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The impact of the COVID-19 pandemic on equalities and human rights
JOINT SUBMISSION FROM SOCIAL WORK SCOTLAND AND SCOTTISH ASSOCIATION OF SOCIAL WORK TO THE SCOTTISH PARLIAMENT’S EQUALITIES AND HUMAN RIGHTS COMMITTEE INQUIRY
13th January 2021
Social Work Scotland is the professional body for social work leaders in Scotland. The Scottish Association of Social Work (SASW) is part of the British Association of Social Workers, an independent membership body for social workers across the UK. Both organisations work closely with partners to shape policy and practice and improve the quality and experience of social services. We are responding to this inquiry together, bringing together the views of frontline social workers and managers who are employed in the public, private and voluntary sectors, as well as those operating as independent practitioners. Our joint membership is diverse, and being located across all parts of Scotland, experiences throughout the pandemic have been highly variable, in line with the differences decisions and approaches taken by local areas. We profile in this submission here the common themes to emerge from their feedback over the past ten months.
QUESTION 1: HOW HAVE GROUPS OF PEOPLE BEEN AFFECTED BY THE VIRUS?
In assessing COVID-19’s impact on equalities and human rights it is helpful to distinguish between the effects related to (a) the virus and disease itself, and (b) the actions taken by public authorities to contain the spread of the virus and protect vulnerable groups, access to emergency services, etc. Social workers have been involved throughout the pandemic in mitigating the impacts seen in both domains (albeit the majority of our activity has focused on the issues created by state efforts to contain the virus, which have affected every member of society in some way).
(A) Impact of the disease
As has now been well documented, the disease COVID-19 does discriminate. It has, to date at least, disproportionately affected older people, those with underlying health conditions, members of our Black, Asian, and other Minority Ethnic communities, and people with low incomes or precarious employment (e.g., zero-hour contracts). The reasons for this prejudice are various, including, in these groups, higher than average numbers of people living together under the same roof (be it a care home or family home), exposure to the virus through public facing roles (e.g., public transport workers, nurses and healthcare assistants, etc.) and above average rates of pre-existing co-morbidities (e.g., diabetes, obesity, hypertension). These factors coalesce together into an increased risk of catching the virus, and then an increased risk of the virus manifesting a serious or fatal response.
The impact of these increased risks has manifested in many ways, with individuals and families affected by some or all of the following:
Stress and anxiety
Loss of income
Loneliness (reduced human contact and self-isolation)
Recovered but with “long covid”
Time in hospital
Decline in mental health
This is not an exhaustive list, but it illustrates that, for those who have caught the virus the potential impact on their human rights cannot be more serious, with loss of mental and physical health, work, and even life. And with the knowledge that the COVID-19 virus does not affect all groups in society equally, but that all groups are interconnected, it is understandable that governments around the world have taken such drastic all-of-society action in their efforts to contain it.
(B) Efforts to contain the virus
The public health measures introduced to slow the spread of the virus only have historical comparators in wartime. Every aspect of life and every individual, family and community has been affected. The scale and severity of restrictions (on the economy, social contact, movement, etc.) has meant that the virus, directly or indirectly, has impacted the rights and wellbeing or every person in the UK. But as with the discriminate impact of the virus, affecting some groups more than others, the impact of efforts to contain it have not fallen evenly on society. As social work practitioners and managers we have had a front-line perspective on this throughout the pandemic; particularly in respect to people who are vulnerable or need additional support, for whom we provide or coordinate services. This includes children, families, parents, carers, adults with disabilities, older people and people involved in the criminal justice system.
Among the many impacts of restrictions over the past year, of particularly note in respect of this inquiry are:
Increased levels of poverty
Digital poverty / inequality
Disruption to referral routes for social work and social care
Disruption to social work, social care and community services
Increased isolation and loneliness, impacting on mental health and wellbeing
Increased pressure within families
As with the impacts of the virus itself, this list is far from exhaustive. What we have tried to illustrate is that the restrictions imposed have surfaced the significant inequalities which existed in society before the pandemic. And, moreover, that the fulfilment of people’s human rights relies on a broad base of civic and public services being accessible. This is particularly true for people and families with fewer socio-economic advantages. Remove the scaffolding from around individuals and communities, and the structure is less resilient to major external and internal stresses.
QUESTION 2: WHICH GROUPS HAVE BEEN DISPROPORTIONATELY AFFECTED BY THE VIRUS AND THE RESPONSE TO IT?
Children, as a cohort, have been particularly affected because of the disruption to education (from early learning and childcare through all stages of school) and the dramatic reduction in opportunities for play, peer and extended family interaction, creativity, learning, travel, etc. These opportunities, complementing formal learning, shape the adults we become. The absence of school and other child/youth activities has also significantly reduced the chance to identify issues early and offer help. That is particularly problematic for young people’s mental and physical health. The long-term legacy of these COVID-19 months is yet to be seen, but it is children and young people whose lives will be most shaped by it. The world of employment will be changed (possibly with fewer of the sort of jobs young people begin with), and public debt built up to underwrite the government’s response will shape public and political debate for decades to come. At an individual level, disruption to schooling and issues with mental health may determine many future choices.
Within the cohort of ‘all children’, specific groups have been affected more than others. For example, those affected by domestic abuse. Levels of domestic abuse in Scotland have been a persistent concern for social work, charities and policy makers for many years, but on the basis of calls to third sector helplines, the pandemic has led to increased prevalence. This is consistent with what we know about domestic abuse, and its relationship to wider stressors within the family. With services reduced or closed, and people encouraged to isolate as much as possible, we have reduced our collective ability to spot and respond to cases at the early stages. This has limited our capacity to protect the rights of children (and others impacted by abuse within the household). Our experience suggests that much greater support is needed for non-abusing parents and children, and that we must engage much more effectively and assiduously with perpetrators. Many local authorities and organisations were building these strengths-based approach (such as the internationally recognised Safe and Together™) at the start of the pandemic, but unfortunately work in some areas has had to be delayed to accommodate other priorities.
The true extent of child sexual abuse and child criminal exploitation through the pandemic has been hard to gauge, but we expect it to have increased. Third sector colleagues and the police draw attention to the significance of interaction between technology-assisted and direct contact abuse, and with the move of children’s lives online, the increased risks. The pandemic has underlined the need for a closer examination of the context of abuse outside the family, and a consideration of how to intervene in both physical locations and online platforms (a theme explored in a recent Social Work Scotland hosted seminar). More generally, ensuring child protection during COVID-19 has been challenging, with the everyday monitoring provided by schools and other universal services reduced or removed. Social work professionals themselves have been restricted in their ability to interact with families, with reductions in home visits, supervised contact, etc. Colleagues report concerns about patterns of Forced Marriage, Female Genital Mutilation and Honour Based Abuse.
There has also been a disproportionate impact for children involved in the Children’s Hearings System and courts. Permanence decisions have been delayed, existing Orders have been rolled forward without expiry date (meaning that families risk being subject to state intervention longer than necessary), and only priority case have been heard by Children’s Hearing panels, potentially limiting access to services from social work and others. Figures provided to the Scottish Government (as part the monitoring of COVID-19’s impact) indicate that since March 2020 there has been a significant reduction in the number of children becoming looked after away from home. At this stage there is not enough data and intelligence to confirm whether this is as a result of system changes or limited access to resources and not necessarily because of reduced need or better practice. This needs to be explored to ensure that children’s rights are not at risk from inaction.
The challenge of promoting the relationships and wellbeing of children looked after away from home has been accentuated by COVID-19. Social Work Scotland has been central to the development of a framework for decision making about contact, assisting practitioners make extremely difficult decisions. For example, there have been significant challenges around contact, for example between children and birth parents, balancing the benefits with risks, such as spreading the virus to foster or kinship carers (often an older population) or between different parts of the country (which may have different rates of infection and restrictions in place). The limited number of safe physical environments for indoor contact has further restricted options.
Social workers have consistently reported how stretched and affected many kinship and foster carers, and the children in their care, have been, with individuals feeling isolated and disconnected from their normal networks (formal and informal) of support. Local areas have done creative work using virtual support and new models of practical, material help, but for many of these families it has remained a very difficult year. We take heart from the adaptation and resilience the families have shown, and the positive stories emerging of, for instance, effective family group decision making taking place which have kept children out of the care system.
Families with children who have complex physical or learning needs have been particularly impacted by the closure of educational settings, having to assume 24 hour responsibility for care and education. There are specific risks for these families in terms of isolation and burn out without frequent opportunities for support and respite. And for those at or near school leaving age, the crucial transition planning for people with additional support needs (enabling them to make successful moves into further and higher education, or employment) has been disrupted, opportunities restricted.
Adults living in care homes, whether older people or adults with complex needs, have been disproportionately affected by the virus and the response. In the first phase on the pandemic, there were high levels of excess deaths (compared to the weekly 5-year averages for 2015-19, not all of which were recognised on death certificates as COVID-19 related during the period before testing became more widely available.
Some social care workers in residential homes, and also in the community, have also died as a result of contracting COVID-19 through their work, as sadly has been the case for other groups of essential workers.
From a social work perspective, it became increasingly important to ensure that people’s human rights and mental health were being considered alongside (rather than secondary to) clinical excellence and infection control. Issues as varied as discharges from hospitals to care homes, restrictions on visits, limited interaction within homes, mass testing, use of Do Not Attempt Cardiopulmonary Resuscitation forms, have all presented complex and nuanced decision making. And they have proved highly problematic for many care homes, especially those supporting people with cognitive needs. The enhanced oversight of care homes duty, placed on Chief Social Work Officers and other professional leaders, was an attempt to ensure a balanced assessment of risks, rights and needs in shaping local strategies. As we write, the vaccination programme is being rolled out through care homes, and we hope this will enable residents to access their rights to see family and friends, and to ensure they get the full range of services and supports they need.
At the core of the social work role is public protection; assessing risks and benefits in an ecological model, with the aim of securing the best outcomes for an individual, with their needs and wishes met and interests protected. In some instances, social workers are empowered to take actions to protect the interests of an individual, possibly bringing them into conflict with the individual or their carer / family, who wish to take a different course of action. This is a difficult but essential role in a society where not all individuals, whether due to incapacity or circumstances, are in a position to determine their best interests alone. And while families have a undisputed right to inform and lead decision-making in such instances, it is the case that they do not always have access to all the information, or necessarily have the rights, needs and interests of the individual as their primary concern. Over the course of the pandemic, with the social work profession’s ability to perform this role has been restricted, leading to concerns about the welfare of such as for adults with incapacity. Due in reduced reporting channels (fewer agencies and primary care contact with people and families at risk of crisis) and restrictions on movement and interaction, it has been difficult in some cases to ensure the rights and welfare of some individuals’ are being maintained.
Early intervention and community supports are critical to maintaining good mental wellbeing and mental health. Where these are not available, we can expect to see more people reaching mental health crises. This is likely to be compounded where the economic situation is worsened. With people’s mental health needs going unmet, detention – a deprivation of an individual’s liberty – is being considered more frequently than we, as a professional group involved in such decisions, would like to see it. As officers of local authorities within partnership arrangements, Mental Health Officers (specialist social workers with additional qualifications in mental health) are not sufficiently empowered to ensure provision meets assessed need. To ensure the rights of individuals with mental health issues are upheld, MHOs (and other relevant professionals) need access to specialist and community resources, over which people are offered choice and control. We believe that decisions regarding detention should be made after face-to-face assessment of patients, but we are aware that due to staffing constraints, this is not always the case. Whilst the number of people being detained due to their mental health has risen during the pandemic, this is in line with year on year rises. There is evidence, however, from the Mental Welfare Commission that some of the safeguards around detention have been used less frequently than previously. We are concerned about the critical shortage of both MHOs and “Section 22” medical professionals. We note that the Tayside Independent Review report “Trust and Respect” was explicit in finding that a shortage of Registered Medical Officers impacted detrimentally on the patient’s journey.
People who are homeless initially benefitted from the programme to ensure that everyone was off the streets, and the route map for “Everyone Home” has been developed to make asking about homelessness an expectation across public services. However, in order for this success to stand beyond the pandemic, public services must continue to be resourced appropriately to attend to the multiple underlying structural causes of homelessness (including additions, mental health, debt, etc.). Otherwise, we risk returning to pre-pandemic levels of homelessness (or higher, considering the precarious financial situation many people face), with the additional challenge of a diminished voluntary sector, its finances limited after a year of reduced income.
