current reality and if this is going to be done, how it is going to be done so that it is sensitive to providers?
- It might be worth considering public interest criteria for intervening in the market (rather than simply overseeing the market).
- Providers are on their knees. Recruitment is practically non-existent, and staff are leaving to work in shops, etc for more money and better conditions. There are new services going for tender, and although providers desperately wish to go for these new services they cannot staff the services they currently have, never mind taking on additional services. Staff are exhausted, working extra hours, and not getting the time off they need for their well-being. This can only be sustained in the short-term. There is a huge concern within the third sector that many organisations will not survive this crisis.
- A contributor suggests the territorial army could provide support. Could there be an idea for unemployed people do some hours of care a week as work experience and to cover the gaps? Looking at schemes to get people into social care and protect the workforce.
- The point about sensitive information is important. In the Care Inspectorate they see the market oversight function as linked to intelligence rather than scrutiny. A different skillset is required. Rather than market oversight it is more about market insight to try to get ahead of the curve and predict where difficulties could lie. Collaboration is also essential.
Enhanced powers for regulating care workers and professional standards
- A contributor is mindful of when the regulator came in for childcare providers and they lost 50% of childcare providers due to lack of support to meet the standards. There is often unintended consequences of this. There needs to be a network of support as often providers may not feel confident enough to meet the regulations or the professional standard.
- A contributer questioned the role of the Scottish Social Services Council (SSSC), Is it a name and not much more – is it just something you have to pay £25 for and give lots of statistics to once a year? What exactly are the roles and responsibilities of the SSSC?
- The role of SSSC needs to be communicated more effectively and there needs to be more interaction with providers. There would be a lot of complexity around how regulation would be expanded. It would have to be differently for different groups. A lot of work would need to be done on the proportionate scope of further regulation for improving standards without unintended consequences.
- There is a huge volume of work bringing the groups proposed onto the register. That poses a risk and we need to be careful about unintended consequences. We need to simplify the register - there needs to be a minimum expectations around training and qualifications. We set the bar high which is not a bad thing but makes it difficult to get into social care roles. Currently residential childcare can be done without having to be registered and go through years of qualifications. We need to check that we are not over professionalising the workforce who’s function is to provide human support. We need to strike a balance to help people to come into these job roles. There is a sense that the SSSC are more proactively punitive than other overseeing bodies. There needs to be a shift in perception of the SSSC and create something that has parity with other parts of the community health workforce. The model is not clear - are we tweaking what is there or looking at something brand new? There is merit in looking at how people can purchase their own support.
- Would it be appropriate to have a multi-faceted approach with different levels of care? This could be done in line with qualification level and experience.
- There are big questions about registration of PAs that will require close consultation with them and those who employ them.
- The capacity impact of a further increase to the scope of the regulator is a further reason I support the implementation of a National Social Work Agency.
- The implementation of more stringent rules in relation to registration needs to be mindful of the current staffing crisis in respect of social care.
- As previously mentioned, the recruitment crisis is the biggest issue in social care right now. We can’t do anything without them. The requirement to register is undoubtedly a barrier to people coming forward. Our emphasis should be to simplify and streamline this.
- How can we ensure that we have a workforce that is flexible? Looking into the future. Can we encourage the private sector to build in care responsibilities and look at how that builds into community led support. Organisations simply to do not have the capacity at the moment. There could also be unintended consequences of market oversight. There needs to be democratic accountability locally and investment is support provided by communities. Remote, rural and islands communities need to also be considered. There is a need to ensure that there is recognition that one size does not fit all.
NCS digital consultation event: regulation – 22 September 2021
Breakout room 3 (1st half)
General point on consultation
- Seems to be all based on adult social care only, why does it not include other parts of the sector such as children’s services?
- You need 3 things which are important: 1 is a care regulator for Scotland which covers everything, 2 each acre facility needs a board for governance and 3 is third party reporting
- Principles are widely enough drawn that not many people will object to them but more discussion may arise around implementation
- Think language in core principles could be strengthened to be clear about expectations and what is required (this comment was from care inspectorate)
- Would like to see something in core principles about highlighting good practice
- Liked the language about the purpose of the NCS – ensuring that everyone has the support to live their best valued lives, this is something I would like to see up front in principles and remind people what the NCS exists for
- Will there be an independent regulatory body so that we don’t ‘mark our own homework’
Enforcement of powers
- Think it’s important that people understand that SSSC’s codes of practice has two parts – employees and employers. Employees code is enforced around 1500 per year whereas Employers code has never been enforced in 20 year history of SSSC. This sends wrong message to workforce who are now scared to come forward. Personally think there should be a monetary fine for employers not abiding by code.
- Care inspectorate is an inaccurate description, only 11% of care homes have any criticism by CI of their care facilities, this undermines confidence in regulation which needs to be addressed.
- Agree with the above. We need to go step further than changing language of core principles, need a culture shift particularly in SSSC codes of practice. People currently fear the codes instead of see them as something to look to for guidance and good standards. A lot of “do not’s/ don’t do this” in codes of practice and not a lot of “do’s/ do this”
- Structure of regulation – one NCS objectives is to remove barriers between different types of care. If we are trying to remove barriers but regulators stay different from each other, this might not be possible. Should regulators come together in one place/merge into one?
