Social care - Independent Review of Inspection, Scrutiny and Regulation: recommendation report

6. Theme 2 – what needs to be inspected, scrutinised, and regulated?

Inspection, scrutiny, and regulation is an essential element of providing protection and safety for those who use social care support services. It is a way of giving assurance, to families, friends, and unpaid carers, that their loved one is in receipt of good services, and it provides assurance and evidence of quality to those commissioning and delivering social care support.

It was important for the Review to fully understand which social care support and linked services were currently subject to inspection, scrutiny, and regulation and those who were not. The Review was also keen to explore the evidence to support extending inspection, scrutiny, and regulation to areas identified and what this would mean for people who use social care support and linked services, now and in the future, and for those who work in them. In order to do this the Review asked a number of key questions:

Do you feel there are services that are not currently subject to inspection, scrutiny, and regulation that should be? If yes, please tell us:

a. which type of services?

b. why you think they should be inspected/scrutinised/regulated?

c. who should be responsible for this?

Current arrangements for inspection, scrutiny, and regulation

The Care Inspectorate, Healthcare Improvement Scotland and the Scottish Social Services Council are the main organisations that inspect, scrutinise and regulate social care support services.

Evidence provided to the Review identified a range of services not currently subject to inspection, scrutiny, and regulation. It also heard that there are gaps in the regulation of some staff groups working in social care support services.

One comment shared with the Review, from a service provider was:

It seems incongruent that multiple care services who provide care, to often the same people, have different regulation requirements. For instance, a person may use a harm reduction service for drug use where that service may not be regulated or inspected but then that same person attends a stabilisation service which is regulated.

Gaps in staff groups

Personal Assistants

The Review heard about a number of staff groups that are not currently subject to any inspection, scrutiny, or regulation. These included social work assistants, family support workers, and community outreach groups. The most frequently discussed service – mentioned by a large minority of respondents to the call for evidence and at events – was Personal Assistants (PAs).

The current definition of a Personal Assistant agreed as part of the analysis work being undertaken by Scottish Government and the PA Programme Board to estimate the size of the workforce, is:

For the purpose of this data collection a Personal Assistant is any person directly contracted by someone in receipt of SDS Option 1 and/or Independent Living Fund Scotland in order to help them live independently. This latter person may contract one or more PAs to meet their support needs. We are aware that some people contract with PAs via other funding streams such as the Disabled Student Allowance of Student Awards Agency Scotland; the daily living component of the Adult Disability Payment or by using their personal funds.

The role of a Personal Assistant is to provide support and assistance to their employer to live a full and active life. The employer is the person requiring care and support. The work undertaken by a Personal Assistant can often be varied and may include a number of different elements, usually defined by the employer depending on their specific needs. For example, work can involve supporting a person to wash and dress as well as assisting them to take part in activities that support their wider wellbeing.

Many people in receipt of SDS use it to employ a Personal Assistant. The Social Care (Self-Directed Support) (Scotland) Act 2013 has four options that people can choose from in deciding how their care and support is delivered:

• option 1 – by a direct payment from the local authority/ health and social care partnership to the supported person for the provision of support;
• option 2 – choosing what support someone wants and asking the local authority /health and social care partnership to arrange that for them;
• option 3 – asking the local authority/health and social care partnership to make arrangements for care and support to be put in place; and
• option 4 – a mix of Options 1, 2 or 3.

Under SDS most Personal Assistants are employed using Option 1, but they can also be employed using a payment from the Independent Living Fund. The Independent Living Fund Scotland is a Non-Departmental Public Body (NDPB) sponsored by the Scottish Government and under direct Ministerial control, which provides funding and support to help disabled people in Scotland and Northern Ireland to live independently.

