National Care Service (Scotland) Bill

Nick Kempe - 23 June 2022

On Tuesday the Scottish Government published the National Care Service (Scotland) Bill accompanied by an explanatory note, policy memorandum and financial memorandum.   Common Weal’s Care Reform Group will produce a detailed critique in due course but it is clear from even a preliminary reading that this bill will not deliver the vision of National Care Service (NCS) for Scotland we set out in Caring for All.

Aims and principles

Instead of setting out the aims of a NCS, for example to provide care to all who need it, the bill starts with a section headed “Principles”.  The eight sub-clauses, starting with “the services provided by the National Care Service are to be regarded as an investment in society”, are not principles but rather a motley set of unsubstantiated assertions, prescriptions and exhortations: 

• “for them to be such an investment, the services provided by the National Care
  Service must be financially stable” (an unsubstantiated assertion and one which puts resources before needs);
• “the National Care Service, and those providing services on its behalf, are to communicate with people in an inclusive way” (a vague prescription far weaker rather than a right to be treated equally);
• “the National Care Service is to be an exemplar in its approach to fair work for
  the people who work for it and on its behalf, ensuring that they are recognised
  and valued for the critically important work that they do” (a mere exhortation when it comes to the profit making private sector operating out of tax havens).

There is nothing in the bill to state that care should be not for profit.  The “principles” section doesn’t even include a statement that care should be free at the point of use, even though the Scottish Government has committed to abolish care charges.  

This lack of vision is, however, consistent with the policy memorandum which states that “The purpose of the National Care Service (Scotland) Bill is to improve the quality and consistency of social services in Scotland”. Better quality and more consistent services will be little consolation to most people if the vast majority of their care needs remain unmet and services remain as difficult to access as at present.

A care service subsumed to health

While it nowhere says so in the policy documents or the bill, what the Scottish Government is proposing is not a NCS but a new community health service which incorporates care.  That is shown by the budget projections which in 2026-27, for example, show the new service will spend £8,940m on health compared to £7,127 on care.  It helps explain why the word care does not appear once in the principles section: the prescriptions and exhortations are designed to apply as much to health as they do to care, though these are very different things as we explained in caring for all.

The new care boards, which will take over care from local authorities, are therefore a misnomer.  This is probably to helps disguise the fact that the bill represents a takeover of care services by NHS mandarins and their advisers in Price Waterhouse Cooper and KPMG.  As an illustration of this, while the bill enables local authority staff to be transferred to the care boards, clause 31 (2) specifically excludes health staff being transferred from health boards.  

Before community health staff rejoice too much, however, they should consider whether all the other provisions of the bill which do apply to them will make their jobs better.

In response to the widespread concerns expressed during the NCS consultation about Children’s and Justice Services being subsumed to health, the bill requires Scottish ministers to consult further before transferring these services.  The policy memorandum, however, makes it quite clear that while this may delay the transfer, the Scottish Government’s firm intention is also to “integrate” these services into health.

The impact on democracy

The main provisions of the bill give effect to a massive power grab by Scottish ministers.  Local democratic control over care services is to be removed and handed to new care boards under the aegis of the Scottish Government.  Scottish ministers will have the power to determine what services are provided nationally and what through care boards, the number and boundaries of these boards and to appoint all their members in a centralised system of patronage and control.  

This centralised power will be reinforced by ministerial directions – orders from the Scottish Government telling care boards what they should do – and, if any board member is then brave enough to challenge this, ministers will have new powers to remove those they believe are not performing as directed.  

The seriousness of this attack on democracy cannot be overstated.

The justification given for this power grab is Scottish ministers wish to improve the quality and consistency of services.  The improvement myth, that public services can keep doing more with less, is half-heartedly repeated in the principles: “opportunities are to be sought to continuously improve the services”.  The policy memorandum uses the words "consistent" and "consistency" no less than 51 times.  

What this ignores is that the main determinants of quality and consistency – the postcode lottery in common parlance – is the availability of resources.  And it is central government that has been responsible for most of this “problem” by forcing local authorities to make very difficult decisions about how to allocate grossly inadequate budgets. 

Transferring power from 32 local authorities to 32 or fewer unelected care boards, all of which the bill reveals are to be separate legal entities like local authorities, will in itself do nothing to address these issues.  Without fair funding, how will they be any more consistent? Why the Scottish Government would want to create care boards when, as the financial memorandum reveals, they have not even established if they will be able to reclaim VAT, like local authorities, is unclear.   The creation of separate legal entities, however, does provide protection for Scottish Ministers: instead of assuming responsibility for care, as they claim, they will hide behind a shield provided by care boards.

An under-resourced care service  

Common Weal believes care provision should be centrally funded, to ensure it is properly resourced, but locally controlled. Instead of setting out arrangements to ensure care is fully funded the main financial provision in the bill states “The Scottish ministers may provide any financial assistance to care boards that they consider appropriate”.  This leaves the funding of care remains at the total discretion of Scottish ministers without any public accountability.