(C) Adults involved in the justice system
Justice Social Work delivers reports to Scottish Courts, provides or commissions community-based programmes as an alternative to prison, and is responsible for a range of expert risk assessment support to the police, prison service and Parole Board. Requirements for physical distancing, and the universal impact on staffing through sickness, isolation and redeployment, have reduced the ability of justice social workers to deliver group programmes and coordinate unpaid work activity. This has a very significant impact, in terms of rights and equalities, on the individuals subject to relevant courts orders, effectively extending sentences and prolonging involvement with the justice system.
Both Social Work Scotland and SASW have articulated concerns to the Scottish Government around the backlog of community order ‘unpaid work’ hours. We believe that without a systematic reduction in the number of outstanding unpaid work hours (through revocation or variation of orders) there is a major risk that Justice Social Work (JSW) will be overwhelmed, with serious consequences for the wider justice system and the rights of both social work professionals and individuals and families, and victims. Whilst some funding has been made available to buy in support from the Third Sector, this will not release the number of hours necessary to meet the backlog in demand.
Before the Coronavirus pandemic there was an increasing focus on expanding early intervention measures such as Diversion from Prosecution and Structured Deferred Sentences which help individuals to avoid unnecessary contact with the criminal justice system and deliver swift interventions which can interrupt a cycle of offending. Many of the strategies now in place to deal with the backlog within the justice system require heavy input from CJSW, but simultaneously the capacity of CJSW has reduced.
People in prison have experienced significant additional curtailments to their rights as visits, time out of cell, meaningful daily activity and access to fresh air have all been reduced. Numbers of people on remand have increased as has the length of time people are remanded impacting on people’s lives, housing, work finances and relationships. Children who have a parent or sibling in prison will experience the removal of the person from their lives in a more extreme way than even prior to the pandemic.
QUESTION 3: HAVE THERE BEEN SPECIFIC EQUALITY OR HUMAN RIGHTS IMPACTS ON GROUPS OF PEOPLE AS A RESPONSE TO THE VIRUS?
The Scottish Human Rights Commission (SHRC) recently published a report into changes to social care provision during COVID-19 and its impact on human rights. It details the experiences of individuals receiving health and social care support, with a focus on the rights of persons with disabilities, older people, carers and children. The testimony of many of those who participated in the research is distressing, highlighting the serious consequences for individuals when support cannot be accessed.
The context around these experiences were the efforts of NHS, local authorities and independent care providers (working together as Health and Social Care Partnerships) to ensure support was available to meet all assessed (and anticipated) need, within safe staffing levels. Plans took into account high rates of staff absence, due to sickness and isolation. The restrictions, and necessary steps to protect staff, meant that many social workers and social care staff would be limited in their ability to work. The focus was on protecting critical services for those most in need. However, the timeframe for how long this would be needed was not clear at the outset, and the working assumption was that measures to reduce care packages for some (to ensure some access for all) would be required for weeks, not months. It is clear now that the impact of these measures varied across Scotland, reflecting different levels and types of pre-pandemic service provision and workforce demographics. But in all areas of Scotland those requiring social care support, and those caring for them, have been disproportionately affected by the pandemic because of the limits the reductions of support place on an individual’s independence (beyond the national restrictions everyone has had to adapt to).
Because many face-to-face support services such as day centres and support groups had their operations significantly reduced as a result of public health requirements, the pressure of continually caring for people during the crisis will also have had an effect on the wellbeing of carers. Carers who support their family members or friends to live independently have experienced isolation and reduced support, with many increasing their caring hours to protect the supported person from additional footfall into their homes and related risks of exposure to the virus.
The SHRC report calls for the social care system to be reimagined as a dynamic interplay within a social infrastructure which supports citizens’ human rights as individuals within families and communities. SASW and Social Work Scotland agree strongly with this vision, but take this opportunity to emphasise that it is only possible when the system is populated by sufficient numbers of skilled people, committed and enabled to deliver the best outcomes for individuals. Such a system, requiring a significantly larger ‘workforce’, is not possible within current funding levels. A return to pre-COVID-19 structures and mechanisms of support, even if funding were increased, would not address the issues flagged by the SHRC report.
It is likely that one of the effects of the pandemic will be to increase the number of people needing health and social work and social care support as a result of:
We take heart from examples highlighted in the Care Inspectorate’s report, ‘Delivering care at home and housing support services during the COVID-19 pandemic’, where local partnerships successfully adapted and flexed their support to meet people’s needs during the pandemic. Teams in local government and the voluntary and private sectors have innovated and adjusted, put people’s needs before contractual hours. The capacity for change and positive reform is in place, and we look forward to the upcoming discussions about how to realise that, in response to the Independent Review of Adult Social Care.
Question 4: What do the Scottish Government and public authorities (e.g. local authorities, health boards etc.) need to change or improve: as a matter of urgency & in the medium to long term?
This question frames a critical debate in an unhelpful way. Locating responsibility for change and improvement solely with Scottish Government and public authorities not only presumes that they have the capacity / resources to effect changes, it encourages us all to see the problem as ‘theirs’ to resolve. The issues we have profiled in this response, such as poverty, structural inequalities and the public-civic infrastructure which give effect to people’s human rights, can only be addressed through both political and societal action. As with climate change, or changes to consumption that limit our impact on biodiversity, public authorities of all kinds are key players. But in democracies like Scotland, they move and act within a space we, the public, give them. Calling for public authorities to effect changes that will require significantly more resources, without our clearly accepting the need to provide those resources (through taxes, government borrowing or reallocation of existing spend), will simply perpetuate the public policy debates we have had for the past ten to fifteen years.
The funding of social care
Social Work Scotland and SASW are particularly concerned about the impacts of the deepening financial crisis in social care, which we have highlighted recently in our respective submissions to the Independent Review of Adult Social Care (IRASC). The crisis also exists in children and families social work services, and criminal justice social work, which are not within the scope of the Independent Review of Adult Social Care.
Adult social care spending per head in Scotland has fallen dramatically for Scotland’s older people, less so in England but more than it has in Wales (see graph in download here).
Spending per head on adults aged 18-64 – mainly people with learning disabilities or physical disabilities, or in need of mental health support — has fared better, but in Scotland is back to the 2010-11 levels whilst the numbers of people living with disabilities, or with mental health problems, have both increased in Scotland, as in the rest of the UK. (The figures in the graph come from the Treasury’s Public Expenditure Statistical Analyses 2020).
Social Work Scotland’s submission to IRASC on Demographic Change and Adult Social Care Expenditure in Scotland is mostly concerned with the Scottish Government’s own H&SC Medium Term Financial Framework (2018), which estimated the increased demands at 3.5% for adult social care as a whole, and 1% for the NHS.
We found that the estimated additional spend on 3.5% per year for adult social care is well supported by research in England by the London School of Economics using sophisticated modelling from survey data not available in Scotland. That also shows that the additional demand for services for younger adults with a learning or physical disability, due largely to improved longevity, is at similar annual percentage increases as demand from older people.
However, our analysis does not support the lower increases for the NHS in the H&SC Medium Term Financial Framework – these are 1% per year for demography, compared to estimates by the Institute for Fiscal Studies of 2.2% per year for England and the UK as a whole (in their major study Securing the future published earlier in 2018).
Our analysis also does not support the annual workforce increases set out in the Scottish Government’s Integrated Health and Social Care Workforce Plan for Scotland published in December 2010, which stated that:
Those figures cannot be found in the MTFF and, we believe, are incorrect. In any event, Scottish Government funding to councils for adult social care has not been increased to the level required to meet demography, yet alone address the unmet need that has accumulated for survivors of the decade of austerity. Increased funding for social care needs to fully recognise the impacts of demographic change, in line with the Scottish Government’s own medium-term planning, and on a corrected basis for the NHS in Scotland.
The role and status of social work
Social work is one of the few ‘key worker’ professions which is, when able to operate as conceived, proactive and person-led. It exists (and in legislation is empowered) to take action in defence or support of people made vulnerable by their circumstances. Those we work with may be less likely to be heard, and may struggle to stay afloat when the scaffolding of support is stripped away (as it has been during COVID-19). Social work sees people in their own individual context, recognising that an individual’s relationships, strengths, interests, etc. constitute the person, and that to give meaning to their human rights is to reinforce and promote those assets. But we must also balance individual rights with those of others, and consider the risks of certain actions to the individual themselves, their families and wider society. Our role must be to enable those people to have a voice, and to provide protective support or intervention where that becomes necessary.
As illustrated above, before COVID-19 social work (and the wider social care system it underpins) was already facing significant financial constraint; demand and aspiration not matched by available budgets. The 2019/20 COSLA report Investing in Essential Services, highlighted the challenges local authorities face to meet the outcomes and targets identified in the national performance framework within existing resources, referencing specifically child poverty and vulnerable adults. The strain that the social care system is under, and the conditions in which care professionals must practice, has been well documented in a range of reports from academics and institutions. The latest such report from the University of the West of Scotland (UWS) (Decent work in Scotland’s Care Homes) highlights a sector facing ‘systemic issues, a lack of respect and in need of cultural change’.
Within the current landscape, social work professionals – trained to respect and uphold human rights and work alongside individuals and communities (balancing and holding needs, risks and interests) – find themselves working in systems which can force them to be ‘assessors’ of risk and gatekeepers to over-rationedrvices. This not only means we fail to realise the human rights and outcomes potential of social work, but we slowly erode the enthusiasm and commitment of the professionals themselves.
While there has been positive innovation, acceleration of developments and much useful learning from the past year, the pandemic has made it harder to work alongside people and families at the challenging points and transitions in their lives. This has posed a unique challenge to social work, which is support based within and upon relationships. Feedback from our members has highlighted a number of further issues for the profession, limiting our ability to provide support and services and significantly affecting the working conditions and wellbeing of social workers. We would welcome any opportunity to discuss this further with the Committee.
Social Work Scotland’s Chief Social Work Officer (CSWO) committee has reported that the pandemic’s impact on the social work profession has been to compound pre-existing issues. These include dealing with real term reductions in budgets (which in turn increases workload on individuals), difficulties in recruitment, lacking visibility and authority in key decision-making forums, the disparity in social work and social care’s pay and conditions between health and social care partnerships. The split professional leadership across adults, justice and children and families is also seen, by some, to weaken oversight and coordination.
In July 2020 the Social Workers’ Union reported that one third of social workers are considering leaving the profession as a direct result of the pandemic. The union released an action plan calling for increased mental health support, a social work recruitment drive and a pledge not to re-introduce austerity measures post-pandemic.
As we move through and, hopefully, out of the pandemic, we would like to see and contribute to a re-imagining of the role and functions of public services. People are not simply ‘rights holders’ and professionals (such as social workers) are not simply ‘duty bearers’; we are all people, facing the challenges presented by the context, trying to deliver the optimum outcomes for individual and society, while having to balance competing interests, rights, demands and priorities. Similarly, public services must embrace greater creativity in how they support people to give meaning to their human rights and find genuine wellbeing. That will require a workforce who feel equipped and empowered to do what they were trained to do. The Human Rights Taskforce due to report in March 2021 will, no doubt, be considering a range of ways that public services and others can achieve this, and the Independent Review of Adult Social Care and The Promise are re-imagining support services for key groups.
For further information, please do not hesitate to contact:
Social Work Scotland
 See World Health Organisation website: https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it
 See Social Work Scotland supplementary submissions to the Independent Review of Adult Social Care: https://socialworkscotland.org/wp-content/uploads/2020/11/SWS-Supp-Sub-1-DEMOGRAPHIC-CHANGE-AND-ADULT-SOCIAL-CARE-EXPENDITURE-IN-SCOTLAND.pdf; and https://socialworkscotland.org/wp-content/uploads/2020/11/SWS-Supp-Sub-2-ASC-EXPENDITURE-IN-THE-DECADE-OF-AUSTERITY.pdf.
