Social Care (Self-directed Support) Bill: Final Business and Regulatory Impact Assessment (BRIA)

Final Business and Regulatory Impact Assessment (BRIA)

Title of Proposal

Social Care (Self-directed Support) (Scotland) Bill

Purpose and intended effect

• Background

Self-directed support is a term that describes the ways in which individuals and families can have informed choice and control about the way that social care and support is provided to them. It includes a range of options for exercising those choices.

The Government first consulted on proposals for a Bill on self-directed support from March to June 2010, and a large majority of respondents were supportive of new legislation. A partial Regulatory Impact Assessment (RIA) was published alongside this first consultation.

http://www.scotland.gov.uk/Publications/2010/04/sdspartialria

Only four specific responses to that document were received. However, many respondents made comments on the main consultation document which were relevant to the questions of cost, benefit and impact.

A second consultation on a draft Bill ran from December 2010 to March 2011. Again, a large majority of respondents were supportive. An updated partial Business and Regulatory Impact Assessment (BRIA) was published alongside the consultation.

http://www.scotland.gov.uk/Publications/2010/12/15105332/23

Half of respondents (56 in total) either answered a specific question on the BRIA or provided views relevant to the BRIA through answers to other questions in the consultation.

This final BRIA seeks to build on both the partial RIA and the partial BRIA, taking into account the comments received.

• Objective

Self-directed support is about achieving better outcomes for individuals, through informed choice and increased control. The Bill aims to:

• consolidate and modernise existing legislation;
• provide a legal framework for self-directed support;
• remove some of the barriers to self-directed support for specific groups; and
• enable self-directed support for carers, in specific circumstances.

The Bill is intended to complement and support the National Strategy on Self-Directed Support in encouraging and enabling major service redesign in adult social care and support, and thus support a significant increase in the number of people who actively direct their own support. Some of the impacts outlined here relate to both Strategy and Bill, as both are part of the same drive towards change.

• Rationale for Government intervention

Demographic change, reductions in budgets and rising expectations from citizens present three significant challenges for Scotland's health and social care sector. In response our public services should be of the highest quality, continually improving, efficient and responsive to people's needs. The Scottish Government is addressing the challenges ahead through a range of policies including the NHS Quality Strategy, reshaping care for older people, the closer integration of health and social care and a variety of strategies on carers and young carers, people with dementia, autism, people with mental health problems and, in relation to children and young people, Getting It Right For Every Child (GIRFEC).

The Scottish Government's policy to grow and develop self-directed support for social care helps to address the third of the challenges listed above: rising expectations from users. The Christie Commission on the Future Delivery of Public Services¹ recognised the importance of personalisation approaches in achieving outcomes and the scope for development of self-directed support, calling for action to build capacity and raise awareness to encourage broader participation. A number of other prominent reports, including the Scottish Independent Budget Review² , NESTA's Radical Scotland³ and the 2020 Public Services report⁴ , have recognised the necessity, in the words of the Christie Commission, to ensure that services are "built around people and communities, their needs, aspirations, capacities and skills"⁵ . The further development of self-directed support will help to respond to this call.

Self-directed support encompasses a number of different options for directing your own support. The Scottish Government recognises all choices as equally valid, but it is seeking to encourage more people to actively direct their own support - that is, take control through a direct payment or directing the available resource. There is strong evidence of the benefits of these types of self-directed support to individuals, in terms of achieving better outcomes. Research evidence shows that the majority of people using self-directed support in an active way feel more positive about the impact on the quality of their care and support⁶ . Self-directed support ensures that citizens are empowered to be self-reliant, where possible, and promotes choice and control for all to design support tailored to their individual needs, rather than assuming a one size fits all approach.

Self-directed support has a role in supporting the Government's overarching aim of growing the Scottish economy. It enables people to have flexibility in their care and support and promotes confidence and wellbeing. This individually tailored, practical approach can be the gateway to equalising access to education, training, employment, economic and social participation, supporting the empowerment of individuals to gain equality of opportunity and sustain their citizenship. It also contributes to improving health and well-being and tackling health inequality. Single Outcome Agreements between the Scottish Government and local authorities provide a framework for working together, with the common ambition of improving the quality of life and opportunities in life for people across Scotland. The strong focus on outcomes associated with this Bill supports the wider government agenda of working towards better outcomes.