It is estimated that there were around 5,000 Personal Assistants providing social care support to adults in 2021. This data was compiled from Personal Assistants who were approved for a 'thank you' payment of up to £500 for their work under the first wave of the Covid-19 pandemic. The Research Relating to Personal Assistants - Self Directed Support Scotland by Scotland Excel provides a summary of the known PA workforce in 2021 providing social care support to adults who were in receipt of either Self-Directed Support Option 1 or from the Independent Living Fund Scotland in 2021.

There is no requirement for Personal Assistants to register with the SSSC but some do register voluntarily. A number of people that work as PAs may already be registered with the SSSC due to the requirements of other jobs they may have.

As part of the 2021 National Care Service consultation analysis people were asked to consider whether they agreed that all Personal Assistants should be required to register centrally in the future. The majority of respondents agreed that this should become a requirement with 87% (399 of the 461 respondents) of respondents agreeing to this question.

Reasons provided by those in agreement included:

• it offers security and safeguarding of both the PA and the employer/person being supported;
• it ensures standards and pay are equal within the social care support system; and
• it allows access to support and training for the PA.

The Review’s call for evidence heard similar arguments for registration, namely that:

• it would help create a consistent approach to registration for all people working within the social care support sector and provide protection for PA employers;
• it would ensure PAs had access to training and resources not currently available; and
• it would ensure that people were accountable to the SSSC codes of practice.

The Review acknowledges that there is ongoing work led by the PA Programme Board with Disclosure Scotland that is relevant in this area. In particular, changes to the Protecting Vulnerable Groups (PVG) scheme will require some people working as Personal Assistants to secure PVG membership.

Under the Disclosure (Scotland) Act 2020, membership of the PVG scheme will become mandatory for those carrying out ‘regulated roles’ with children and protected adults although there are some exceptions where the activity is carried out in the course of a family relationship or personal relationship. ‘Regulated roles’ will replace ‘regulated work’ as the eligibility criteria for the PVG scheme membership.

Under s.73 of the Disclosure (Scotland) Act 2020, Personal Assistants are required to join the PVG scheme (with the exception of someone carrying out Personal Assistant duties through a family or personal relationship). Work to implement this change from regulated work to a regulated role for the PA workforce, will be part of the transition to the new legislation which will be fully implemented in 2024.

While the Review welcomes this work, and acknowledges this is a complex and sensitive area, it wanted to explore this issue in more depth as it heard conflicting opinion on the role and desirability of registration of Personal Assistants in the evidence it received.

The Review heard a range of views related to the potential for registration being introduced for Personal Assistants. Concerns were raised that it may lead to an intrusive process that could result in the unintended consequence of regulating an individual’s home. Instead of registration for PAs, it was suggested that the PA employer should be empowered and supported to be a good employer thereby improving the skills of the PA and the quality of care they deliver.

The Review was reminded of the unique relationship between the PA employer and the PA, and concern was shared that overregulation could prevent informal collaboration. Additionally, a view was highlighted that there is a difference between regulating organisations and regulation for people. Work is of equal value, skills are transferable, but the nature of the role is very different.

It was also suggested to the Review that registration could pose a risk of reducing the Personal Assistant workforce if more onerous requirements are placed upon it. Solutions suggested included a hybrid approach that could support self- registration, an option that is currently available, and that this approach might also identify Personal Assistants that have other roles in social care that are already subject to registration and therefore avoid potential duplication.

The Review recognises the work already underway in this area, including the co-production of a workplan by the PA Programme Board. The objectives of the workplan relate to the provision of support that maximises strong mutual relationships between Personal Assistants and their employers, that supports the development of the Personal Assistant workforce, and which values and supports the employers to enable them to live a good, independent supported life.

Furthermore, as part of the implementation of the PA Programme Board work plan, there is wider work to scope out a national PA training framework, and to agree a way forward to ensure availability of training for PAs.

In revisting one of the key aims of inspection, scrutiny, and regulation, it was felt that focusing on Personal Assistant registration would be a way to provide assurance that people employing Personal Assistants were in receipt of safe and quality services.

