National Care Service (NCS) Scotland Bill pre-Stage 2 consultation response from SASW

A response to proposed amendments from the Scottish Government, carried out by the Scottish Parliament Health, Social Care and Sport Committee.

1. What is your view of the proposed National Care Service strategy (see proposed new sections 1A to 1E)?

Tend to oppose

Whilst the NCS Board is expected to work under the principle of shared accountability, the Bill gives the Minister sole responsibility for the strategy. This seems unnecessary given existing powers to direct and fund community services. Any strategy must be resourced and, although the Principles in the Bill reference seeming opposing desires (investment and stability), the resourcing of this strategy should be planned, committed and clearly referenced at 1D. 

The strategy must consider the broad range of needs that the NCS intends to address rather than delayed discharge which has resulted in conflict between medical readiness, and complex social care planning requiring resources in the community. This has left social workers delivering to NHS rather than community priorities, exacerbated by diminished resources for social care in local authorities in over a decade of austerity. The system is now scrambling to manage a failure to invest in early help to prevent hospital admissions. SASW expected that the Bill would provide that opportunity to commit the resources recommended by IRASC to long term and preventative community initiatives. However neither the Bill principles as outlined nor the sections on the development and review of the strategy provide a foundation for delivering the social work and social care resource that is central to preventative early help and effective discharge planning. 

The impact of Ministerial responsibility for the strategy most significantly affects local authorities who have a wide range of responsibilities and duties to local electorates. The NCS Board may become an arena in which the tensions between national and local government are played out - either positively in exposing inconsistency, unhelpful differences in resource priorities and finding solutions or in way that magnifies blame culture. Therefore a clear process for dispute resolution for shared accountability should be incorporated into the Bill. 

The five-year lifespan for the strategy seems a reasonable timescale. We would expect this to positively affect local government planning, the year-on-year commissioning that we know adversely affects care providers and deliver a reduction in short term funding to address long term problems.

The Bill should additionally commit the Government to engage unions, professional bodies and representative groups in any review of the principles or development of the strategy. In particular, the National Social Work Agency should be included as a statutory consultee to reflect the central role of social work professionals in the operation of social care in Scotland.

Finally, we recommend that the Scottish Government abandon the ‘do more with less’ strategy when what is urgently needed is investment in social work and social care services and the consolidation and simplification of the plethora of legislation, standards and guidance that social workers work within. 

2. What is your view of the proposal to create a National Care Service Board, and the provisions about the role and functions of the Board (see in particular new Chapter 1B of Part 1, and new schedule 2C)

Tend to oppose

The section on the Board’s general purpose provides significant new ministerial powers to direct strategy for local care services within the NCS. This brings risks of a conflict with local democracy within local authorities who will still hold the statutory duties for local welfare and will continue to employ the social work workforce 

Our members told us that parliamentary accountability for the NCS, the National Care Service Board and the National Social Work Agency is essential if this Bill progresses. However, they are mindful that centralised decisions (and assumptions) have unintended impacts on local resources and the flexibility to resolve local issues.  Therefore, if the Bill were to progress, we would seek assurances of greater parliamentary and democratic scrutiny of the NCS over executive ministerial control. 

We recommend that the Bill include a provision for Local Care Boards to record their dissent with Ministerial directions with Parliament. This would provide an important safeguard for local democracy and services which are at risk of meeting Scottish Ministers’ political objectives over local needs.

We welcome in principle the provisions for representation of lived experience of providing unpaid and paid care and receiving care on the national and local boards. However, we need to see more detail about how that representation will work with a constituency to present more than an individual perspective. Individual experience provides specific detail, but without qualitative analysis of a range of experiences, we cannot get to the root causes of systemic problems or begin to reconcile and negotiate competing views and experiences.

We are unable to support any representation proposals that are not underpinned by democratic structures that garner views across lived experiences. An essential and full picture requires the representation of frontline social work alongside the very different social care experience

3. What is your view of the proposal to establish National Care Service local boards and to remove other integration models (see in particular Chapter 1A of Part 1, and new schedules 2A and 2B)? 

Partly Support and Partly Oppose 

National Service Local Care Boards

The renaming of Integration Authorities as Local Care Boards is inconsequential. Structure can be important in the delivery of public services, but this change will not deliver any meaningful impact on the work social workers do alongside people who need support. It will not lead to a re-calibration of social services towards early help and prevention.  It will not deliver a care service on a par with the NHS (IRASC recommendation 16) which we believe is the only way to address the overwhelming and rising demand for service.