 Coronavirus (COVID-19): children, young people and families – evidence and intelligence reports (various)
 The IRISS summary of a University of Edinburgh/City of Edinburgh Knowledge exchange project illustrates the value of this rights based approach in the most urgent of circumstances https://www.iriss.org.uk/sites/default/files/2020-06/recognition_matters_briefing_june_2020.pdf
 National Records of Scotland: https://www.nrscotland.gov.uk/statistics-and-data/statistics/statistics-by-theme/vital-events/general-publications/weekly-and-monthly-data-on-births-and-deaths/deaths-involving-coronavirus-covid-19-in-scotland (Week 53)
Independent Review of Adult Social Care: main and supplementary submissions
INDEPENDENT REVIEW OF ADULT SOCIAL CARE: submissions from Social Work Scotland to Derek Feeley, Chair of the Independent Review of Adult Social Care
6 November 2020
Social Work Scotland is the professional body for social work leaders, working closely with our partners to share policy and practice, and improve the quality and experience of social services. We are a key partner in the national Adult Social Care Reform Programme, creating an operational framework for Self-directed Support across Scotland, which through the practice of relationship-based social work, supports the consistent delivery of social care that is personalised, rights-based and which supports active citizenship. Another of our current projects is aligned to a Scottish Government programme (Health and Justice Collaboration Board) to test and implement frameworks for the delivery of integrated adult social services in Scottish prisons.
We welcome the focus of the Independent Review of Adult Social Care on sustainable improvement to adult social care in Scotland within a human-right frame of reference, and we have been delighted to welcome Derek Feeley, chair of the Review in meeting with Chief Social Work Officers and members of the Social Work Scotland Adult Social Care committee. At that meeting, Social Work Scotland presented Mr Feeley with a summary report of key messages for the Review from social work leaders. Our formal submissions to the Review expand on those key messages, and we look forward to ongoing engagement with the Review.
Social Work Scotland’s response comprises:
Summary of Social Work Scotland main submission
The Independent Review of Adult Social Care is an important opportunity for Social Work Scotland to articulate positions in respect of the scope, nature, delivery, management, governance, regulation, funding and future direction of adult social care in Scotland. Within this, engagement with the Review (both written and in person) provide a chance to emphasise the unique role and contribution of social work, as a distinct but core component of social care.
Social Work Scotland have responded to previous inquiries and consultations looking at similar questions (See Appendix A). Building on these responses, and following structured discussions within (a) Chief Social Work Officer and Adult Social Care Standing Committees and (b) members of the Board and partners (including Chief Officers and COSLA), Social Work Scotland has identified a number of key messages / positions to be fed into the Review. Effort has been made to ensure these messages / positions are consistent with a vision for adult social care that is ambitious but deliverable. The key points are:
Rationale supporting our key messages / positions
A priority in our discussion with the Independent Review is building a common understanding of what is being referred to by the term ‘adult social care’.
We believe a distinction should be drawn between social care, a concept that implies the delivery of a service to an individual, and social work, whose function is specified under the Social Work (Scotland) Act 1968 as undertaking holistic assessments and determining the level of support required to meet eligible needs. Moreover, social work is a proactive service, rather than simply a reactive one; it exists and is empowered to take action with people made vulnerable by their circumstances, balancing their rights with those of others, and the risks of their actions to themselves, their families and wider society.
The role of social work is therefore dynamic and complex, working alongside people and families at often challenging moment and transitions. In helping to protect people social workers must sometimes use statutory measures, bringing them into conflict with the individual and families. It is a difficult but essential role in a society (and social care system), where not every individual is in a position to determine their best interests alone, or the best interests of those they have responsibility for.
The position of social work as a profession within social care
Social work is currently the gateway through which most individuals access social care support funded by the state. In order for that social care provision to be delivered to the right people in the right way, social work practice needs to be independent and robust (i.e. true to its statutory and ethical underpinnings), with the knowledge and expertise to navigate a variety of settings, including home, hospital, residential care homes, homelessness and prison. It needs to be equipped to work with people of any age, in a way which situates the individual within a web of relationships and interactions. Responding to an older person affected by domestic abuse may necessarily involve family, friends and other professionals.
Among the regulated professions, Social Work is unique occupying the liminal spaces between universal services – education, health, justice, housing, welfare. Where there is contraction of universal service provision (usually followed by a heightening of thresholds) or a conflict between a universal service and an individual/family, social work responds, and in our response, we consider the person holistically. We have seen several examples of this in recent years:
Due to a number of factors, some going back decades, the role of social work within the social care system has been pushed towards transactional care management and adherence to bureaucratic processes and procedures. In practice, this means that social work acts as both gateway to and gatekeeper of social care. Frontline social work effectively acts as a control for finite local authority budgets, and this causes us a professional dilemma. Resource allocation processes often impact on our ability to enhance human rights and on the quality of the relationship with families. It is more straightforward to develop a care and support plan for a service or a budget; it is much more time consuming to get alongside the person, consider their life complexities and the potential contribution of their community and natural support to them living a full and rich life, then work collaboratively with them on how to go forward. This approach benefits personal outcomes, but comes with a long term financial cost.
Cost-cutting and overreliance on a care management approach has resulted in proportionately fewer qualified social workers available who are able to engage in this way to support the growing population of adults with complex needs. Shifting to a more intense practice model will require additional financial and other resources, but in the end relational, therapeutic support would much better support people’s human rights, and should itself be a right. This is demonstrated where local authorities have shifted towards this approach.
Social work’s specific statutory duties centred on the delicate balance of rights and risks – both individual and societal – demands well trained autonomous professionals supported in their duties by their authority’s Chief Social Work Officer. The CSWO remit is wide ranging with safeguarding responsibility for individuals at risk, for proper deployment and support of the social work and social care workforce, for ensuring robust and effective systems and processes, care governance, and continuous improvement across the whole range of social work and social care services. The CSWO is directly responsible for some statutory functions which restrict personal liberty, and has specific duties in relation to safeguarding.
The widening of regulation and inspection into the social care workforce and services has, to an extent, diverted focus from social work as a distinct profession. This becomes problematic when social work enters into partnership arrangements across adults, children and families and justice, where the unique contribution of social work is lost to view. Social workers can become demoralised and disenfranchised as professionals.
Social Work Scotland believes that there is much to be gained by the proper integration of health, social work and social care. However, this needs to be on the basis of a differentiated understanding of the principles and values of all the professions involved, retaining each profession’s unique contribution and impact within local integration arrangements. To facilitate this, we are supportive of measures which would consolidate social work as a genuinely national profession, recognised and supported nationally, underpinned by common terms and conditions and a strategy for its development.
A national profession, perhaps supported by a national agency, would also provide greater opportunities for professionals to progress professionally, without having to take on management responsibilities, and encourage greater professional autonomy in the carrying out of assessment and support planning. In parallel, similar steps for our colleagues in social care roles would potentially give their essential work proper value and status.
Resources and implementation of complex change
The social care model in Scotland was not designed or funded to meet the current expectation of provision or demand. An increase in complexity of people’s circumstances has been well documented, as has the disastrous impact of UK welfare reform on the impoverishment of many people and their families. These factors serve to increase the demand on social work and social care services.
Social Work Scotland members increasingly experience the effect that real-term spending reductions is having on their ability to sustain levels of service, maintain quality and provide non-statutory early help to prevent escalation into crisis. Social services (social work and social care) as a whole system within the integration environment with health must be sufficiently funded to meet its statutory duties and have clear, fair and well-functioning mechanisms for resource allocation within the overall available funding. Despite an overwhelming commitment from social work and social care services, the fragility of the wider social care system has become all the more apparent during the Covid-19 pandemic.
Social Work Scotland believes that the system could be reimagined to be a much more dynamic interplay of social infrastructure supporting citizens’ human rights as individuals and within families and communities, with a combined workforce operating at community level.
Whilst there is much widespread agreement across national and local, public and independent sector, and national partnership organisations, as to what good social services look like (enshrined in the Social Care (Self-directed Support) (Scotland) Act 2013), the question is what will it take to design and implement the changes necessary to meet these aims for everyone in all areas of Scotland?
It is critical that we come to a collective understanding of the essential elements that contribute to successful implementation of whole-system change, including the roles and remits of regulatory bodies, improvement agencies, and vehicles of service delivery. This is what has been missing in the implementation of recent ambitious and transformative social policy in Scotland.
Our view has been shaped by our experience progressing implementation of self-directed support in Scotland. Approaching this through the structure and insight offered by implementation science, we have made progress in identifying the essential, non-negotiable components which need to be in place for a publicly funded social care system to enable a person and/or their families to be in control of their life, regardless of their disability (visible or hidden) or life circumstances. Among those core components are established practices, which when reliably delivered by a well-trained and supported workforce, consistently deliver desired results. We also know what infrastructure needs to look like (including upstream community assets, accessible housing, case management IT systems, technology, administrative support, commissioning and procurement, eligibility policy, finance and budgeting systems), and what leadership needs to look like (and have as skills) in what are highly adaptive environments.
Over the past decade, support to build community capacity, in the shape of community learning and development services, community workers, and grants to community groups, has been critically reduced across Scotland.
Investment is required to ensure that communities are ready and resourced to engage in strategic planning and commissioning processes. Independent support organisations, such as those funded by Support in the Right Direction (SiRD), are vital in ensuring the voice of people who use services and carers are invited and heard.
Engagement should lie at the heart of decision-making and is the key to people having meaningful choice and control in their own support. Engagement supports the principles of personalisation underpinning Scotland’s Self-directed Support (SDS) legislation. Practically, good engagement that personalises social care means that care arrangements are more likely to meet needs and less likely to go wrong.
The wide range of asset-based approaches and resources already available are used in a piecemeal way across Scotland, but can be abandoned or distorted when budgets are tight. In order to implement these approaches, which often conflict with the traditional ‘way we do things’, attention needs to be given to workforce training and coaching, supportive systems and devolved leadership.
We feel very strongly that there needs to be consideration of the range of people’s lived experience when designing and constructing social work and social care services. Often the focus of public discussion around social care is older people with personal care needs. Other individual experiences, such as adults with complex learning disabilities or mental health, are not so well profiled, or held in mind. Those experiencing alcohol and drug addiction, domestic abuse and the justice system tend to come from communities experiencing the greatest health and social deprivation. An adult social care system is as much about these experiences as any other; these voices must come to the fore.
Eligibility criteria reform and human rights
Current eligibility criteria are deficit-based assessment of levels of risk to an individual if care is not provided. They run contrary to the principles of personalisation, as they drive time-and-task service provision. They are applied differently across Scotland and result in unnecessary variation in outcomes for individuals. The current approach to eligibility is impacting too severely on vulnerable people and those at the edge of social care, and we strongly recommend that the National Eligibility Criteria are reformed.
Social work and social care financing needs to be sufficient to support the quantity and types/models of care necessary to support our population. Services in many areas of Scotland are currently constrained such that they are only able to address critical risks (as defined in the National Eligibility Criteria) by the provision of personal care only, leading vulnerable people to struggle when their needs change or when their needs are social in nature rather than physical. Our work in the implementation framework for SDS shows us that the current national eligibility criteria are not fit for purpose, and indeed run counter to the values and principles of Self-directed Support. We recognise that a framework is required to ensure fair distribution of resources which should support strengths-based social work, community social work and ensures early help is provided for people with lower levels of need.
The provision of only critical level services presumes that intervention for anything less can be picked up by family or local community, and that the person has the capacity to organise and manage sometimes complex support arrangements. In some settings (for example prison) people do not have this level of family or community support and are not able to follow signposting to where third sector support might be available. Lack of early help precipitates crises which are costly in outcomes for the person and financially for the local authority.
There should be consideration given also to the variation in charging and contributions policies across local authority areas and their disproportionate impact on individuals with similar needs in different areas of Scotland
While supportive, we recognise the challenge inherent in determining how social care needs (as articulated in social work law) are incorporated into a human-rights-based frame in a meaningful and measurable way. Underpinning principles should cover the range of activities necessary for ‘active citizenship’, including reducing isolation, supporting people to make and maintain friendships, promoting vocational skills, supporting people to develop and enhance life skills, promoting physical and mental well-being, and mitigating health inequalities.