As such, recognising the various views on this subject, balancing the evidence heard, and bearing in mind the fundamental purpose of this Review, the following is recommended:

Recommendation 8 – It is recommended that a co-produced and bespoke scheme of registration for Personal Assistants (PAs) which recognises their skills and role, and opens up access to training and development, should be developed. Such a scheme would expressly seek to not create barriers, and through co- production, would create positive opportunities for both the Personal Assistant and their employer.

In addition to PAs, as noted previously, there are roles across social care support and linked services that are not currently required to register with the SSSC or other professional regulators.

Healthcare Support Workers

Community health services are about person and family centred care, and wellbeing support. These services provide the opportunity to access support in a range of settings including at health and care sites or agencies, in care homes or in people's own homes.

In community care, the clinical professions who work in services are all regulated by professional bodies subject to either HIS or CI inspections. An exception is Healthcare Support Workers (HCSWs) who are employed by the NHS but are not currently subject to registration.

In the analysis report by Why Research, respondents to the call for evidence identified community health services (e.g., nursing, healthcare assistants, and services for those with sight or hearing loss which are not included in present national arrangements), as service areas requiring further inspection, scrutiny, and regulation.

However, the Review is aware that although it is a mixed picture with varying arrangements, some form of regulation or registration is generally in place across most community health services. HIS is responsible for regulating independent clinics, including ophthalmic hearing centres and clinics. Nurses, no matter where they are employed in UK, require to be registered with the Nursing and Midwifery Council, while Dental Nurses are registered with the British Dental Association. Additionally, employees working for organisations or charities that contract with the NHS have employment governance conditions embedded within their contractual arrangements.

Balancing the evidence shared, the Review is clear there should be a universal registration system for the whole of the social care sector. This is also consistent with findings from the NCS consultation analysis, which says:

There was a view that all workers in the care sector should be regulated.

Therefore, the Review recommends:

Recommendation 9 – It is recommended that there should be a universal requirement to obtain registration with a regulatory body for all social care support staff appropriate to their role and setting and that this should be a condition upon joining the social care workforce.

Gaps in services

In addition to gaps in the registration and regulation of particular staff groups, the Review found that there are currently services in both social care support and linked services that are not currently subject to inspection, scrutiny, or regulation.

Drug and alcohol services

A significant element of drug and alcohol services are delivered as part of statutory adult healthcare and adult social work services but drug and alcohol services are not in themselves statutory ones. Alongside statutory services, there is a significant recovery community sector which operates outwith the formal treatment and recovery infrastructure.

At present there are no routine inspection, scrutiny, or regulatory arrangements in place for drug and alcohol services. The Care Inspectorate published a report in 2017 on how Alcohol and Drug Partnerships were using the 2014 Quality Principles in the delivery of services, but routine inspection or scrutiny, of the local services has not been undertaken.

The delivery of services is split between primary, secondary, acute, specialist and mental health care as well as through recovery communities and these are often delivered from community hub settings rather than in hospitals. Many alcohol and drugs services are provided under contract by third sector providers.

The Drug and Alcohol Information System (DAISy) is managed by Public Health Scotland and is published quarterly. Around 40% of all data on DAISy is inputted by third sector partners who would largely be outside the scope of existing scrutiny bodies. Some third sector partners could be subject to inspection, such as those who provide residential rehabilitation services from a registered care home. However, this is only a small number of the current providers.

The Drug Deaths Taskforce Response: A Cross Government Approach, published in January 2023, made the recommendation that:

All services must be appropriately regulated, with standards and guidance developed, and should be subject to regular inspection to ensure safe, effective, accessible and high-quality services.

Recognising the conclusions of the ‘Drug Deaths Taskforce Response’, the Review supports the intention that all drug and alcohol services should be appropriately regulated with standards and guidance developed.

By ensuring that all elements of drug and alcohol services are appropriately inspected, scrutinised and regulated, consistency and quality assurance are supported. It places people at the centre of the services they receive in line with the person-centred approach the Review supports and works to reduce fragmentation in the social care support services people access.