A single model of integration

Our members’ experiences of integration is that in the integrated environment, the holistic social model has been reduced to the task and time functions of care management and statutory intervention whilst bringing some positive, closer relationships with health and education colleagues. The differing models of integration are confusing for professionals and the people we support. We therefore welcome the proposed single model: effectively the health and social care partnership model. This is a minor simplification to governance arrangements in Scotland for health, social work, and social care. However, this alone will not deliver improvements to service eligibility, access to support, or the availability of resource that our members expected. In Highland our members have concerns about the potential impact on pay and conditions if they are moved from the NHS back to the local authority. There will be implications for both Highland NHS and local authority budget streams and human resources in this case.

The proposal to leave the existing schemes of delegation as they currently are, is difficult to understand. An NCS that includes some services in one area and not on another is not ‘national’ and runs contrary to our common aim to make the system easier to understand for those who receive services and provide them. It maintains a fundamental barrier for people supported by our members because care packages will not be transferable across local authority boundaries and will maintain an unacceptable variability as a result of local reassessment. This lack of inter-authority compatibility makes it difficult for people receiving support to understand who is responsible for their service and, consequently, who is responsible for resolving complaints.

Given the nature of the changes that the Independent Review and the original NCS Bill envisaged, this is a lost opportunity to review the landscape of national and local governance for the NHS and local authorities, contingency of boundaries, and the volume of bodies. 
 

4. What is your view of the proposed new provisions on monitoring and improvement (see new sections 12K and 12L) and on commissioning (see new section 12M)?

Tend to oppose

Monitoring and Improvement

Social workers already have a significant amount of legislation, guidance and standards that guide our work. In our view, there is not enough detail in the Bill or the policy memorandum to determine whether the proposed system will reduce or increase the already excessive reporting burden on social workers. Our members have also questioned how improvement will be facilitated without additional funding. It is SASW’s view that we are being asked to comment on a future, undetermined, framework without the detail of the resources needed, to make an informed decision about whether we can support it.

The Support and Improvement Framework must provide transparency about service performance to the people of Scotland, and it must have enforcement powers . However, local services are already subject to local quality assurance, national scrutiny and regulation. Any additional external improvement mechanisms must demonstrate qualitative improvement for people receiving services with a proportionate scrutiny.

There is a risk that a national framework delivered by a national board will be used to shame services and authorities that continue to provide the best possible services with resources that have reduced dramatically under austerity. This will negatively impact on social worker morale, with consequences affecting recruitment, and retention, which continues to be at an all-time low. 

The main power of enforcement seems to be that the Support and Improvement Framework provides powers to transfer responsibility for one local care board to another. This presents the conundrum of transferring the statutory responsibility for social welfare services under the 1968 Act from one to another local authority. We cannot see how these duties can be neatly transferred so that a different authority takes over the duties and powers of another. We believe this risks undermining local democratic accountability and perpetuates the narrative that poor local governance is at the centre of the problems facing struggling services. 

Commissioning

Partly Support Partly Oppose

SASW would like to see the principles of Fairwork (effective voice, opportunity, security, fulfilment, and respect) enshrined in section 12M. We believe this is essential to ensure the rights of workers are upheld. 

Whilst not in the Bill or Policy Memo, there is clearly a case for national commissioning for some specialist services as recommended in the Independent Review. This does not need legislation to be enabled but does need to be resourced to deliver a consistent approach to support. 

5. What is your view of the proposed new provisions to designate a National Chief Social Work Adviser and for the creation of a National Social Work Agency (see new section 26A)?

Tend to support

SASW welcomes the designation in statute of the CSWA and the creation of a NSWA. Social work practice currently evolves across the 32 local authorities, the employers of most of Scotland’s social workers, who hold the statutory duties and powers used by them. Social workers need a national support structure that ensures they can be autonomous, accountable professionals and to respond to the often rapidly changing social circumstances of individuals and communities.

Our members view the NSWA as the only hope for a social work profession that has been divided and eroded over the last 25 years. Social work needs the NSWA to have a robust response to the workforce crisis. It needs a national framework that ensures an equivalence of experience for people across Scotland, and which respects professional autonomy and decision making. A new vision of the role of social work in our society is one that makes it easier for people to get the help they need, in the communities they live in, to live full and included lives with confidence in the system. This is what will make a difference to the way people achieve the support they need. 

The CSWA and the NSWA will need to have powers and influence comparable to similar entities representing NHS professions in Government. Equality of professional standing and power is central to redefining the professional social work identity and the respect due to complex practice of social work. The purpose and functions of the NSWA should be included on the face of the Bill.