This would involve supporting people with complex needs in personalised ways, supporting carers, promoting SDS and personalisation within partnerships, working with people at the earliest opportunity to maintain, improve or maximise independence, building capacity in the community and with sustainable services, ensuring best value and effective partnership working, reducing dependence on high-tariff services, and creating services that are aware and confident about using and utilising technology.
This ideal approach will require considerable additional resource, particularly as applied to a growing older population. The population shift will impact disproportionately on women, who provide most of the care to family members. Consideration must also be given to how to properly resource the Carers (Scotland) Act 2016, giving real affect to the principles of that legislation.
Commissioning for personalisation
We note that the majority of pre-Covid local Commissioning Plans are weighted towards health-related matters and make little or no reference to personalised care and support. A perspective that embraces the holistic person with the right to choice and control should be central to framing more personalised commissioning practices.
SDS legislation calls for innovative solutions to allow people to hold individual service funds, necessitating a shift in commissioning practice from block funding to personal commissioning, to enable more freedom of choice and greater control.
We acknowledge that there is some financial risk in departing from traditional service models to new models that might initially be underused. We would support more discussion on how risk might be shared.
Many services commissioned and arranged by the local authority (Option 3) are delivered on the basis of ‘time-and-task’, and this is runs counter to a human rights-based approach to delivering care and support, because people’s needs and choices naturally change on a day-to-day basis. Introducing more of a personal approach to is essential to assist people receiving supports in a way that meets their personal outcomes. We believe that quantifying ‘time’ rather than ‘task’ would allow greater choice and control by individuals, whilst allowing for a budget to be allocated to meet personal outcomes.
Embedding Self-directed Support as good social work and social care
Scotland is a country with significant geographically and economically variation, with a diverse and vibrant citizenship with whom we should be aiming to personalise care and support and to offer people choice and control of how they want to manage their lives.
We recommend that the review considers what implementation science might offer in our national attempts to implement SDS consistently across Scotland. We believe that this approach is the most suited to undertaking the sort of complex, adaptive change required to meet Scotland’s ambitious progressive policies.
With national partners and local authorities, we are asking what it will take to embed SDS in a sustainable manner across the geographies of Scotland and across all care groups equally. In accordance with best international implementation practice, this includes examining practices and tools for their effectiveness and fidelity, and understanding and promoting the system drivers necessary for adaptive change.
Going forward, we strongly support a shift from traditional ‘care management’ approach in adult social work to more relationship-based practice with the supported people at the centre of decision making. Systems and processes would need to flow from that guiding principle.
This approach would see LAs/HSCPs move away from care management to a more traditional form of social work, working relationally and enhancing the natural supports of family, friends and neighbour’s contribution through such models as Family Group Decision Making and Community-Led Support. A radical shift of focus of integration authorities to support people to self-manage, on personalising care and support at home and on effective early intervention and prevention would involve working collaboratively with a wider range of partners including education, housing and community representatives using shared decision-making processes and sharing both risk and responsibility.
Whilst housing statements are required to be considered by Integration Authorities, better arrangements are needed to influence housing providers when they’re planning adaptations to existing housing stock. We would want to see housing developers required to contribute toward the provision of community health and social services. We could require a certain proportion of new build houses to be ready for use by someone with a high level of support needs.
Technology needs to be at the heart of the future of care preserving independence and supporting social interdependency. It should not substitute for human contact. The National Digital Platform should incorporate as great a focus on technology to deliver social care as on health, and should be given highest priority as a core enabler.
Data and other systems require to be better aligned to the principles of SDS. Much time and effort is spent on managing outdated information systems that do not link well around the person. There is no national requirement to capture outcomes achieved for adults.
Data that is useful to improve frontline operations currently has less priority than aggregated performance management data, which we argue from an implementation perspective is not sufficient as little can be learned from it.
We have also found differences in resource allocation across client groups that does not comply with a rights-based approach. Algorithms underpinning local resource allocation systems favour younger adults over older adults, leading to some outcomes being unfunded or underfunded. In many cases, only critical personal care needs are resourced.
A key driver of any adaptive system change is workforce; selection, training and coaching. In order to attract a competent and committed workforce, remuneration should reflect the complexity and responsibility of roles across a varied employment landscape. Innovation is required in how we support people to employ their own personal assistants (employed with an Option 1 Direct Payment). We need an inward migration system that can attract skilled workers into social work and social care. We need to focus on attracting workers to urban, rural and island areas and keeping them engaged and motivated. We require a gendered analysis of the workforce if we are to understand how to attract men into the social work and social care workforce and how to best support women in the workforce.
With budget cuts over the past decade, local authority social work learning and development teams have all but disappeared, impacting greatly on the ongoing training of social work and social care staff. This highlights the lack of parity of social work and social care with other professions such as teaching and nursing. If adaptive change is to be implemented effectively, then the workforce requires not only high standard skill-based training but ongoing intensive coaching and supervision, and to expect pay rises in line with those offered to nurses and teachers.
National Care Service
While we believe that social work and social care needs to be delivered locally, Social Work Scotland is supportive of the development of a national adults practice model (similar to GIRFEC) which support consistency of approach across Scotland whilst allowing for variation only where this is reasonable in the context of local geography, demography and cost of living.
However, we are unclear how the principles of choice and control central to Self-directed Support can be realised by the creation of a National Care Service if it is to be responsible for delivery of social care. It may be that a National Care Service can have most effect as a layer between national government and local delivery, driving greater consistency, improvement in the workforce, equitable distribution of resources, etc.
While the concept of a National Care Service may be attractive in some regard (e.g. a driver for consistency), we have practical concern about the design of such a service and how it might be implemented as intended within Scotland’s governance landscape.
 In reference to implementation of the Promise.
 For example, the Drugs Deaths Taskforce
 For example, the Review of Mental Health Law in Scotland and Forensic mental health services: independent review
 In reference to development of the Community Justice agenda.
 “Social care means all forms of personal and practical support for children, young people and adults who need extra support. It describes services and other types of help, including care homes and supporting unpaid carers to help them continue in their caring role.” Scottish Government. A Social Work Scotland definition would expand this to include care and support provided at home.
 “Social work is a practice-based profession and an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people. Principles of social justice, human rights, collective responsibility and respect for diversities are central to social work. Underpinned by theories of social work, social sciences, humanities and indigenous knowledge, social work engages people and structures to address life challenges and enhance wellbeing.” IFSW, July 2014
 Thematic review of self-directed support in Scotland – June 2019, Care Inspectorate
INDEPENDENT REVIEW OF MENTAL HEALTH LAW IN SCOTLAND
Submission from Social Work Scotland to John Scott QC
29 May 2020
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services.
Social Work Scotland appreciated the time taken by the Secretariat for the review to meet with the Social Work Scotland Mental Health group in February 2020, and offers this response to the discussion questions set out in Part B of the consultation paper.
PART B Organisations or individuals who work with the law
The Review would like you to draw on your experience of working with Mental Health law and consider the following questions. You do not need to answer all of the questions, and please feel free to provide as much or as little evidence for your answers as you wish.
Reciprocity and resourcing
Social Work Scotland’s experience is that while the Mental Health (Care and Treatment)(Scotland) Act 2003 is progressive in its approach regarding reciprocity, it is not in any way sufficiently funded for this to be realised in practice. We find that the principle of compulsion remains as the dominant culture, centred on clinical care planning such as medication and nursing care. The wider interests and ambitions of active citizens are largely absent from care plans.
The Review should consider general trends in the use of legislation, particularly measures of last resort. We are concerned about an increase use of emergency and short term detentions.
While short-term detentions are the preferred method of detaining a person in hospital, the increase in their use strongly indicates that the level of support available in the community is not sufficient, and we wonder if partnerships are fully cognisant of their duties with regards to community provision.
Seeing an increased use of legislative measures, we are concerned that austerity is impacting on how the act is used, particularly in relation to thresholds of risk. We are pleased that the Review is incorporating an economic perspective as we believe that this is central to understanding how the current Act is being used and the impact on people subject to legislation. Given our concerns regarding adequacy of resources to meet needs, we hope that the Review can also seek to instigate a review of mental health support services.
There is much in the current Act that is facilitative and reciprocal, e.g. duties under section 25 – 27, but these are rarely central to the provision of support. These duties require local authorities to minimise the effect of mental illness by the provision of community-based support services. The most well used provision in this duty is the provision of advocacy, but the Act allows for a much greater range of provision. However, mounting budget constraints have resulted in only critical services being provided. We also note the limited use of Self-directed Support options for people experiencing mental illness.
We draw the review’s attention to our response to the recent Social Care Inquiry which argues for early supports for people with fragile mental health, including the use of asset-based approaches, such as CPA, and a rethink of the current system of eligibility criteria.
Despite being a duty in the Act, a lack of person-focussed assessment and well executed discharge planning results in people whose mental health has been stabilised being discharged into circumstances unconducive to their continued mental wellbeing, such as poor living conditions where there is no heating and no furniture, and an absence of social supports. Consequently, other legislative duties are not met, for example the involvement of carers in discharge planning under the Carers (Scotland) Act 2016. Whilst we accept that MHOs need to exert challenge, there is too widespread a disregard of section 25 – 27 duties by partnerships and local authorities to argue effectively.
We note that there is improvement in the use and standard of Advanced Statements, but members also find resistance to their use on some areas. Often discharges are made without the MHO being contacted by the hospital. The reality is that there is often poor collaborative partnership working, especially when resources are constrained.
We welcome the Review’s systemic approach. Seventeen years on, the 2003 Act requires to be reviewed against a range of system-wide factors including the extent to which integration of health and social care has fulfilled its intended outcomes. One recent review cites wide-ranging systemic failures resulting in poor outcomes for people.
It is not always clear to which part of the integrated system is delegated the local authority duties under sections 25 – 27 of the Act. We are concerned that integration authorities are not sufficiently sighted on this aspect of the Act, instead focusing largely on the provision of clinical services.
Considerable variation exists across Scotland in how mental health and social care services are delivered to people and their carers. We are interested in understanding the degree to which this variation is warranted by local circumstances and need, and to determine how unacceptable variation can be diminished in a way that respects local democracy.
We greatly welcome the Review’s focus on human rights, and believe that this is the touchstone through which we can determine efficacy of approach.
Pressures on key professional groups
Social Work Scotland published a paper in 2017 on the capacity, challenges, opportunities and achievements of Mental Health Officers. Whilst now three-years old, the experiences and findings of the research remain relevant in 2020.
With cumulative work pressure on MHOs, priority is given to the preparation of Community Treatment Orders, and use of Social Circumstance Reports (section 231) has largely been overlooked.
With people’s needs, other than critical need, being unmet, detention is considered more frequently than it should. As officers of local authorities within partnership arrangements, MHOs are not sufficiently empowered to bring to bear their powers over the provision of assessed need. MHOs need access to community resources and good quality social supports, where people are offered choice and control.
We are concerned about the critical shortage of section 22 medical professionals, knowing that there are fewer medical trainees in the system than are required. We believe that medical decision should be made after face to face assessment of patients, but aware that due to staffing constraints, this is not always the case. We note that the Tayside Independent Review report was explicit in finding that a shortage of Registered Medical Officers impacted detrimentally on the patient’s journey.
Best practice in planning hospital admission fails because there is limited inpatient bed capacity. Threshold for admission is high, with people at crisis before they are admitted.
The practice of ‘boarding out’ results in some people refusing to be admitted voluntarily. Consequently, people may be detained and admitted to hospitals some distance away from their families and communities. When guardianship is pending, compulsion can be used to place the person in a nursing home. In this context we question how supported decision making is being used or how the best interests and human rights of people can be respected.
We are concerned about the use of Emergency Detention Certificates without MHO consents. In general hospitals the Act can be used to stop people absconding, with EDCs made before MHOs are contacted.
We find that inpatient services remain clinical in focus and are not set up to support the whole person. Use of the Care Programme Approach has been pulled back in many areas.
As noted above, partnership focus on inpatient bed pressures results in a lack of attention to early intervention and prevention at a community level.
There is a problem accessing some specialist resources, i.e learning disability in some areas of Scotland. Social Work Scotland members have noted waiting list for detentions in learning disability services, and for people who need specialist learning disability mental health services. Wards and beds are being shut, putting additional pressures on Community Mental Health Teams and MHOs. We have been told that some MHOs have been required to use Adult Support and Protection measures to force decisions about detention.