Agencies

The Review is aware that, aside from nursing care, agencies that provide social care support staff to services, are not currently subject to any regulation.

Agency staff currently need to be registered with the SSSC if they are working in a social care support role but the agencies that provide them do not. In some instances, an agency can 'introduce' carers to people who then contract direct with the carer for the provision of care. The agency that acts as the 'introducer' is currently not deemed to be a support service as the support service is considered to be the person, they provide the introduction for. As a result, the agency is currently not subject to any inspection, scrutiny, or regulation.

The Review was also made aware that, in some cases, an ongoing payment might be made to the introducer (i.e., the agency) by the recipient of the care, as a percentage of the cost of the care provided. The Review heard that there is the possibility this can result in those receiving care and their families misunderstanding the position, believing that they are receiving a regulated service.

From the analysis by Why Research, a large minority from across the broad spectrum of respondent types felt that all services should have the same level of inspection, scrutiny, and regulation, with the advantages seen to be:

• consistency of standards across the care service profession and the provision of assurance of care quality;
• providing an adequate or improved standard of care and support to vulnerable people receiving social care support; and
• driving improvements and encouraging best practice across services. This would result in more training and skills development and increased continuous professional learning (CPL) opportunities.

Considering the evidence shared, the Review is clear that for social care support and linked services, consistency is needed across inspection, scrutiny, and regulation, therefore the Review recommends:

Recommendation 10 – It is recommended that inspection, scrutiny, and regulation should be extended to areas not part of the current system, including agencies who provide social care support staff, to help drive continuous improvement and deliver better outcomes.

Cross-border placements

Cross-border placements are sometimes required for people who receive a variety of social care support services; this might include people with learning disabilities, older people or people with mental health issues. They can happen for a variety of reasons such as people requiring services that are not available close to where they live or people wanting to move to be closer to family members. They include people coming to Scotland and being placed out with Scotland. While many have successful outcomes, the Review heard evidence that in some circumstances these can be challenging and complex situations.

For the purposes of the Review the complexities in terms of children’s services illustrate the issues raised.

For children and young people, a cross-border placement usually occurs when those who are subject to a care order elsewhere are placed in care settings in Scotland.

Cross-border placements of children and young people into Scottish residential care settings largely occur due to a lack of provision elsewhere. The Review heard evidence about the complexity of cross-border and long-distance placements for children and young people. We know that such placements result in children and young people being separated and distanced from their families, peers, community support networks and services. Moving children and young people, often to remote places in Scotland, can impact on the ability to plan for the child, or to maintain meaningful contact with family and other key people in the child’s life. Many children and young people are not having their rights protected due to inadequate planning, poor practice and a lack of resources during placement and cross-border moves.

It is recognised that some providers outwith Scotland will establish care businesses in Scotland and will register with the CI. However, there is currently no requirement for discussions to take place with the Health and Social Care Partnership or the local authority in whose location the placement is sited.

This means that for some local authorities there are a number of independent providers within their region, supporting individuals receiving social care support from within and outwith Scotland, about whom they have no knowledge. The Chief Social Work Officer for the local authority has a responsibility for individuals in receipt of social care support within their region at any given time, but it can be impossible to carry out this duty when they are not aware that individuals have been placed from within and outwith Scotland. The different legal systems in Scotland and England can also lead to complexities around restrictions on liberty, for example.

The CI holds responsibility for the inspection of the service once providers are registered but they have no powers or input when individuals are placed. This can be problematic if the placement breaks down and the providers are not able to fully meet the care required. When this happens, the local authority has a duty to step in and assist local providers. This has a significant impact on already pressured resources for social work services and the wider health and social care partnership.

The Review is aware of emerging good practice to improve cross-border placements. A Memorandum of Understanding has been recently drawn up between the four nations to support closer links and communication in relation to cross-border placements. There is now an arrangement for four nations meetings to take place quarterly with regulatory bodies attending some but not all of the meetings.