- Current enforcement powers are very corporate and not person centred. Would like to see regulators have the power (similar to Mental Welfare Commission or EHRC) to go into a care situation and investigate first-hand the quality of care is given when a complaint is made. Might also need to look at legal powers to deploy when needed when an individual’s rights are being breached
- (Care inspectorate came in to say that these powers already exist, but proposals in consultation is about enhancing these powers to speed up processes )
Name of event: Regulation
Date and time of event: 22 September 2021 Breakout room 3 (15:10-15:50)
Facilitator: Vikki Milne
Note taker: Nadia Bessos
Chapter 6 – Regulation
- Market oversight function
Enhanced powers for regulating care workers and professional standards
Market oversight function
- Market oversight pivotal as seeing fewer providers available therefore less choice for people needing support. That needs done by regulator - please not lots of extra information gathering on identified financial risks, too many bodies already asking eg contingency planning. Regulators should find and share that information between themselves. No time to deliver service. So much reporting for contingency planning.
- Shortage of fit for purpose data re social care including trends and patterns with workforce, and need eg health population data. What are intentions for resolving this? Social Care data stakeholder group was formed as no central place for data. Providers on other hand are reporting into everywhere. What are intentions for NCS to address this?
- Need careful thought about how market oversight works with commissioning and contracts teams – got potential for duplication. Currently loads of reporting, different formats. Whilst may wish to have national oversight – consider how will integrate with local systems and link with commissioning teams. Links to proposals on ethical commissioning. Local contract management – whilst could be improved in some areas, risk re confusion who doing what and everyone tries to do everything.
- if market found not to be delivering what will NCS do? Eg lack of staff – we know this! Difficult to find staff in remote area.
- concerns re central regulation and oversight function. Well established local arrangements already in place. Could maybe improve some of those but already established. Risk of duplication upon already overburdened providers. Adding risk to sector in crisis. Could build upon issues around financial oversight and in terms of sustainability, but then also going to have same scrutiny of overspending statutory services? Where their budgetary control is always backfilled by the public purse, and will they be held to same account or bailed out? Need further consideration of this.
- People who wish to access services have to repeat themselves for every assessment, information not shared by services. Duplication from service user’s perspective.
- Backing up earlier point re recruitment difficulties. Care workers need to be resold to public to improve recruitment. NCS should have this as immediate priority. Show what working in care can be. And need appropriate pay. But positive selling of working in care. NCS to raise esteem of roles.
- Reinforce recruitment point – function and purpose of social care needs to be better understood.
- Building on point re profile of social care worker, fair pay essential, but also to highlight benefits of work would be much easier to sell if underpinned by professional pay for professional work.
- Not saying no central record-keeping, but risk just now with relationship that’s held between partnerships and those providing care within their areas. Something of benefit to hold central intelligence, but have to be shrewd how go about doing that.
Enhanced powers for regulating care workers and professional standards
- Welcome strengthening of requirement for employers re upholding of Fitness to Practice conditions, attainment of qualifications and CPL of their workforce. But challenges already mentioned. In building based model a challenge in itself to manage, but Care at Home/Housing Support, growing number of managers and supervisors in those services keeping flow of care providing directly themselves and in recruitment crisis, bad time to lay additional responsibility on employers unless done proportionately and considering local implications, which vary in rural/urban settings. 20 years on from beginning regulation so good time to review.
- Can’t underestimate cost/price for training and needs built into what we pay for our care and relate to earlier point about how we value our highly trained and expert workforce. And SSSC being able to get info from employers about their employees undergoing Fitness to Practice cases – employers don’t have to deliver that. So often workers waiting, with sometimes no further action for years. Related to human rights. Various views on that. Just now rely on Care Inspectorate to enforce adherence to Employers Codes of Practice. Seems to be a disconnect, not convinced how it works. Not clear whether that is being consulted on directly. Initially read as SSSC may be getting more powers to make direct requirements of employers. But already have way of doing that. Not particularly clear in consultation that that would change. Risk of double scrutiny. Complex.
- Re plugging the gaps re who is/is not regulated worker – makes sense that building-based day services worker treated same as Care Home, Care at Home worker. Someone mentioned earlier issue if use SDS Option 1 – become employer, will become responsible for worker doing SVQ? Who will pay for that as it is expensive. It needs to be reflected in fee rates. If upper limits are in place for fee rates, it leads to a disconnect between rhetoric of respecting workers, fair treatment, career with progression. Saying you can only charge £17 per hour means that there is not enough to pay for pension, holidays etc. Staff members themselves pay for registrationevery year. SSSC do not have the resources to meet current requirements. If you add a slew of additional people to regulate, and don’t have resources in place, it is not good for anyone.
- High pay required in recognition of high quality care work and to cover cost of regulated workforce.
- Personal Assistants (PA), who are not regulated – balance high quality and flexibility of that system with regulation, training, standards that people should expect when purchasing care.
- PA employers should be checked, to make sure they are looking after PAs, but have the choice of employing PAs who may not be up to standards on open market (for example, people with a learning disability or prison experience). Recruitment of Pas could be just asking for kindness, patience, a willingness to learn, reasonable fitness. No qualifications needed, training will be given. Please consider keeping PAs an exception. SDS – choice and control on who employ, fine for employer to be checked on provision of essential training eg movement and handling training.
- Until we get to fair pay, introducing regulation at this time will make it harder to recruit and we have a shortage of Care at Home staff and PAs. We need career structure too, then we can change regulation.
- Should regulators be empowered to inspect a provider as a whole as well as specific services?
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