Tribunals and legal supports
Challenges from MHOs do not always land well with medical colleagues or with tribunal members, and we think this is indicative of a wider issue regarding relative weight of professional knowledge in decision making, with a higher status being afforded to medical views. It is standard practice in tribunals to excuse medical colleagues due to pressure of work in a way that others are not.
We find that tribunals are less likely to take radical decisions that support the spirit of the legislation. Proactively, tribunals could more rigorously examine deficits in the system that might have prevented unwanted outcomes. To this end, the Review might consider allowing tribunals a wider range of interrogative powers.
Tribunals might better take the perspective of the person and their carers from an early stage in proceedings (rather than at the end of the proceeding as is currently the case), and from this standpoint, inquire into all aspects of the treatment and care plans. This would ward against pathologising the person, and marry up better with supported decision making.
We wonder if a representative other than a curator ad litem would be better able to reflect a wider overview of the person’s circumstances and views.
The place of the legal profession is confusing under current arrangements. Where a legal professional is appointed as curator, that professional can also act as the person’s solicitor. This could give rise to conflicts of interest, and we recommend tightening of tribunal authority.
In general, we think that tribunal regulations need to be broadened with respect to compelling professionals and organisations to act in the best interests of the person.
There are several populations whose needs are not well served by the Act as it stands.
These include people who have recurring mental illness and in some instances people with multiple conditions, like learning disability and mental health. Welfare reform has had a notable adverse effect on mental health, with those in poverty experiencing a worsening of their mental health.
Services are not well geared to cope with the needs of people with different ethnic backgrounds, e.g. South Asian, Eastern European. The system lacks cultural awareness, with lack of timely translation of information materials/documents. Frequently, family members are called on to translate at meetings, and may project their own meaning on what is being communicated. Where translation services are commissioned, in some cases, their quality is questionable. We consider there should be a national minimum standard set for such services.
Children and young people are not well served by existing legislation and systems. There is an inconsistency of approach across CAMHS services and legislation is not always used when appropriate despite young people being significantly unwell. There may be an argument that use of legislation does not align with a therapeutic relationship, but legislation could be used more effectively in some cases.
There needs to be a recognition that CAMHS facilities are not sufficient to allow short periods of inpatient treatment that can improve prognosis. There are insufficient beds available for young people, and inpatient provision is not geared to cope with young people with behavioural challenge. There are at times inappropriate placement made of young people in adult wards. A much greater awareness and use of trauma informed approaches is required for all age groups, but especially crucial for children and young people.
Social Work Scotland is involved in the development of the national secure adolescent inpatient service in Ayrshire scheduled to start build in 2021. This resource will support a national network of clinicians providing more streamlined care pathways and management of some CAMHS referrals. However, this development will not address neurodevelopment disorders, learning disability and autism.
The current legislation does not work well for people with fluctuating capacity who fall between the various pieces of legislation. The person may be neglecting themselves, or displaying antisocial community behaviours, and could be using alcohol or substances. Obtaining medical evidence for lack of capacity is a problem if the person has capacity on their ‘good days’. We find that very few guardianship orders are tailored appropriately, tending to a shopping list of actions.
Of the five legal tests, there is no test for significantly impaired decision making (SIDM), which relies on the judgement of the clinician and MHO.
It is hard to argue against necessity when there is no community alternative available due to under-resourcing. This leads to detention that cause significant trauma for the person when a community alternative could ameliorate trauma.
As there are limited drug treatments for people with personality disorder, treatment protocol involves consistent care management plan for all professionals (including A&E) and family, with no deviation (so as to avoid use of manipulation by the person). Such protocols are very staff intensive and require highly effective and timely information sharing, and our experience is that they can break down readily due to lack of resourcing.
Some of regulation around specified persons has not kept pace of rapid expansion of digital platforms and social media. The legislation as it stands does not give the legal protection that should be afforded to restricting access to digital technologies.
The Act requires a local authority to provide services for people with a mental disorder who are not in hospital, which should be designed to minimise the effect of mental disorder on people and enable them to live as full a life as possible (sections 25 and 26 of the Act).
We do not consider that this requirement is met, and would argue for a greater focus on recovery. Medical provision in communities is overstretched and there are not enough students entering medical training.
Appointment scheduling is not supportive of community treatment for those on a CTO who are not taking depo medications. Section 112 (6 hour detention) can be used to support compliance and to assess and treat. We believe that this section is not being used effectively by community consultants. There is a tendency to wait too long, the person then goes into crisis, then a longer period of detention is required. This is not timely and not proportionate.
We hold that legislation should have a greater focus on human rights, linked to the well-intentioned principle of reciprocity. As we noted earlier in our response, it proves difficult if not impossible for frontline staff to exert influence on authorities due to budget constraints and competing demands of stakeholders. We would want to see greater understanding and focus on the well-established social determinants of health model, which takes a public health perspective on inequalities and human needs.
We agree that the law could and should support the rights and dignity of people with mental health needs. There has been a lack of progress in implementing short term fixes to Adults With Incapacity legislation, which we find disrespect of people’s rights.
Social Work Scotland supports the use of a short-term placement order, allowing the person to be removed to a place of safety until an urgent guardianship application could be progressed.
Lack of progress has led to unnecessary deprivation of liberty and unnecessary use of mental health legislation as only viable solution to what is a social issue. For example, a person with dementia may leave their home unaware of their safety, leaving their front door open. Adults With Incapacity legislation has no emergency provision for intervention in this case. Adult Support and Protection legislation may apply, but measures may not be appropriate, leaving the only available solution to have the person detained/admitted to hospital.
The three pieces of current legislation stand alone, lack effective overlap and do not align. It is not uncommon for people subject to mental health legislation also to be subject to adults with incapacity and adult support and protection legislation. We recommend that the Review considers streamlining and consolidating legislation.
Whilst we look with interest to the implementation of the Northern Irish approach to fused legislation, Social Work Scotland would support the development of pieces of discrete but well-aligned legislation.
The Adult Support and Protection (Scotland) Act (ASPA) is the safety net between adults with incapacity and mental health legislation but it does not give local authorities the power to protect particularly vulnerable people from the actions of others, for example when the person lives alone and is preyed upon by others.
ASPA does not interface effectively with other legislation. It is much wider in its scope that the MHA, and can be used as a triage mechanism for mental health legislation. We believe that if ASPA were better resourced, there would be a reduced requirement for Adults with Incapacity legislation and mental health legislation. ASPA provides the basis for effective risk management and a route to collective decision making. ASP inspections were largely positive in terms of informal partnership working.
AWI timescales currently allow for extensive periods of delay for private applicants to get powers in place, with no limit to how long private solicitors take. Legal Aid is an added issue. Although it is an entitlement, it can impact on the priority given by private solicitors.
There requires to be robust quality assurance in place for private guardianships. We see poor quality guardianships, consisting of copy and paste paragraphs, which are not personalised. Consideration could be given as to how support other agencies (third sector) to facilitate process.
Whilst we agree that powers for life should not be adopted for people whose condition is likely to change, but believe that courts could make indefinite orders in some case where the person is in later life with a lifelong condition.
In many instances, the problem is not in the fundamental legislation, but the way it is currently being used.
Social Work Scotland welcomes the move by the Scottish Government to make Powers of Attorney more straightforward.
The existing MHO contingent across Scotland is very committed and well-trained. However, as noted earlier in this response, the current funded complement of MHOs is not sufficient to work proactively in the mental health system. Scottish Government is currently providing funding to train up more MHOs where the shortages are most acute across Scotland, and we await progress with this initiative. There should be consideration of the model of MHO delivery across Scotland to ensure that MHOs are used to their best ability in statutory work, and there is a linked requirement to improve the availability of community resources to ensure that people do not reach crisis unnecessarily.
We have noted the shortage of trained medical professionals, but we also note that there are challenges in the demands on carers and on advocacy services. We consider that the lack of suitably trained professionals across the whole system is likely to impact on the success of more progressive mental health legislation, as will the lack of community resources. We feel strongly that the Review should look to implementation science to determine what it would take to deliver systemic progressive mental health policy across Scotland.
Social Work Scotland welcomes the human rights-based approach to the Review, but consideration must be given as to how this can be implemented in practice within a resource framework. Considerations should include: a strengthened duty on professionals to adhere to codes of practice for tribunals; consideration of means by which consistency of good practice can be met by solicitors acting in private applications for guardianships; consideration of a more defined test for incapacity; consideration to widening the professional groups who can attest to capacity to include psychologists, MHOs and social workers.
Social Work Scotland’s response to the learning disability and autism review supports the view that learning disability and mental health legislation should diverge. Consistency of approach is needed if the Review is considering merging legislation.
We suggest that consideration could be given to a singularlised suite of human-rights-based legislation in linked subsections, dealt with by one legal entity, incorporating the wider duties in relation to social support. The benefits of this approach would need to be measured against the disruption of extensive legislation change and consideration of its practical implementation and application.
Submission to IJB Chairs and Vice Chairs Executive Group
Submission from Social Work Scotland to IJB Chairs and Vice Chairs Executive Group
17 July 2020
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services. We are a key partner in the national Adult Social Care Reform Programme, creating an operational framework for Self-directed Support across Scotland supporting consistent delivery of social care that is personalised,
Social Work Scotland welcomes the invitation of the IJB Chairs and Vice Chairs Executive Group to respond to consultation around the strategic changes needed to sustain and take forward the care sector in the light of the experience to date of the Covid-19 pandemic.
You asked for our summary of the main points we think relevant as to how IJBs would revise or replace existing strategies or approaches to local delivery, and also to use your attached short questionnaire. You ask respondents to separate their views between:
a) The immediate focus of the Mobilisation Recovery Group (MRG), established by the Cabinet Secretary for Health and Sport and including representation from the IJB Chairs and Vice Chairs group, “to generate system wide input into decisions around resuming paused services” and
b) “Supporting continuing services for which activity has been intense, such as care homes and care at home services for older people throughout the pandemic”
Our first point concerns the scope of the intended IJB Chairs and Vice Chairs Executive Group submission. We believe this should also include NHS services, not only those subject to IJB direction, but also acute hospital inpatient services, such as intensive care, for which Covid-19 activity has also been intense. We also note that while all adult social care services are subject to direction by all IJBs, there are a number of H&SC partnership agreements that also include some children’s social
Secondly, it is widely accepted that IJBs must work with other agencies to be effective, and this is stated in your covering note which mentions IJB “central responsibilities to work in partnership as we commission, finance and monitor services as we move through and beyond this crisis”. However, while the questionnaire rightly mentions the Third Sector, there is no mention of local government, only “engagement with local communities”. Local government services – including housing, education, welfare services and rights advice, and other community services – all have an important role in promoting and sustaining health and wellbeing, and need to be taken into account and involved in IJB plans and proposals for changing “existing strategies or approaches to local delivery”. Our other main points are as follows:
Q1. Many innovative changes have resulted from a response to the COVID19 crisis. Within the IJBs scope of delegated responsibilities what consolidation of innovations would you want to see through the commissioning of services by IJBs?
In the Social Work Scotland response to the Scottish Parliament on the Social Care Inquiry in February this year, we put forward a strong position for sufficient funding to be made available to deliver models of care required to support population need, noting that increased budget constraints have led to tightening of eligibility criteria for social care support. Post-Covid, it will be crucial to model robustly what it will take to deliver national and local aspirations, and to manage expectations transparently.
Taking a human rights approach to care, commissioning should focus on the range of activity necessary for active citizenship: “including reducing isolation, supporting people to make and maintain friendships, promoting vocational skills, supporting people to develop and enhance life skills, promoting physical and mental wellbeing, and mitigating health inequalities”.
Personalisation and flexibility
During the pandemic, we saw a reduction in bureaucracy of assessment, care planning and budget allocation processes in some areas, which allowed for a more flexible and quicker response. Going forward, we would like to see a shift from traditional ‘care management’ approach in adult social work to more relationship-based practice with the supported people at the centre of decision making. Systems and processes would need to flow from that guiding principle.