There has been a steady increase in use of direct payments (the most well-known mechanism of self-directed support) over the last 10 years. However, the overall numbers of people benefiting from actively directing their own support remains low. The Scottish Government wants to build on the achievements made to date, remove any unnecessary barriers put in place by existing legislation and provide a clear and consistent framework to allow for development in the future.

Consultation

• Within Government

Discussions with Scottish Government colleagues from relevant policy teams have been ongoing throughout the Bill's development.

Specifically, Bill team officials consulted:

• colleagues from the wider Adult Care and Support Division, particularly on carers issues;
• colleagues from Justice Directorate, the Office of the Public Guardian and the Mental Welfare Commission for Scotland on proposals around people who find it difficult or impossible to direct their own support;
• colleagues from Reshaping Care and Mental Health Division, on proposals to extend eligibility for self-directed support;
• colleagues from Children and Families Directorate, on self-directed support for children and young people;
• colleagues from Early Years and Social Services Workforce Division; on workforce issues;
• colleagues from the Integration and Service Development Division, on the relationship between self-directed support and the health and social care integration agenda;
• colleagues from the Joint Improvement Team, on issues such as outcomes focussed assessment and resource allocation.

All these colleagues have contributed to development of the Bill and continue to be involved in the policy processes around the National Strategy as the policy team seeks to understand the implications of self-directed support across their areas of responsibility.

In addition, a variety of organisations including the Office of the Public Guardian and the Care Inspectorate have contributed to the Self-Directed Support Bill Steering Group⁷ . This group first met in August 2010 and has a remit to inform the development of the Bill. Members of the group include supported people, care and support providers, support organisations, local authorities, the Association of Directors of Social Work and the Convention of Scottish Local Authorities (COSLA).

• Public Consultation

Proposals for legislative change arose from a roundtable reference group on self-directed support, convened in June 2008 by the Scottish Government. In addition, the Government held a number of locally-based consultation events and specific events for political groups during 2009, to explore the potential content of the Bill.

From March to June 2010, the Government held a first public consultation on proposals for a Bill. The consultation comprised 2 elements: the invitation for individuals and organisations to submit written responses to a discussion document and a series of consultation events held in partnership with a range of organisations. Responses were published on the Scottish Government website in August 2010:

http://www.scotland.gov.uk/Publications/2010/08/06131128/0

An analysis report and a Scottish Government response were published in September 2010:

http://www.scotland.gov.uk/Publications/2010/09/16114749/0

http://www.scotland.gov.uk/Publications/2010/09/16114826/0

A second public consultation on a draft Bill ran from December 2010 to March 2011. Again, the consultation included both the invitation for individuals and organisations to submit written responses to a discussion document and a series of consultation events held in partnership with a range of organisations. Responses were published on the Scottish Government website in May 2011:

http://www.scotland.gov.uk/Publications/2011/05/19110748/0

An analysis report was published in June 2011:

http://www.scotland.gov.uk/Publications/2011/06/15152937/0

A Scottish Government response was published in October 2011:

http://www.scotland.gov.uk/Publications/2011/10/10131045/0

In both consultations, a large majority of respondents were supportive of the Bill, although there were differences of opinion on some matters of detail. All the views expressed were analysed and considered, and have helped to inform the development of the Bill.

The Scottish Government has also convened a Bill Steering Group, as noted above. This is a group of key stakeholders, including COSLA, whose remit is to inform the development of the Bill. The first meeting of this group was in August 2010 and it has since met every 2-3 months. The group will continue to meet throughout the Parliamentary stages of the Bill.

• Business

The Bill primarily places duties on local authorities. However, a variety of businesses will also be affected by this legislation. This includes care providers, support organisations, and individuals, who have effectively become micro businesses through the choices they have made in employing others to deliver their support needs.

Many businesses, as stakeholders, have been consulted and have responded as part of the consultation process. Businesses are also represented on the Bill Steering Group through Scottish Care and the Coalition of Care and Support Providers in Scotland.

In addition, as part of the second phase of consultation a meeting was convened with representatives from 6 businesses specifically to discuss the potential impacts of this Bill in more depth and face to face. Further details on this discussion can be found in the section on Scottish Firms Impact Test.