The Review is also aware of work being undertaken to consider whether or not legislation may be required to compel the UK government to communicate with Scottish counterparts about cross-border placements. As well as this, provision in the draft Children (Care and Justice) (Scotland) Bill is aimed at protecting vulnerable children, whilst providing the flexibility for the system of inspection, scrutiny, and regulation of cross-border placements to respond appropriately and, proportionately in the short and longer term, in ways that cohere with the wider Scottish policy and regulatory context.

The Review recognises this is a complex and sensitive area and, that work has already commenced by Scottish Government and other partners to strengthen protection for individuals in cross-border placements. There are, however, still areas that require to be addressed and the Review recognises the need for this ongoing work to be developed, and its impact measured, and therefore recommends:

Recommendation 11 – It is recommended that further development of stronger links between regulatory bodies across all areas within and out with the borders of Scotland should be established to ensure better regulation, transparency and accountability of providers of social care support services.

Gaps in accountability

Evidence gathered by the Review demonstrated that there is a dedicated and hard-working social care support sector in Scotland. However, it also identified a significant gap within the regulatory framework in terms of visibility and accountability. For example, at present, there are no statutory requirements to be licensed as a care homeowner, or to have a clear line of accountability to service users and commissioners. The Review notes that this is a significant omission in services that are involved in supporting the lives of those, often vulnerable, people who receive social care support in our communities and is a stark contrast to the many requirements for civic and other licensing regimes across Scotland.

It was suggested to the Review that there are challenges around a barring mechanism for providers who have previously been found to be unfit from registering new services. This becomes increasingly complex where the provider of the service(s) is not an individual. The Review is aware that this is a complex area, particularly as many providers are large companies with complicated organisational structures. In these cases, it can be unclear who the responsible person(s) should be.

There are helpful examples of where measures have been implemented to address similar concerns and other perceived weaknesses in regulation, in other policy areas in Scotland and in other countries. In Wales, The Regulated Services (Service Providers and Responsible Individuals) (Wales) Regulations 2017 set out a duty whereby the parent company board must have a named director who is the accountable link to registration, inspection, and local employees. The legislation states:

The application for registration must also designate an individual as the responsible individual in respect of each place at, from or in relation to which a regulated service is to be provided. The Welsh Ministers must be satisfied that the individual is a fit and proper person to be a responsible individual and that they are eligible to be a responsible individual.

In Wales, the introduction of fundamental standards, the fit and proper person requirement for directors and the duty of candour, were part of a wide-ranging set of changes designed to improve the regulation of health and adult social care providers. The purpose of the act was to improve accountability, enhance public confidence, and provide assurance that service users receive safe, quality care and treatment.

Scotland introduced The Duty of Candour Procedure (Scotland) Regulations 2018 which supports the implementation of consistent responses across health and social care where there has been an unexpected or unintended incident that has resulted in harm.

The services it currently applies to are:

• support services;
• care home services;
• school care accommodation service;
• nurse agencies;
• childcare agencies;
• secure accommodation services;
• offender accommodation services;
• adoption services;
• fostering services;
• adult placement services;
• day care of children;
• housing support services; and
• social work services offered by or on behalf of local authorities.

In Scotland, The Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 contains detail relating to fitness of providers, which includes situations where people are not deemed to be suitable to provide a service.

Services registered with the CI are required to have a registered manager who is named on the CI Certificate of Registration. The registered manager needs to have a relevant practitioner qualification which must meet the requirements for the relevant part of the SSSC register. There is currently no requirement, however, for anyone from a parent company to be named as a responsible or accountable person.

In recognition of the gaps identified within the regulatory framework in terms of visibility and accountability, the Review recommends that:

Recommendation 12 – It is recommended that the best practice from other nations’ regulatory landscape is explored and considered with a view to enhancing transparency and accountability, particularly in relation to there being a named, accountable link to registration, inspection and local employees.