Before the pandemic, we saw that many local policies and procedures were quite rigid around what could and could not be commissioned through a personal SDS budget. In some, but not all, local partnerships we have seen innovative flexible responses to need during the pandemic which are in line with both the letter and the spirit of SDS. In many cases, supported people have been allowed to use their personal budgets more creatively, for example, to employ family members, to purchase items of kit to enable physical activity at home, and to cover costs related to the pandemic.
People with lived experience of social care who are members of the SDS Collective have stated in their call to action that they are happier with a more flexible approach. In some cases the alternatives that people have chosen have proved to be less costly than the traditional models of respite and day care that
We note that the majority of pre-Covid local Commissioning Plans are weighted towards health-related matters and make little or no reference to personalised care and support. Social Work Scotland would support that the holistic person with the right to choice and control should be central to framing more personalised commissioning practices.
Specific asks are for:
Impact of Covid-19 on provider sustainability
Commissioning arrangement should explicitly set out issues/expectations related to infection control, recognising the continued presence of Covid-19. The mixed economy that residential and care at home operates led to there being differences in who could access essential kit, and payment of kit, training and advice was variable.
Q2. The ongoing criticism of IJBs is that transformation hasn’t been fast enough or innovative enough to date. How have IJBs been able to change, adapt and flex at a fast pace in response to the pandemic and how can this ability to design and implement change at pace can be continued? What has been different about how we have worked in the past 3 months that we can keep?
During the early stages of the pandemic, there was a clearly defined mandate, critical priorities and a common purpose shared by all partners. This imperative transcended many of the differences and challenges between partners for a period.
Research tells us that SDS can only be fully implemented if Chief Officers and other key leaders view it as a priority. During the crisis, examples of good leadership emerge and creative, solution-focused thinking was encouraged. We noted the following features:
Fast tracking of packages of care (POC) and commissioning the use of previously unused support services not on approved providers lists in order to meet needs and outcomes.
The crisis meant more dynamic appraisal of options and creation/acceptance of doing things differently, and a shift to more outcome focused approaches.
The usual patterns of care and support were temporarily altered with increased flexibility, increased personalisation, trust in communities to meet their own needs as people opted out of services and others asked for care to be reduced, and new models of community support emerged.
Issues around systems, processes and IT remained as barriers during the pandemic. Partners, whilst in integration arrangements, in the main still operate as separate organisations, with different digital infrastructure.
Through the pandemic, we have learned much about communicating in different ways, using a variety of digital platforms. We have seen good use of digital technology to connect with supported people, their families and other professionals. This has resulted in meetings being more accessible and time efficient, while often creating less intimidating and intruding spaces.
We have heard that many supported people prefer using technology to communicate where communication can be paced better for the supported person, be lighter touch and more frequent, rather than formal meetings. We are also aware of distinct benefits to children’s social work contacts where relationships have improved through use of digital platforms rather than face to face meetings.
Digital inclusion needs to be accelerated to ensure that people have access to technology and support to use it. Connecting with services, family and friends through technology has been critical during COVID. Use of web based information has been key but people have to be able to access this.
Q3. The advisory group on economic recovery has identified structure, funding and regulation as the main focus of a review of adult social care. What specific aspects of these areas would you wish IJBs to consider in relation to Care Home provision?
We understand that further national consideration is to be given to social care reform in the light of Covid-19, and Social Work Scotland looks forward to working collectively with Health and Social Care Scotland amongst other national partners.
While understanding why care home provision has been singled out, we also think that the IJB Chairs and Vice Chairs Executive Group’s submission should support the recommendations in the recent report by the independent Advisory Group on Economic Recovery, Towards a robust, resilient wellbeing economy for Scotland.
This report reminded readers that:
Adequate funding is the first requirement. Ten year of public sector austerity has severely reduced funding for local government in Scotland, and, while Councils have sought to protect social care, expenditure has fallen in real terms at the same time as the increasing numbers of older people, especially those aged 85 years and over, has increased the need for social work and social care services by 2.9% per year, according to figures in the Scottish Government’s 2018 Health & Social Care Medium Term Financial Framework (MTFF), which also gives a figure of 4% per year including pay and price inflation. Given the increasing care being provided by family members and other “unpaid carers”, it is vital that the Scottish Government adequately fund the Carers Act (Scotland) Act, especially in relation
The immediate need is to fund the on-going measures necessary to protect people and families who use services, and the staff providing services, from Covid-19 infection. That means sufficient PPE, regular live virus testing, and an effective test-trace-isolate system to prevent the spread of infection. The contract tracing human resources needed are significant and it is not always clear that the test-trace-isolate system is being delivered across Scotland at sufficient scale. Some follow-up on isolation advice is also needed so we know whether the advice is followed.
Scotland does not have ongoing random sampling for live virus in a Covid Infection Survey (similar to that being run in England from May 2020 in a joint project between ONS and Oxford University), but the recent Public Health Scotland of a pilot study of blood samples collected by regional laboratories for other clinical reasons might in future provide the firmer epidemiology necessary for current and
The other key early task is to stabilise the social care workforce numbers, currently 7.7% of Scotland’s workforce, given that current levels of recruitment from abroad will soon become impossible under the UK Government’s proposed post Brexit immigration policies. Since the mid-1990s, the largely female
Public recognition of this important work has grown very significantly during the Covid-19 crisis, and the time is right to increase wages and salaries. Clearly that will require significant levels of funding, and also legislation or regulation to intervene in the market – for example, it might be necessary to consider a Scottish Social Care minimum wage at a level above the current Scottish Living Wage.
All the above points about social care services as a whole, also apply particularly to care at home and to care homes. Many of the issues affecting care homes also affect sheltered housing schemes and housing with care schemes where there is a staff team working in shifts to provide care and support to frail older adults, and to other group living arrangements for supported adults who depend on external care
We need to understand how the very high Covid-19 deaths came to occur in care homes – 46.5% of all registered deaths in Scotland identified as involving Covid-19 by 5 July (weeks 15-27). Certainly, residents in care homes are by definition vulnerable populations with age-related (and in some areas, poverty-related) conditions that are associated with higher death rates from Covid-19. However, the
The care home sector is highly regulated but this did not protect care home residents during Covid-19.
Apart from the well-publicised shortage of PPE and testing, lessons need to be learnt from discharging patients with untested live virus from hospital to care homes because they were considered medically fit for discharge, where they passed on the virus to other residents and staff. The overriding focus on preparing acute hospital care for the expected large numbers of Covid-19 admissions without proper regard to the health and social care system as a whole has in England been partly blamed on the lack of integration of between the NHS and social care. In Scotland we consider ourselves further forward with integrating health and social care, yet the high death rate in care homes here does not indicate an
Lessons also need to be learnt in all parts of the UK from the cessation of normal NHS services to increase bed capacity for Covid-19. Some of the excess mortality in this period will be due to cancelled diagnosis and treatment for people with cancer, heart disease or other life-threatening conditions.
We think that it should be possible to vary registration requirements more quickly and responsively across the social care sector in order to support local need and personalised care arrangements.
Throughout lockdown, several local partnerships have offered a service for a critical few who have been assessed as needing respite during lockdown, using building bases and staffing models which have been fully risk assessed, and which maintain physical distancing and other infection control measures. These critical arrangements have been provided due to the high risk posed to specific individuals and their carers during lockdown. In some cases, these local arrangements have required variations to been made in the registration of building-based services. If these alternative, bespoke arrangements have been well received by people and carers, it is reasonable to imagine that they could continue beyond the pandemic.
More generally, there needs to be a shift of perspective around care home provision. Care homes should be viewed as a valued part of community provision helping to meet national wellbeing outcomes, in a spectrum of services supporting prevention, maintaining communities and increasing personalisation.
Care homes are often seen as a final destination when in fact they can be utilised very well as a form of step-down or rehabilitation provision.
There should be a wider focus on the whole system of care and support, with greater focus on early intervention and prevention such as intense care at home/rehabilitation services for people leaving hospital who might otherwise go into a care home.
Q4. It can be reasonably anticipated that there will be more care required in home or homely settings. The Third sector play a crucial part in IJBs achieving effective care in the community. How can IJBs ensure greater resilience of and contribution from the Third sector?
The third sector plays an important role, accounting for around 27% of Scotland’s social care workforce, according to the Scottish Centre for Employment Research (2018). However, a bigger role is currently played by the for-profit private sector. In a mixed economy, the balance between the public, voluntary, independent and private sectors need not be left to the market, but is a proper subject for public debate and democratic decision-making.
We know of positive examples of partnership working with the Third Sector throughout the pandemic, affording independent sector partners the ability to step up and step down support in a flexible way, which has increased trust, confidence and flexibility in how these partnerships work. We would support further learning through analysis of how this was achieved, the funding needed to deliver
Much has rested on the goodwill of communities being willing and able to support people in need, and we should aim to support this as we emerge from Covid-19. While checks and balances need to be robust there should be consideration of how we can reduce bureaucracy and make best use of available funding. Involving local communities in the process is a good starting point but supporting them to lead the process may be even better.
Social Work Scotland has learned that some local authorities have taken a community-led support approach, involving the contribution of third sector organisations, to supporting individuals with early intervention and prevention activity. These include Edinburgh’s Three Conversations Model and Health
By allowing people advice, information at the lowest level from third sector organisations and partners before establishing higher level needs, this has resulted in some issues being resolved quickly without lengthy waits for assessments or even the need for higher level care and or supports. Only those where it is established need higher level care and or supports are then referred into the normal SDS routes for social care.
In a community-led model, workers stick with people until an outcome is achieved. This prevents a person having to tell their story repeatedly to multiple organisations, and outcomes are tracked more easily.
Commissioning frameworks could be much less restrictive and more supportive of third sector/independent/ social enterprise inclusion. We would support clearer strategic links within Community Planning Partnerships and with Public Health Scotland, and closer involvement of TSIs within integration arrangements.
We would support greater use of Individual Service Funds (ISFs), so that the supported person is the commissioner of services, in particular care at home. In this way, the person can chose how, when, where and in what way their support is delivered.
We acknowledge that there is some financial risk in departing from traditional service models to new models that might initially be underused. We would support more discussion on how risk might be shared.
Q5. Engagement with local communities is a vital part of identifying how the powers vested in IJBs by the Public Bodies (Joint Working) (Scotland) Act 2014 can be tailored to support local need. What can IJBs do to better engage with the groups you represent?
Social Work Scotland would urge IJBs to engage with supported people and their carers to understand how people’s views have been shaped by their experiences of receiving care during the pandemic. In the aforementioned Social Work Scotland response to the Scottish Parliament on the Social Care Inquiry, we noted the strength of feeling across our membership:
This is all the more important as supported people’s experiences and views will have been shaped by their experiences of care during the pandemic.
Engagement with local communities is critical to help shape a broad sense of what types and qualities of care and support are required for a local population. However, engagement should not be tokenistic, and requires reciprocity. Too often third sector organisations feel they are used for all their knowledge, skills and ideas but with little return for them.
Generic engagement is not sufficient. Services need to be tailored to individual people not general populations, and requests made by individuals in their assessment and care planning should inform wider strategic developments.
East Ayrshire’s Thinking Differently approach has evolved a very open and transparent model where people with lived experience of social care actively involved in decision-making forums to drive improvement practice and contribute to decisions about budget spend. This approach goes beyond engagement to real involvement and empowerment of people accessing care and support services.
Consideration should be given to widespread use of remuneration and expenses for supported people and carer representatives where this does not routinely happen.
More focus should be put to achieving the intentions of the Community Empowerment (Scotland) Act 2015. Involvement of local community engagement teams and NHS, investment in TSIs and enterprise support organisations, involvement of local authority economic development, collaboration with funding
As mentioned previously, there has been an upsurge in volunteer activity at community level. We think it should be possible to attract volunteers into the social care workforce, and would support consideration of continuing post-Covid the national campaign, ‘There’s more to care than caring’.
Partnerships can engage and support the work of professional organisations that support their frontline and leadership workforces, such as the Scottish Association of Social Workers and Social Work Scotland. Professional organisations offer corporate memberships and opportunities to promote good practice and share communications. HSCS can ensure social work and social care professional associations are included as stakeholders with significant expertise which can help to improve consistency and quality of strategic planning.