The NSWA as a Ministerial Agency is not required to have a governing board but is likely to have a Stakeholder Advisory Group.  There is a risk that without a strong and independent external governance focus, the Agency risks the legitimacy of its decisions and actions being undermined in the eyes of social workers.

We were involved in the exploration of a hybrid model that combined Scottish Government departmental influence and a partnership with Social Work Scotland and COSLA. The envisagement of an Agency, devised through partnership, is one that that has the potential to resolve the knotty issues across national and local government as the holders of the statutory duties and powers and the main employers of social workers. A palpable challenge to the effectiveness of the NSWA will be the response of social work employers within the shared accountability environment to the needs of the profession. 

This Bill’s version of a NSWA sets the Office of the Chief Social Work Adviser on more solid foundations and this is welcomed as a small step forward. However, our members are concerned about having enough separation from Government to be an effective independent voice for the profession. Putting the functions of the agency in legislation, and its relationship to the NCSB, is vital to ensuring it can perform the tasks it will be set.  

6. What is your view of the proposed amendments to the Public Bodies (Joint Working) (Scotland) Act 2014, as set out in the marked-up version of the Act?

Tend to oppose

A name change does not present a substantive difference in the delivery of local integrated health and social services. While we support a single model of integration but would also like to see a single scheme of delegation. SASW expected practical changes that would substantively improve the funding and delivery of services. We remain to be convinced that these proposals will deliver those improvements

7. What is your view of the Scottish Government’s proposed approach to addressing the areas of further work outlined in the Minister’s covering letter?

From the Minister’s letter of 24 June 2024 to the Health, Social Care and Sport Committee

Direct Funding

“The Scottish Government has been clear on our intention to introduce legislation which would give Scottish Ministers the power to directly fund reformed integration authorities for specific purposes, such as regional and national commissioning of specialist services. Within the current system, the budget for integration authorities is determined by the local authorities and health boards in accordance with the method for determining payments set out in the local integration scheme. This leads to variance across the country in terms of how services in the system are funded and, can lead to delays in getting funding to the frontline, as well as make it difficult to fully gauge the true nature of funding available for key priorities on a national scale. 

Notwithstanding the above, health and social care funding is a complex area, and we want to make sure that any changes brought forward are fully understood and do not to create unintended consequences for the existing funding model. We will therefore continue to work closely with statutory partners and finance experts to ensure any amendments we do take forward at Stage 2 lead to the intended outcomes. To inform this work, we have brought together representation from across local government, health boards and health and social care partnership to work through the detail of the proposals. “

Children’s services

“Existing legislation allows flexibility as to which children’s services are delegated into integration authorities. Some are operating with full delegated powers, whereas some include no children’s services at all. 

Following the establishment of the NCS, areas where children’s services have been delegated would be in scope of the NCS, while those areas that have not done so would not. Under the current arrangements, making no additional provision in respect of children’s services in the NCS Bill would result in children’s services in many areas of the country being within scope of the NCS, and others being out. 

This means that different areas would be subject to different arrangements and requirements in a number of different respects including, for example, strategic planning, reporting, access to support and improvement framework, or the approach to commissioning and procurement. 

I believe that this would introduce further unnecessary complexity and duplication to a system which is already cluttered and confusing, risking creation of additional barriers. 

For this reason, my preference continues to be, as set out in the Stage 1 debate, inclusion of children’s services, including children’s community health services, in the scope of the NCS in all parts of Scotland. Achieving this ambition requires progressive move towards consistent delegation of services across the country. 

I believe the most responsible way to do this is through an amendment to the NCS Bill to provide Scottish Ministers with a power to make regulation to ensure that certain children’s services are delegated to integration authorities in all parts of the country. 

However, how and when this power might be exercised requires additional consideration. I want to make sure that this reform is delivered in a way which takes account of local needs and circumstances, is understood by children and their families and benefits the workforce who support them. I want any changes to children’s services to build on existing good practice, preserve vital links across children’s services, develop links between children and adult services, and further support, rather than distract from, work to drive improvement. Opportunities also remain to ensure that the final decision on children’s community health services aligns with the inclusion of local authority children’s services. 

In addition, The Promise Scotland have now published their implementation plan for 2024- 30. This is why I want to take additional time over the summer to consider how changes to children’s services could be best aligned with The Promise timescales. 

