National Care Service: business and regulatory impact assessment

Summary and recommendation

Establishment of the National Care Service

The National Care Service (Scotland) Bill aims to improve the quality and consistency of social care support in Scotland, provide additional support for unpaid carers and ensure the social care workforce is professional, skilled and valued. It also aims to strengthen the integration of health and social care by enabling the creation of a single system and accountability for social care, social work and community health. The Independent Review of Adult Social Care published in 2021 recommended that the Government take action to tackle inconsistencies in adult social care support, ensure a human rights based approach to care, introduce an ethical approach to commissioning of care and create a National Care Service with Scottish Ministers accountable for social care similar to the way that they are responsible for healthcare.

The Bill sets out a framework to create a National Care Service, making Scottish Ministers accountable for social care and social work which will be delivered through a network of local care boards. Local care boards will be responsible for strategic planning and ethical commissioning of social care and community health in their local areas. Healthcare will continue to be delivered by health boards as at present. Social care could be delivered through procurement or other arrangements including by local authorities or in house by the local care boards or by third and private sector providers. Both nationally and locally, the NCS will work within a set of principles to ensure social care, social work and community health is designed with those who use it, supports the realisation of human rights, and is recognised as an investment in society. As part of the NCS the Bill provides for:

• A streamlined system of complaints and the introduction of a Charter of Rights for people accessing care;
• Scottish Ministers to have the power to set up a statutory scheme through regulations to permit data sharing for efficient and effective provision of services by, or on behalf of, the NCS and NHS. Scottish Ministers will also have the power to set information standards; and
• Requires Scottish Ministers and the local care boards to produce publically available strategic plans and ethical commissioning strategies and enables the invitation to tender for social care contracts to be restricted to mutual organisations.

The costs and benefits of the different options considered for the establishment of a National Care Service will be considered in detail in a Strategic Outline Case and Programme Business Case to be published separately. Wider benefits to people accessing social care and support, unpaid carers, care workers and to Scotland's economy and society are discussed in the National Care Service Statement of Benefits published alongside the Bill.

Alternative options considered to establishing a National Care Service retain the existing arrangements with local authorities having responsibility for social care and social work. These options would allow for improvements to be made along the lines of existing work including through the strengthening of Self-directed Support, the strengthening of Fair Work in social care and continuing to grow and spread good practice and preventative approaches to care. However, the scale and impact of the changes sought in the IRASC are unlikely to be achieved.

Whilst there was a balance of views expressed in the NCS consultation, when asked, the majority of respondents were in favour of the establishment of the NCS. Concerns were expressed around the loss of local level accountability for social care, whether it could address the needs of remote, rural and island communities, impacts on local workforces and the potential for disruption during the transition to a National Care Service.

Establishing a National Care Service and making Scottish Ministers responsible for social care with local care boards commissioning community health and social care together, means it is possible to have national standards, backed up by improvement activities and performance management. This will mean it will be possible to:

• Embed human rights based approaches to care and make sure people's experiences of social care and support improve;
• Strengthen the integration of health and social care to help smooth transitions for people between different services;
• Strengthen ethical commissioning of care and ensure there are clear requirements for care providers; and
• Help to ensure the social care market remains vibrant and stable, ensuring continuity of care.

It is important that the NCS is developed through co-design and engagement with people with lived experience and with partners and stakeholders. The Bill does not therefore set out full details of how it will work. As such it is difficult to fully estimate the costs and benefits of the establishment of the NCS. These will be developed through further business and regulatory impact assessment as the NCS develops including of any secondary legislation from the Bill.

The introduction of the Charter of Rights and reforms to complaints and redress will support people accessing NCS services to better hold the system accountable and receive the services they need to thrive. This may lead to an increase in complaints or feedback from people accessing services which could increase the administrative and resource burden on some delivery bodies and oversight bodies. Taken together, it is anticipated that the Charter and the reforms to complaints and redress will have minimal impact on sectors but will result in increased accountability to people accessing services that will in turn facilitate service improvement.

The information sharing and information standards provisions within the Bill would enable the creation of the integrated electronic social care and health record, as well as support wider digital and data services to deliver the NCS. This is subject to co-design and there will be further business and regulatory impact assessment as this is developed.

Right to Breaks from Caring

The results of the NCS consultation demonstrated clear support for the introduction of a right to breaks from caring. There was also support for a hybrid, flexible approach enabling easy-access support for carers with low levels of need and the option of personalised breaks support under the Carers Act for those in more intensive caring roles.

These measures are designed to protect carers' health and wellbeing, helping sustain caring relationships. This will reduce costs which would otherwise arise for the NHS, Local Authorities and Integration Authorities through unplanned hospital admissions, failed hospital discharge and additional residential care when caring relationships break down. Protecting carer health and wellbeing should also lead to wider benefits to the Scottish economy by enabling more carers to remain economically active, reducing the gender pay gap and social security costs.

The costs for all the options would be expected to be similar, between £116 million and £170 million, with the central estimate being £143 million. (As above, the costs of additional personalised breaks under the Carers Act as a consequence of the NCS Bill would be between £82 million and £133 million by 2034-35. The easy-access breaks support does not require new legislation.) The preferred option is considered to bring the greatest benefit to unpaid carers and the people they support. This is the option provided for in the Bill.

Anne's Law

The consultation on Anne's Law demonstrated a clear desire for legislation to introduce a right to visiting in care homes. This is supported by care home providers and by the Care Inspectorate. It offers the most clarity and certainty for residents, families and care home providers.

Care home providers do not anticipate significant costs from the introduction of Anne's Law although this is conditional on the availability of PPE and testing kits etc. in the event of an upsurge in COVID-19 infections or a future pandemic. There will be some additional costs for the Care Inspectorate in terms of the development of new guidance and increased complaints. These are estimated to be between £186,000, and £90,000 in 2023-24.

The preferred option, of legislation for Anne's Law, is expected to bring benefits to care home providers and to residents and their friends and families with a case to be made that there will be savings realised in other aspects of the Health and Social Care system.

Care Inspectorate Enforcement and related powers

The two options considered to strengthen the Care Inspectorate's enforcement powers were to use the secondary legislation powers currently available under the Public Services Reform (Scotland) Act 2010 or to introduce new primary legislation through the NCS Bill.

It is not anticipated that the proposed changes to the enforcement powers would incur additional costs or resource requirements to service providers, the Care Inspectorate, local authorities, health boards or Integration Authorities. Of the two options, the introduction of new primary legislation enables more fundamental changes to be made and this is the option being pursued.