Q6. Integration of Health and Social Care (HSC) staff is a key component of the successful deployment of the IJBs strategic aims. Do you have examples of where further levels of HSC staff integration would help you achieve your organisations aims and ambitions?
Social Work Scotland believes that there is much to be gained by the proper integration of health, social work and social care. However, this needs to be on the basis of a differentiated understanding of the principles and values of each profession, and consideration of retaining each profession’s unique contribution and impact within local integration arrangements.
Local partnerships should aim to work in ways that promote good relationships between specialists. People do not fit well into our traditional service silos. People have mental health issues also need support with their children, may be carers themselves and could have a physical disability or sensory impairment.
In some rural areas, NHS staff, local authority staff and third sector staff work as one team. The community nurse may carry out a social care task like giving the person a meal. A personal assistant is given instruction on how to apply a dressing by the nurse so that the nurse can attend to other patients in greater need of medical intervention. Volunteers provide older people with foot care support trained and monitored by the NHS podiatry services and delivered in a church hall once a week, allowing the podiatrist to attend to more serious cases. This type of blended approach requires flexibility to be built in to commissioning processes.
We see many instances where innovative service design is bolted on to more traditional bureaucratic systems and processes, which hinder the overall aim. We believe that the key ingredients to effecting sustained change are adaptive leadership, trusting relationships, confidence and putting the person at the centre of process and service design.
During the pandemic, arrangements were put in place and communicated very quickly but at times were very confusing. We can learn from this how communication can be improved between partners and key contacts identified to ensure routes to information, decisions and actions are clearer. Delegated
True partnership working encompasses whole system responsibilities. While SDS is the primary responsibility of social work, in reality SDS is about ensuring that those who need support get the right support at the right time in order to meet their identified needs. This should be a key priority for all and will be better achieved with real partnership working.
Q7. Data and information which help identify how best to deploy HSC resources are critical to direct these resources. Are there more effective ways in which information you hold could help IJBs monitor improvements in services delivered by HSC which support your organisation.
Currently there is no national requirement to capture outcomes achieved for adults and older people. There are however some local authorities who track outcomes achieved, not achieved and partially achieved for people and the success or failures behind each is used to inform staff learning and the improvement of services and targeting resources. An outcome approach can provide rich information to help target resources more effectively and more personalised to what matters to people. Following an outcomes approach allows clarification of what ‘good’ looks like.
There is a difference in resource allocation across client groups that does not comply with a rights-based approach. Algorithms underpinning Resource Allocation Systems favour younger adults over older adults, leading to some outcomes being unfunded or underfunded. In many cases, only critical personal
Data that is useful to improve frontline operations currently has less priority than aggregated performance management data, which we argue from an implementation perspective is not sufficient as little can be learned from it.
Much time and effort is spent on managing outdated information systems that do not link well around the person. It would be helpful to learn how well local data systems withstood the collation of information that was asked for during the pandemic, and how public and independent sector fared with this. We know, for example, that data requested from care homes during the pandemic put an extraordinary burden on managers at a critical time. To understand the purpose of and the use to which the collected data was put, whether there was a good shared understanding of what was required and whether the data gathered measured impact effectively; and to consider whether early data requests are feasible during an exceptional event like the pandemic and how accurate can they be.
For further information, please do not hesitate to contact:
[1 ]ARC Scotland Provider Forums COVID-19 meeting summary: March – May 2020
Covid-19 Workforce Plan Discussion Paper
COVID-19 WORKFORCE PLANNING FOR THE HEALTH AND SOCIAL CARE WORKFORCE IN SCOTLAND – MAY 2020
SUBMISSION FROM SOCIAL WORK SCOTLAND TO SCOTTISH GOVERNMENT
26 May 2020
We agree that workforce planning in the light of Covid19 must separately consider the immediate, medium term, and long term contexts and objectives. (para 7i). In Annex A, these are described as Respond, Recover, Renew.
Scotland and the rest of the UK is not yet at the end of the Respond period. While there is evidence that social distancing and lockdown has reduced the virus transmission rate, there are still new cases and fatalities especially in care homes and the community. A cautious and phased approach to lockdown remains essential but, despite improvements, this will be hampered by the insufficient supply of PPE for all who need it, by the current limitations on the volume of “test-trace-isolate” initiatives in the health and social care sectors.
Providing adequate support to NHS, care homes, home care, mental health, domestic abuse, financial support, food banks, volunteer coordination, and other essential services must remain the top priority of the Government, the public sector, and society.
It is not obvious how changing the Workforce Plan at national level can assist that work at local level. Rather we all need to learn from what has been done well and what hasn’t in the response so far to the virus.
Apart from the shortage of PPE and testing, lessons need to be learnt from discharging untested patients from hospital to care homes because they were considered “medically fit for discharge”, and its contribution to the high rate of death from Covid-19 in care homes. Lessons also need to be learnt from the failure of the NHS to meet normal demand while freeing bed capacity for Covid-19. Some of the excess mortality in this period will be due to cancelled diagnosis and treatment for people with cancer, heart disease or other life-threatening conditions. In both these cases, the lesson is that too narrow an understanding of “Protect the NHS” costs lives as well as saving others.
Health and social care integration requires both parts to be considered equally. While the current Integrated Health and Social Care Work Plan is a significant step forward, it is noteworthy that there are far fewer specific commitments relating to social care than health, despite the fact that their workforces are of broadly similar size.
We consider that additional resource is most likely to be required across mental health services for all ages, and across social care. The independent sector will require to adjust to the impact of Covid-19, and this will impact on capacity at local level and the support required from councils and partnerships.
We think it is too early to make significant changes to the Workforce Plan for the longer term, as the “Renew” landscape will be not yet clear. There is growing support in Scotland for a fundamental review of social care, including funding and care models, and that is something Social Work Scotland welcomes and will support.
There are some critical key questions whose answer will form the main parameters of the next phase:
The current Workforce Plan commitments were based on meeting identified needs, which have not gone away. The question now is whether there are more important Covid19-related priorities for the resources allocated to these commitments; if so, then the commitments should be deferred. We are sure that all stakeholders, especially Integration Authorities, Councils, and the NHS will already be acting pragmatically. Covid-related priorities must include restoring essential health and social care services for people on waiting lists whose diagnostic tests, assessments, treatments or support have been deferred, and for people who have not been referred not come forward because of current Covid19 priorities.
See the points made about information under questions (4) and (6).
Urgent consideration needs to be given to increasing the flexibility of the workforce to operate across health and social care sectors, and public and independent sectors, understanding that this will require regard to terms and conditions, training and professional registration.
The voice of people who use services should underpin assumptions about workforce demand across the system. The usual pattern of care delivery has been temporarily altered to a significant extent, as some partnerships have sought to reduce their volume of service delivery, some have restricted flexibility and some have increased personalisation. Some people have opted of their own accord to temporarily reduce their reliance on directly funded social care, due to risk of contracting Covid-19, others have been approached by partnerships requesting to reduce their POC, others have changed their Self-directed Support option in order to find the model of support that best suits them at this time. Preferences In short, their experiences are significantly different to what they were prior to the pandemic.
The experience and needs of the Personal Assistant workforce should be drawn out, as they are a small but crucial sector in the delivery of personalised social care.
Local governance arrangements require to be strengthened and closely aligned with national workforce priorities. The statutory role of social work needs to be accommodated in national and local workforce planning.
Lessons learned from the pandemic about effective use of flexible working, home and remote working, and the use of digital meeting platforms should be incorporated.
The role of the Scottish Government here is to support, with information, guidance, and resources, the relevant public bodies at local level. Many aspects of the current Workforce Plan will remain: we need to continue all the actions that ensure we have a well-trained, educated, and supported workforce at sufficient volumes to provide the services society requires.
We envisage the need for short-, medium-, and longer-term plans based on current knowledge and insight. As new service models emerge, based on changed requirements, and ideally evidence of “what works”, then the Plan can change accordingly. The possibility of further lockdown needs to be incorporated into planning assumptions.
New models of community supports need to be sustained to ameliorate the requirement for directly provided care, for example renewed consideration could be given to a Buurtzorg model of community support, and from the early adoption of Community-led Hubs (Health Improvement Scotland).~
One specific commitment needs some attention in any event. The first bullet in para 5 of the Discussion Document states you will “As a baseline, look again at the modelling and financial assumptions set out in the integrated workforce plan published at the end of 2019”.
This is welcome as there is some lack of clarity in the statistical information underpinning the current Integrated Workforce Plan:
Underpinning question 2. Is our concern that the staffing growth implied by the Scottish Government’s 2018 Medium Term Financial Framework has not been correctly stated in the 2019 Health and Social Care Workforce Plan, perhaps due to a statistical calculation error. For example, taking the Workforce Plan to the next stage would mean discussion of what kinds of health and social care staff are needed in the future, but if the national financial parameters are wrong, then that will impact negatively on that work.
The Integrated Workforce Plan would benefit from a dedicated page on the Scottish Government website. This should include key documents, any toolkits, useful contacts, links to other sites, etc. It should also include and Excel Workbook holding the relevant staffing statistical time series starting with the Plan baseline dates, by type of staff and setting, and updated regularly by NES and SSC, with a summary page for Scotland, and in time separate pages for each Partnership area. That would provide transparency about the actual direction of travel and enable more rapid monitoring of the Plan delivery.
Ideally, members of networks and stakeholder groups would be able to sign up on the website for email alerts to updates. Meanwhile communications can continue via email.
Housing to 2040
Housing to 2040: Consultation on Policy Options
SUBMISSION FROM SOCIAL WORK SCOTLAND, TO THE SCOTTISH GOVERNMENT CONSULTATION
27 February 2020
Social Work Scotland is the professional body for social work leaders, working closely with our partners to shape policy and practice, and improve the quality and experience of social services. We welcome this opportunity to comment on the draft housing vision for 2040 and the underpinning principles for future housing policy.
Q1. Earlier this year we published our draft vision and principles. Do you have any comments on the draft vision and principles? Please be specific and identify what you would change and why
Social Work Scotland agrees that a whole systems approach to housing is crucial, focused on ensuring holistic, rights-based support is available for individuals, children and families when they need it. Only in this way will Scotland enable people to live healthy, secure and productive lives, characterised by good relationships and sense of purpose.
We also strongly support the assertion that good housing has a substantial role to play in meeting the Scottish Government’s National Outcomes, including child poverty and homelessness. Indeed we believe good housing also supports priorities specified in the Adult Social Care Reform programme, specifically ‘places of care’ being encouraged as independent living in community settings.
We agree with the reflections made by Professor Clapham of the University of Glasgow, in his assessment of the principles as being vague and open to interpretation. In order to strengthen a whole systems approach to housing, we believe it is critical to give greater emphasis to the care and support priorities (tending towards prevention) rather than health (tending towards late stage interventions). Research into housing has long argued for ‘a social work approach to housing’, in recognition of the fundamental role that housing has on individual and community wellbeing. This was highlighted recently by the Independent Care Review, which had:
[…] ‘consistently heard that financial and housing support were some of the greatest concerns from children and families… when the economy hurts children and adults, and housing and social security systems fail to provide the protection from harm needed to compensate, increased pressures on family life can increase the odds of interacting with the care system.’
In addition to ‘rural proofing’ the vision and principles of Housing to 2040, we suggest that the care and support needs of ageing rural communities, isolated individuals and families (particularly in the Highlands and Islands) are considered in more detail. Social work and care will be central to supporting people to stay independent and well in suitable housing, so regardless of the built environment, infrastructure to offer social care services and support to individuals and families may be limited, or provided in alternative ways. Solutions which work in more urban areas or communities may not be appropriate in other areas, and the vision and principle (while striving for equality for individuals) should not dampen innovation and local adaptation (indeed it should encourage it)
Alongside ‘health’ we would like to see sustainable care and support identified as a specific driver for Housing to 2040. Social Work Scotland has been working with partners and the Scottish Government to look at key resourcing challenges facing social work and social care, and which are affecting both practice and future recruitment across the workforce. Our collective capacity to address poverty and child protection concerns (for which housing is also a key factor) was also raised in the Independent Care Review. Alongside the drivers identified for population and health, it is clear Scotland will continue to face rising demand for professional, skilled care and support, and without the sustainability of this provision, the success of this vision and its principles are unlikely to be met.