Options

The Bill can be split into the following areas, each with options which were considered:

Framework provisions. The Bill is about giving choice and control to the individual, in order to achieve better outcomes. The policy intention is that it should be available to all but imposed on no-one. To do this, the Bill introduces the principles and terminology of self-directed support into legislation and provides a clear legislative framework for self-directed support. It sets out the options for directing your own support and places firm duties on local authorities to make these available, making it clear that it is the individual's choice as to how much control they want to have. It makes it clear that, where a person has some capacity and wishes to direct their own support but finds it difficult to do so, a local authority should allow family, friends or 'circles of support' to help them. It provides a right to review, where an individual changes their mind about the choice they have made. It also ensures a service user must be told where they can get information and advice to make an informed decision, including independent services.

• Option 1 - do nothing;
• Option 2 - introduce a self-directed support framework to ensure informed choice and control; or
• Option 3 - make direct payments the default option.

Carers. The Bill provides a power to local authorities to provide support to carers following a carer's assessment, and provides that, where this is to happen, the carer must be offered the options under self-directed support.

• Option 1 - introduce a power for local authorities to offer support to carers in very specific circumstances only;
• Option 2 - introduce a power for local authorities to offer support to carers; or
• Option 3 - introduce a duty on local authorities to provide support to carers.

Duties in relation to direct payments. Existing legislation relates to direct payments rather than self-directed support (direct payments are a mechanism of self-directed support). The Bill consolidates this existing legislation, clarifying the rules for service users and providers and modernising the law. It allows Ministers to make regulations about direct payments, as they currently do.

• Option 1 - do nothing;
• Option 2 - consolidate and modernise existing legislation; or
• Option 3 - instigate a comprehensive review of all social care legislation.

Joint working with the NHS. The Bill makes it clear that, when a local authority delegates social care duties to the NHS, they also delegate the duties under this Bill.

• Option 1 - do nothing;
• Option 2 - make amendments to the Community Care and Health (Scotland) Act 2002 to ensure that, whenever local authority social care duties are delegated to the NHS, duties under this Bill are delegated too; or
• Option 3 - place duties on the NHS directly through the Bill.

• Sectors and groups affected

The sectors and groups that may be affected by this Bill are:

• individuals who have an assessed need for social care provided in their own home, to help them to leave their home to take up social or education opportunities, or provided in a residential setting⁸ ;
• individuals who provide care and support;
• Scotland's 32 local authorities in their role in assessing people's social care needs, in procuring care and support and in some cases providing social care and support direct to individuals;
• providers of social care and support services, including the third sector;
• support organisations, including user-led support organisations;
• statutory bodies;
• professional bodies; and
• the NHS, on whom the impact is likely to be positive in terms of things such as hospital admissions and the effect of healthier lives.

Some of the proposals impact more on particular groups than on others. Where particular groups are affected, this is identified for each particular proposal at Annex A.

• Benefits

Self-directed support is about improving outcomes for individuals. Such benefits are generally assessed in qualitative terms, rather than quantitative, and thus have not been monetarised. Self-directed support enhances the empowerment of individuals to gain equality of opportunity and sustain their citizenship. It contributes to improving health and well-being and tackling health inequality, and shares the common ambition of improving the quality of life and opportunities in life for people across Scotland. The costs discussed below should therefore be considered in the light of the qualitative benefits of self-directed support, which are further discussed in the Policy Memorandum which accompanies the Bill and is published on the Scottish Parliament website.

The benefits of each option are set out in Annex A.

• Costs

The cost of providing the social care itself is unlikely to be affected by the choice to direct your own support or not. That is, the effect on the cost per unit volume of social care of choosing a self-directed option should be broadly neutral. However, there may be short term implementation cost implications to local authorities arising from the transition to self-directed support and there may be some additional transactions or administrative costs to users and providers as a result of individuals choosing to arrange their own care. Whilst there is considerable qualitative evidence on this subject, there is a scarcity of quantitative evidence, particularly in relation to the macro-level, To try and address this, the Government commissioned the University of Stirling to produce a study on the costs and benefits of a shift to self-directed support in a Scottish context. However, it remains the case that many costs depend on individual choices, which are difficult to predict with any accuracy. Costs discussed are therefore best estimates, based on the available evidence. A more detailed exploration of the costs associated with the Bill is set out in the Financial Memorandum which accompanies the Bill and is published on the Scottish Parliament website.

The costs of each option are set out in Annex A.

Scottish Firms Impact Test

Throughout the Bill development process, Scottish Government officials have consulted and met directly with a range of organisations, businesses and users affected by the proposals, so as to better assess the costs and/or benefits to them and their businesses.