While both Scottish ministers and care boards will have a legal duty to produce strategic (health and care) plans for the services they do provide, the bill’s provisions for this contain no requirements to assess the care needs of the population as a whole. 

The policy memorandum explains that the Scottish Government has still to look at costs and that this is a different matter to creating an NCS.  The result of this will be that instead of being driven by need, care provision in Scotland will be determined by what resources Scottish ministers judge should be available.  Why ministers will make any more money available to care boards, when they have starved local authorities of funds and underfunded the NHS, is not clear.

Rights without responsibilities

Section 11 of the bill provides for an NCS charter the purpose of which is to set out “the rights and responsibilities in relation to the National Care Service” of various individuals.  The charter creates no new rights for those individuals and there is no concomitant responsibility on either care boards or Scottish ministers in respect to those rights. Rights without responsibilities are unenforceable as people found to their cost in the covid crisis.

For all the talk of rights, the bill creates just two new rights and those are both in response to public campaigns.  The first gives those carers who have a support plan and have an identified need for respite, some strengthened rights to services.  The financial memorandum shows that the Scottish Government expects relatively few carers, even those who provide over 50 hours a week, to get much relief from caring and the main purpose of the right is help keep carers going and reduce the cost to the state.  The second, a so-called right for relatives to visit care homes, gives Scottish ministers powers to issue directions to care homes to allow visits.  The provision, however, provides no right or means of redress to relatives should they still face obstacles to visiting.  This is Humza Yousaf’s law, not Anne’s Law.

The key issue in respect of rights is that without addressing responsibilities and resources, they are effectively meaningless. The NCS Bill, if enacted, will centralise power away from the people who need or work in services and this is likely to make it even more difficult for people to get redress if their “rights” are ignored.  A “commitment co-design” services is not the same as giving individuals and communities control over those services or the right to decide what is provided.  If the bill goes ahead that power would lie entirely in the hands of Scottish ministers. 

Why anyone should trust Scottish ministers when they drove the discharge of people infected with Covid into care homes is unclear.  We need more checks and balances, not less. For all the faults of local authorities, ordinary people have far more chance of influencing their local councillor, who risks being chucked out if they don’t respond to local opinion, than Scottish ministers shielded behind a phalanx of civil servants and unelected care boards.

Profit and the workforce

The prescription in the bill that the NCS should be “an exemplar of Fair Work practices” is not the same thing as setting up a system of national pay rates and terms and conditions, which are negotiated with trade unions, such as applies in the NHS. 

The policy memorandum states that while the application of the Scottish Living Wage to care provision “has resulted in the highest minimum hourly rates across the UK, it is not an efficient way to raise pay, and does not address the issues of poor or inconsistent terms and conditions. The Scottish Ministers will continue to consider how they can improve these issues within devolved powers”.    There is no mention of the underlying problem, the profit extracting private sector – which exploits both users of services and those working in it.

An answer of how to deal with privatised care services is contained in one of the few radical clauses in the bill.  Section 41 amends procurement regulations to allow care contracts to be reserved to certain types of organisations, including those that are not for profit.  This means that if the Scottish Government wished, it has the legal power to create an NCS in which profit would have no place and where national pay and conditions, negotiated with the trade unions, would apply.

Rather than improve the position of the workforce, however, the bill contains several provisions which could make it worse.  The costs of transferring local authority staff to care boards, as set out in the financial memorandum, “have been baselined against current assumptions on Fair Work”.  If applied, that could result in a pay cut for most care staff still employed by local authorities.  The bill also allows care boards to contract with local authorities for services, rather than taking them over. Given inadequate budgets, care boards it is predictable will be forced either ask local authorities to cut their costs, i.e. wages, or look elsewhere.  The result will be that the terms and conditions of staff in the public sector will deteriorate just as they have done in the voluntary sector.

There are two further illustrations of the absence of principle on the part of government  when it comes to workforce and profit.  The first is the bill requires Scottish Ministers and care boards to develop ethical commissioning services in relation to the services they provide.  This is defined (section 10 of the bill) as “References in this Chapter to a person’s ethical commissioning strategy in relation to a service is to the person’s strategy for ensuring that the person’s arrangements for providing the service best reflect the National Care Service principles.”.  Complete gobbledegook! 

The second is encapsulated by the provisions in the bill for training.  Section 24 states that Ministers “may provide training”.  It should have been “must”.  Without a comprehensive training programme for all staff, there will be no improvement.  

Where next?

A lot should be said about the failings of the National Care Service bill. The one positive is it appears that nothing is going to happen quickly. That means that all those with an interest in care and care provision have time to consider it critically and to get organised to campaign for the care service Scotland deserves.  

The Common Weal Care Reform Group is committed to play our part in that, with our first step being the publication of a more detailed critique of the Scottish Government’s proposals.  Meantime, if you have not read it, please read Caring for All which shows there is an alternative.