I intend to provide further updates ahead of the deadline for formally lodging our final Stage 2 amendments. However, I wanted to outline my intention here as this may be helpful for the Committee to indicate this to stakeholders when the Committee issues its call for views on the Stage 2 package. 

Justice social work

With respect to justice social work services, the Scottish Government preference is for the consistent inclusion of such services within the NCS at both a national and local level. The Scottish Government wants to:

• Make sure that the range and quality of justice social work services available across Scotland is consistent while being suitable for local needs 

• Support the delivery of justice social work services by strengthening integration and collaborative planning 

• Support oversight at a national and local level along with other areas of social work, social care, and community health 

This approach reflects that people in the justice system are often involved with more than one social work or care service. Including justice social work in the National Care Service would therefore: 

• Ensure that justice social work is aligned with the other areas of social work 

• Ensure the National Care Service Board is responsible for all justice social work services across Scotland 

• Promote a joined-up approach for justice social work with other areas of social work, care, and community health

Policy development on the inclusion of justice social work is ongoing. So as not to pre-empt the outcome of those discussions, no proposed amendments relating to justice social work are included in this pack. 

However, I wanted to outline my intention here as this may be helpful for the Committee to indicate this to stakeholders when the Committee issues its call for views on the Stage 2 package.” 

Anne’s Law

With respect to Anne’s Law, the Scottish Government remains committed to delivering Anne’s Law within the NCS bill. This position was reaffirmed at the ELAG meeting on Anne’s Law on 30 May.

We acknowledge the suggestions from Parliament that Anne’s Law could be delivered in a different way, we will work over the summer to determine whether any alternative route will deliver Anne’s Law in keeping with the policy aim and more quickly. 

Direct funding

Tend to support 

Our members are keen to see improvements in access to specialist services. A national approach might be able to deliver such resources by taking cognisance of the need across Scotland rather than being focussed on each local authority. However, we believe this could be addressed by enhancing current funding arrangements and working across local authority and health board boundaries. 

It is unclear from the Government documents which services are likely to be in scope under the direct funding arrangement. We presume that moving the responsibility for commissioning and procuring these services from local authorities will impact on local authority budgets. This can already be addressed by creating partnership agreements to deliver these services across council boundaries. 

There is a risk that direct funding could be used as a lever to remove budget, duties and powers from local government, delivering national consistency to the detriment of services designed to meet local needs. We recognise that this is a delicate but important balance. How this power is realised has the potential to negatively contribute to workforce morale, recruitment, and retention. 

We are content to support the Minister’s intention to explore this further. However, we would want to see far more detail in this proposal, especially about the intentions around funding. 

Inclusion of justice and children’s services

Oppose

Justice and children’s services should be included in any National Care Service as part of this Bill, if it proceeds. SASW members have consistently stated the need for social work to be together to be effective. Adult support is at the heart of not only services for adults but for people in the justice system and for parents in families that are struggling. We know that some families have multiple social workers and that transitions across services bring different expectations, eligibility and discontinuity. We know that the loss of professional relationships that have protected and nourished people up to that transition point has consequences . People do not fall neatly into predesigned service boxes. The NCS must recognise this. 

The variation in integration schemes has delivered a system that is difficult to negotiate and understand. People still talk about going to the social work department, even when it no longer exists, because they know that support and protection  is delivered through social workers. Keeping social work together is the only way to make services accessible, simpler and encourage a joined-up holistic approach to delivering support.            

The Government must commit to removing barriers if it truly wishes to deliver on UNCRC, UNCRPD, The Promise, the Vision for Justice 22-26 and to deliver a coherent National Care Service. Access to support has become more difficult, with eligibility criteria effectively removing opportunity for early support. 

We support the apparent desire to include these services but categorically reject the proposal to tackle it at a later date. The function and continuity of the NCS rests on all services of social work in all parts of the country being included. Cementing the fragmentation of social work now would undermine efforts to bring services together as intended in the future.  

SASW’s view is that a National Care Service in which some services are in one area and not in another, does not meet our test of making services easier to understand or access. (2765 chrs)

Anne's Law

Tend to support

SASW supports the Minister’s proposal to explore alternative routes to delivery of the outcome of the recognition of the rights of people in care homes. 

SASW absolutely supports the rights of people to their family life and the relationships they need to thrive. Enabling and supporting these rights and negotiating them when there are conflicts is a key part of the social work role. During the pandemic, the rights for people in care homes - their homes - were trampled on and overridden without any thoughtful balancing of the right to be healthy and the right to relationships. The way in which decisions around care homes were made at that time was completely health-, deficit- and risk led. It made the balancing of human rights (the centre of the social work profession’s role) of secondary importance. This is evidence for our argument that social work must be represented alongside health at the highest levels of government. 