This Bill is only relevant to Scotland and therefore impacts will be on those involved with social care and support within Scotland. The Bill places duties onto local authorities in the first instance, and the initial impact is therefore on them and on supported people. However, there are consequential effects on other providers of social care and support. The Bill requires local authorities to give supported people choice and, if they want it, control over the support they receive. By doing so, it changes the balance of the relationship between local authority, care and support provider and supported person. It is expected that the Bill will support a move away from a 'wholesale' model of providing services, with the local authority as block purchaser, towards a 'retail' model of spot purchasing and contractual relationships between the user and supplier. This will require changes of culture and practice for all parties.

The care and support provider and the support, advice and information sectors in Scotland are diverse. They range from small, not for profit organisations to large multi-nationals. Some are early adopters of self-directed support and are already well set up to manage the shift; others are less prepared. A wide range of businesses responded to each of the consultations and shared their thoughts on the Bill and its impacts. However, a feature of these responses was a lack of quantitative evidence on the potential costs, benefits and impacts of the Bill. This has made it difficult to assess the precise costs, benefits and impacts on businesses.

During the second consultation and in order to complete this BRIA, officials held a face-to-face consultation with 6 businesses of various sizes and types and involved in various parts of the care and support sector to discuss the Bill and specifically the impacts on them.

A number of specific areas were identified by the group as areas that would impact on them, and discussed around the table. Quantitative evidence was not available to cost any of the impacts. Areas discussed were:

• Resourcing the shift. The provision of advice and support (as distinct from care and support) will become increasingly important if the self-directed support vision is to be achieved. It is likely that this cost will need to be found from within the existing budget for social care and support.
• Scale of impact. The scale of the impact on providers will depend on how many people opt for each option; the phasing of the Bill provisions; and the speed of roll out by local authorities. If there is a rush to Individual Service Funds across Scotland, this may have important impacts on providers in terms of staff contracts, procurement (including contracting with individuals), back office functions etc. There is also a larger cultural change in terms of personalising arranged services. Where providers are not used to involving service users, there will be challenges. Some of the impacts could be mitigated by phased roll out.
• Market for social care. The market is currently based on cost and volume. There is a challenge in considering how to shift this to outcomes.
• Culture in local authorities. In order to succeed, the Bill (and the Strategy) will require a comprehensive and thorough framework of training at various levels within councils and other organisations.
• Regulatory framework and care standards. How will this change the way that organisations are inspected by SCSWIS (now the Care Inspectorate)? i.e. moving away from assessing only the quality of care and support and towards inspecting the degree of choice and control available to the individual.

These areas of impact were similar to those identified by businesses in the consultation. All consultation responses are available on the Scottish Government website at http://www.scotland.gov.uk/Publications/2011/05/19110748/0.

• Competition Assessment

Self-directed support provides informed choice and control to individuals, enabling them to make decisions about the care and support they want. This includes decisions about who provides that care and support. This will increase the number of purchasers in the market for social care and should tend to lead to an increase in the number of producers. Therefore this Bill will not limit the number of suppliers or their ability or incentives to compete, either directly or indirectly. This conclusion has been reached after consulting guidance from the Office of Fair Trading⁹ . Answers to the 4 questions they pose are set out below.

Will the proposal directly limit the number or range of suppliers? No, the Bill has no provisions which would do this. On the contrary, it enables people to have more choice and control over the support that they receive and encourages suppliers to develop more flexible and personalised services. This presents an opportunity for new suppliers to emerge to meet developing demand for these services, alongside existing suppliers whose services will continue to be required by many people, potentially widening the market.

Will the proposal indirectly limit the number or range of suppliers? Research in England suggests that, whilst price is important, it is not the most important factor in choosing a social care service - the most important factors were found to be: staff knowing you personally and continuity of service (47%), being locally based (46%) and professional training of staff (42%). Flexibility of services came in at 26% and cheap price at 21%¹⁰ . We would therefore expect that an increase in number of purchasers, due to individuals opting to direct their own support, will lead to an increase in number of suppliers of support, particularly, as there are unlikely to be significant economies of scale in this type of service activity. Existing suppliers may feel that newcomers to the market have an advantage as they will not have to reconfigure existing services. However, Scottish Government projections of demand for self-directed support suggest that, whilst this will rise, it will be a gradual process over time and many supported people will choose to stay with their existing services. The Bill does not affect the costs of entering or exiting the market. Overall, the aim of self-directed support is to encourage a wide and flexible range of support options. Individuals will have choice and control, and will be looking for support that meets their needs. Where suppliers cannot provide a service that people are willing to pay for, they are unlikely to survive. However, the overall effect will be of widening the pool and therefore it is not expected that this will indirectly limit the number or range of suppliers.