Recommendation 13 – It is recommended that The Social Care and Social Work Improvement Scotland (Requirements for Care Services) Regulations 2011 be reviewed to ensure consistent, effective and comprehensive applicability of the fit and proper person provisions across social care support services in Scotland.

Gaps in market oversight

The Review heard that at present there is little formal market oversight of the social care support sector. There is a lack of oversight of financial viability of services and planning on where services are located with one example being care homes opened in areas that already have sufficient bed capacity.

The IRASC proposed that the care home sector becomes a more actively managed market, with the CI taking on a new market oversight function. The intention would be to provide a long-term strategic vision, and an overview of the care home sector taking into account local needs and the balance of providers. This Review finds that further developing market oversight would enable more effective mapping of the social care support sector and would enable the identification of where specific support and action is required to ensure that outcomes for people experiencing care can be fully met.

The CI currently obtains financial information when registering new services, such as business plans, forecasts and financial declarations. However, while it may examine these materials it has no formal role in assessing financial or business viability.

In England, s. 56(1) and (2) of the Care Act 2014 requires that, where the Care Quality Commission (CQC) are satisfied that a registered provider is subject to the market oversight scheme is likely to become unable to carry on a regulated activity because of likely business failure, the CQC must inform the local authorities what it thinks will be required to carry out the temporary duty to ensure continuity of care.

The NCS consultation also reported strong support for the regulator having a market oversight function with 84% of individuals and 87% of organisations responding to the question, 'Do you agree that the regulator should develop a market oversight function?'

This Review believes it is necessary to develop measures to ensure an understanding of the sustainability of social care support services in Scotland.

This would be supported by the development of a market oversight function across social care support. As part of considerations for a National Care Service, the Scottish Government has started to consider how greater market oversight can be achieved. The Review is aware of this work and considers that notwithstanding the development for the potential NCS and associated market oversight function, there is an urgency to developing this knowledge and understanding of the market that precedes the implementation of a NCS. On this basis, the Review makes the following recommendation:

Recommendation 14 – It is recommended that Scottish Ministers make appropriate arrangements for market oversight and sustainability in the social care sector.

Revisiting the definitions of care for inspection and regulation

Some of the challenges in the inspection, scrutiny, and regulatory landscape highlighted in this Review are compounded by some of the language and terminology used in the current legislation. For example, Schedule 12 of the Public Services Reform (Scotland) Act 2010 contains a list of care service types and a set of corresponding definitions which determine which services the CI regulate and inspect. The definitions of care span several professional groups and services including, early learning and childcare services, fostering and adoption, and secure care and accommodation services for people involved in the criminal justice system.

The current definitions include ‘care at home’ and ‘housing support services’ which requires the CI to inspect each service separately when they are often provided by the same organisations to the same people.

The 2020-21 Programme for Government Protecting Scotland, Renewing Scotland included a commitment to complete a review of care service definitions contained within the Public Services Reform (Scotland) Act 2010. The Institute for Research and Innovation in Social Services (IRISS) was commissioned in 2020 to review the care service definitions and provide feedback on what challenges the current definitions pose as well as the changes the sector wants to see. The Review of Care Service Definitions: Challenges and Recommendations (November 2021) found that the current definitions:

… hindered person-centred care, exacerbated the current challenges of integration and created barriers between social work and social care. Stakeholders also felt the current care definitions complicated the practical operation of the SSSC Register for social care workers and further challenged professional roles in this sector.

The report also showed that the definitions posed challenges for social care support services to work both more autonomously, and with others across professions. The research further highlighted that some of the language used in the current definitions was outdated.

In recognition of the challenges experienced by the sector and the barriers that exist, as highlighted by the evidence shared with the Review, it is recommended that:

Recommendation 15 – It is recommended that the list of care service types and set of corresponding definitions as set out in Schedule 12 of the Public Services Reform (Scotland) Act 2010, are assessed for fitness for purpose.