People already have the rights that they need and SASW supports any policy programme to ensure these are embedded in public service delivery and decision making with appropriate involvement of the rights protecting social work profession. We do not believe that additional legislation is required so we support the exploration of alternative routes to delivery of the outcome of the recognition of the rights of people in care homes. (4353)

8. What is your view of the initial draft of the National Care Service Charter?

Oppose

The Charter does not provide or promote new rights for people who need support, or duties on employers. It will simply be a document that collates existing rights. We do not believe that this adds value, or that legislation is necessary to deliver this outcome. More importantly we are unable to find evidence that the charter approach in the NHS improved access to or resolution of complaints, either by people using the service or by employees. 

We are also conscious that social work interventions are not as clear cut as those in the NHS. Social workers balance conditional rights every day, which may mean depriving a person of liberty to protect the person and the rights of other people. This is a fundamental public protection role of social work where the opposing right to not have a service, which applies in all areas of health except mental health, often cannot be supported. It is also not clear to our members how that charter can be meaningful on a national level in the NCS environment proposed, where some social work services will be included and some not.

The Government should note that encountering power is a disempowering experience for most of us. A commitment to independent advocacy and the provision of better services to help people understand their entitlements is a simpler way to improve the citizen journey and experience. 

If the Bill progresses, we would support a national and simplified complaints process for all services within the NCS. The Charter implies that complaints will always have a clean resolution. In services where there is a simple assessment, identification of a physical problem and the application of a solution through clearly defined tasks, that may be the case. Social work, in contrast, attempts to address complex human behaviour that is causing a problem for the person, their family or their community. In this case social work decisions are complex. For example, a complaint about a funding package for services is conditional on the availability of resources and the needs of others who may be assessed to have a priority.

We urge the Scottish Government to instead support increased investment, which we know will make a difference to people’s lives. (2135)
 

9. Do you have any other comments on the Scottish Government’s proposed draft Stage 2 amendments to the National Care Service Bill?

It is not clear how the NCS Bill as it is proposed will have a practical impact on the existential threat to chronically underfunded social work services. This is a result of the Bill’s reliance on regulations and SSIs post legislation to provide detail to the framework. SASW needs to be able to explore much more of the detail about the intended working of the NCS, NSWA, the powers of the CSWA and the relationship to the NCSB. Without that detail we cannot endorse the NCS Bill as a solution.

The Government needs to be aware of the continued conflation of social care with social work. In its current form the distinction between these two complementary parts of the care system is not expressed well in the Bill and as such is generating anxiety amongst social workers that the Government does not understand the profession. We believe that the Government needs to act urgently to reassure the profession.

Our members who are academic social workers have expressed alarm about the increasing involvement of NHS systems in the ongoing training and continuous professional learning of social workers. They have told us, forcefully, that this represents a reach into social work assets, reinforces a deficits model over strengths-based practice and risks undermining the integrity of our relationship-based profession.

It is our view that the Bill in its current form does not address the recommendations of IRASC sufficiently. That the Feeley review did not address social work has meant social work is seen as an afterthought in the legislation rather than as the central decision maker and resource allocator that it is.  Social work holds the professional role and accountability for assessment, care management and supporting people at a point of crisis and when faced with challenging life decisions. The role of social work in identifying unmet need, in developing creative solutions tailored for individuals, in commissioning services designed to uphold and advance peoples’ rights, has not been recognised. Social work is central to thriving and developing communities, but this cannot be seen in this Bill.

We are particularly worried about the Government’s plans for the composition of the National and Local Care Boards. We believe that representation of frontline social worker experience on the local and national care boards is essential. Social work representatives on integration authorities are there to represent their employers, not the profession. To be effective, both social care frontline experience and that of social work should be represented on these key strategic and delivery mechanisms to ensure that the best possible serviced is delivered. Frontline social workers cannot represent their social care colleagues, and vice versa. 

We recommend that the Scottish Government drops this Bill and focuses on the workstreams and additional investment that will have the greatest impact in improving social services: 

  1. implementation of fair work and ethical commissioning to sustain and grow our social care workforce,
  2. proper implementation of self-directed support to enable real choice and control; and,
  3. complete overhaul of eligibility criteria and resourcing to ensure people and their carers get the help they need when they need it: and,
  4. delivering on the basics of reducing poverty and addressing the housing crisis as this will help to reduce the demand on public services.