Will the proposal limit the ability of suppliers to compete? No, the Bill will not do this. Self-directed support encourages innovation and creativity in social care and support, and encourages individuals to exercise choice and control, driving competition amongst suppliers.

Will the proposal reduce suppliers' incentives to compete vigorously? No, the Bill will not do this. Where an individual is not satisfied with the support they are receiving, greater choice and control mean that they can change that support (subject to relevant notice periods). This means suppliers will have an incentive to compete vigorously in order to gain new clients and retain their existing ones.

• Test run of business forms

There are no new business forms planned as a result of this legislation.

Legal Aid Impact Test

The Government assesses that the changes proposed in the consultation should not result in possible expenditure from the legal aid fund. The proposals should not have any implications for individuals' right to access to justice through legal aid. They should not have implications for civil and criminal legal aid as long as there is a clear and distinct audit trail for services and as long as payment out is not less than income in. For advice and assistance, consideration will need to be given to making specific exclusions by regulation. The Bill will not introduce any new court procedure nor any new right of appeal.

Enforcement, sanctions and monitoring

The Scottish Government will monitor compliance with the Bill through a number of existing or soon to be established measures. The Government is undertaking a review of the statistics collected on direct payments, with a view to amending the categories of information and to cover a wider range of self-directed support options. Implementation of the self-directed support strategy will be subject to ongoing monitoring and review through the activity of the national Self-directed Support Implementation Group. This includes Scottish Government officials, ADSW, COSLA, user-led organisations and provider-led organisations. In addition to the review of data collection, implementation will look to shift to measuring improved outcomes for people directing their support. This will be achieved through a number of routes including the Community Care Outcomes framework, the work of the Care inspectorate and specific evaluation of progress in co-production with citizens who require support.

Implementation and delivery plan

Subject to completing the Parliamentary process, the Bill is expected to become an Act in late 2012 and come into force in mid-late 2013. It is expected that commencement provisions will allow for local authorities to implement the provisions of the Act over a period of 3-5 years - the exact length is still to be negotiated. Preparation for implementation has already commenced, through the work of the National Strategy Implementation Group and it's subgroups, and this will continue and increase in intensity as commencement approaches.

• Post-implementation review

It is likely that a review of implementation will take place at the end of the implementation period: 2016 - 2018 (depending on the length of time allowed for implementation). This will allow the Government to ensure that all local authorities have implemented the provisions of the Act. The exact form of this review will be decided closer to the time, in order to ensure the most appropriate method is chosen.

Summary and recommendation

Option 2 is recommended for all categories. This ensures a Bill that:

• introduces a self-directed support framework to ensure informed choice and control;
• introduces a power for local authorities to offer support to carers;
• consolidates and modernises existing legislation; and
• makes amendments to the Community Care and Health (Scotland) Act 2002 to ensure that, whenever local authority social care duties are delegated to the NHS, duties under this Bill are delegated too.

This strikes a balance between the different views of stakeholders, and allows for a modern and flexible piece of legislation which will achieve the aim of making self-directed support available to all yet imposed on no-one.

Doing nothing, or the minimal option, would not meet the needs of policy makers, practitioners or stakeholders. Despite the very positive progress made by local authorities, practitioners and users under the current legal framework the default assumption for the vast majority of clients remains that of direct delivery, with comparatively little emphasis on the individual's role to shape their own care and support plan.

Taking the most radical options would please some stakeholders but would lead to significant issues in terms of speed and scale of transition, which would lead to greater costs for all parties.

By taking the middle options, the Government can mitigate some of these costs at the same time as making necessary changes, placing direct payments in their proper context and providing a comprehensive framework of choice.

• Summary costs and benefits table

Costs and benefits of each option are outlined at Annex A.

Declaration and publication

I have read the impact assessment and I am satisfied that (a) it represents a fair and reasonable view of the expected costs, benefits and impact of the policy, and (b) that the benefits justify the costs. I am satisfied that business impact has been assessed with the support of businesses in Scotland.