The principles 5, 13 & 14 have clear overlaps with the aims set out in the Scottish Government’s Adult Social Care reform programme. That programme states that [social care support] “is about supporting people to live independently, be active citizens, participate and contribute to our society, and maintain their dignity and human rights. Housing which meets the needs of our ageing population by location and accessibility, and which acknowledges the increase in single person households, is absolutely central to this. However, we feel that Housing to 2040 could be both more explicit and nuanced about the centrality of adequate housing in meeting the care needs (maybe even human rights) of people with dementia, complex physical disabilities, flexible care and support needs, and intergenerational families. Crucially, the ‘places of care’ identified in the Adult Social Care Reform programme should not necessarily be envisaged as care homes. Housing to 2040 is the place in which Scotland should articulate how it will enable people to stay in their own homes and communities for as long as it is in their best interests to do so, maintaining their relationships and identity, enhancing their wellbeing.
For reference, Architecture and Design Scotland have conducted extensive work on age friendly places and on redesigning town centres to provide opportunities for more intergenerational and inclusive living. Developing closer links between housing provision and social care, as identified in 1.5, may support this, and the vision overall should focus on building sustainable communities through an integrated, Whole System approach.
Finally, we would like to see the complexity of these issues better acknowledged in the constraints and principle section. Taking a Whole Systems approach is the right thing to do, but to be successful Housing to 2040 must surface and address the complexity head on, attending to the many interconnected and interdependent systems – health and social care (and within that, social work) being just one. Presenting the context as simpler than it really is will only increase the risk of failure.
Q2. Do you have any comments on the scenarios and resilience of the route map or constraints? These are set out in sections 3 and 4 of Annex C.
We note the financial constraints section of Annex C, and believe that it illustrates an inherent tension between the vision and reality. We would like to see more robust and data driven assessment to support some of the market-shaping principles particularly.
Under Constraints 4.3, we suggest that, rather than separating out ‘accessible and age appropriate’ homes, this specification be included into all future housing requirements, to reduce or remove the ‘bottleneck’ in access to appropriate housing, experienced by many people, and which has profound impacts on other parts of the system – health, education, social work and social care, criminal justice. Given the population projections for Scotland, housing accessibility will become a pressing concern before 2040.
A 2018 study undertaken by the Equality and Human Rights Commission found that ‘The need for accessible housing will increase as the population continues to age. In Scotland, the number of people aged 75 and over is projected to increase by 23 per cent between 2010 and 2020, and by 82 per cent between 2010 and 2035 (Scottish Government, 2011). The demand for wheelchair-accessible housing is expected to increase significantly: a projected 80 per cent increased in the population of wheelchair users by 2024, with an increase in unmet needs from 17,226 to 31,007 households (Horizon Housing, 2018).’ 
As colleagues from Inclusion Scotland often note, with increases in life expectancy and demographic trends, nearly everyone will be a disabled person for part of their life. To accommodate that future population, a focus on intergenerational and lifetime homes that are adaptable, flexible, inclusive and affordable must not just be part of the vision of Housing to 2040. It must be at its centre. Evidence from the University of Stirling’s 2018 Housing and Ageing report supports this approach and outlines some of the challenges in creating stronger links between health and social care and housing to support people more holistically.
Q3. Do you have any proposals that would increase the affordability of housing in the future?
Q4. Do you have any proposals that would increase the accessibility and/or functionality of existing and new housing (for example, for older and disabled people)?
Q5. Do you have any proposals that would help us respond to the global climate emergency by increasing the energy efficiency and warmth and lowering the carbon emissions of existing and new housing?
Q6. Do you have any proposals that would improve the quality, standards and state of repair of existing and new housing?
Q7. Do you have any proposals that would improve the space around our homes and promote connected places and vibrant communities?
We support the further development and incorporation of learning from Age Friendly Places, as published by Architecture and Design Scotland, and, as stated above, believe that a more holistic approach to community, incorporating accessibility and flexibility more unilaterally into the built and planned environment, will provide Scotland with a more equitable housing system in future.
Q8. Any other comments?
For further information, please do not hesitate to contact:
 STEWART, G., & STEWART, J. (1992). Social Work with Homeless Families. The British Journal of Social Work, 22(3), 271-289. Retrieved February 20, 2020, from www.jstor.org/stable/23709313
Financial redress for historical child abuse in care – pre-legislative consultation
PURPOSE AND PRINCIPLES OF THE REDRESS SCHEME
Yes, in general terms we agree with the proposed purpose of financial redress. However, in the drafting of the legislation we would encourage greater alignment with the wording used in the Limitation (Childhood Abuse) (Scotland) Act 2017, to ensure it is clear that the scheme applies only to individuals who sustained harm, rather than any child who was placed in a particular setting. Furthermore, the term ‘long term’ should be removed; ideas of what constitutes ‘long-term’ are contested (one month, one year?) and no clear definition exists or is likely to be agreed. The only relevant factors are that a child was placed in a setting by a public body (i.e. the state) and in that setting they suffered abuse. The length of time the child was in care should be immaterial.
If some version of the phrase “responsibility for the care of the child in place of the parent” is maintained in the description, it would be prudent to consider how the Redress Scheme will treat cases where institutions and bodies facilitated private arrangements within families, supporting relatives or family friends to provide care for the child in place of the parent. In these cases the state may never have assumed formal responsibilities for a child, but could still have had a significant role in determining with whom the child was placed; who may subsequently have subjected the child to abuse, or sent the child to a setting where they were subjected to abuse. While likely to affect only a few individuals, an equitable and effective Redress Scheme must be clear on how to treat these and other marginal cases.
2. Do you agree with these guiding principles?
Yes, we agree with the guiding principles proposed. But we feel that the list of principles should be extended further. Firstly, to include an explicit principle that individuals applying to the scheme are provided with specialised support from the start, designed to minimise the potential for future harm through the process (building on Principle 5), and also to ensure as strong an application as possible. This is to ensure equity of access to the Scheme, as some eligible individuals may have more experience, confidence, skills or support that others.
Secondly, while we agree the primary focus of the principles should be on the experience of the persons applying, we believe it would be helpful to have additional principles related to how public bodies and other organisations / institutions will be treated. For example, there could be a principle that the Redress Scheme will not put at risk services currently available to nurture and protect children looked after by Scottish local authorities. A clearer statement of how affected organisations can expect to be treated will not only help manage their engagement, it should improve transparency around a critical dimension of the Scheme for individual’s applying.
3. Do you agree with the proposed approach in relation to institutions and bodies having long term responsibility for the child in place of the parent?
No. As noted previously, the notion of what constitutes ‘long-term’ is subjective and contentious, and the phrase should be removed, in favour of simply “responsibility in place of the parent”. The factors which need to be established are whether institutions and bodies had responsibility for the child (in place of the parent) at the time abuse took place.
Similarly, we would recommend removing the term “morally responsible”. We assume this has been included to highlight that the state (through its institutions and bodies) had ethical and moral responsibilities towards the children in its care. However, in this context it appears both anachronistic and, possibly, trivialising of the extent of responsibility. We would favour instead “…and were legally responsible for their physical, social and emotional needs in place of parents” or “…and were practicably responsible for their physical, social and emotional needs in place of parents”.
4. Subject to the institution or body having long term responsibility for the child, do you agree that the list of residential settings should be the same as used in the Scottish Child Abuse Inquiry’s Terms of Reference?
Broadly, yes. The list of residential settings should be the same as used in the Scottish Child Abuse Inquiry’s Terms of Reference.
5. Where parents chose to send children to a fee paying boarding school for the primary purpose of education, the institution did not have long-term responsibility in place of the parent. Given the purpose of this redress scheme, applicants who were abused in such circumstances would not be eligible to apply to this scheme. Do you agree?
No. While we understand and broadly agree with the rationale for excluding from the scheme children who were placed in fee paying boarding schools by parents who were free to choose, the current wording does not take into account the complexity of the UK’s history or individual family situations. As a result, individuals may be unfairly denied access to the Redress Scheme.
For example, how should the scheme treat children who were sent to fee paying boarding schools because of the parent’s employment abroad for the state, such as in the military, as colonial officers, or on diplomatic missions? In some cases the state itself will have paid the fees for these boarding schools, either directly or through supplements to parents. In these circumstances, did the parent’s ‘choose’ to send their children to boarding schools? Furthermore, in such circumstances it may be argued that sending children to such schools was for not primarily for the purposes of education, but also of care.
Related to points already made, there may also be situations were institutions and bodies (of the state) facilitated the placement of children in fee paying boarding schools, securing the financial support of relatives to keep the child out of formal state care. The Redress Scheme does need boundaries, but it must also be flexible enough to take account of the immense variety and complexity of individual circumstances. That will require skilled professionals, supporting individuals with their applications from the very start. And where people / groups are excluded from the Redress Scheme, we should be confident that those individuals have recourse to redress through other means. (Even then, we are concerned about the potential disparity which may emerge between two school peers, both victims of abuse, but one able to access a supportive, person-focused Redress Scheme, the other only with access to the courts.)
Finally, if a version of this exclusion is adopted, it will be important to communicate that it does not apply to people who were directly placed in boarding schools by institutions and bodies who had parental responsibilities towards them.
6. Where children spent time in hospital primarily for the purpose of medical or surgical treatment, parents retained the long-term responsibility for them. Given the purpose of this redress scheme, applicants who were abused in such circumstances would not be eligible to apply to this scheme. Do you agree?
No. We are very uneasy about the exclusion of children who were abused while in hospital for the purpose of medical or surgical treatment, where parents retained ‘long-term’ responsibility for them. As with boarding schools, the lack of nuance here risks denying many individuals the right to redress for abuse suffered while in the care and protection of the NHS. It also insulates the NHS from appropriate accountability around how it fulfilled its responsibilities to the children in its care. We fully accept that local authorities had responsibilities towards children who were then victims of abuse, but that is equally true of hospitals and NHS Boards.
The primary consideration in determining eligibility should be whether the state had a significant role or power in determining the placement of the child, and when the child was in that placement, had responsibilities for their care and protection. A parent whose child requires medical treatment does not ‘choose’ to leave them in hospital; they follow the recommendations (and often decisions) or doctors. Nor does the parent remain totally responsible for the care and protection of the child over that period; the hospital (and NHS more generally) assumes responsibilities too. These dynamics are true today, but were perhaps even more of a feature in the past, where deferential attitudes towards medical professionals would have meant less challenge of their decisions, and where hospitals were less welcoming of parents and families (with strict visiting times, etc.). By any common sense account, children in hospital for medical or surgical treatment were (and are) in the care of the hospital and its staff. That should be reflected in the eligibility to the scheme.
By our understanding of this proposed eligibility criteria, if a group of children had suffered systematic abuse in a Scottish hospital (such as Jimmy Saville perpetrated in an English context) only those who had been formally ‘looked after’ by a local authority would be eligible to apply to the Redress Scheme. This does not seem fair on the victims (who may legitimately feel the hospital had responsibilities to keep the safe) nor on the local authorities and other organisations who will participate in the Redress Scheme.
7. We intend to use the same definition of abuse as the Limitation (Childhood Abuse) (Scotland) Act 2017 for the purpose of the financial redress scheme. This includes sexual abuse, physical abuse, emotional abuse and abuse that takes the form of neglect. Do you agree?
Yes. The same definition of abuse as the Limitation (Childhood Abuse) (Scotland) Act 2017 should be used for the purpose of the Redress Scheme. We also support the link to the Child Protection guidance.
In determining how specific applications to the Redress Scheme are handled, we believe the interpretation of this definition should be expansive, taking into account certain actions which do not correspond obviously to sexual, physical or emotional abuse. For example, in situations where there is inappropriate administration of drugs, whether as means of control or as part a fabricated induced illness.
8. In our view 1 December 2004 represents an appropriate date to define ‘historical’ abuse for this financial redress scheme. Do you agree?
Not sure. Any date is going to exclude people, however, in the interests of making the Redress Scheme as inclusive (and final) as possible, should we not set a date somewhere closer to the present? Particularly as the scheme is not expected to be in operation until 2021. Moreover, the rationale given for the December 2004 date feels weak; we are concerned that victims / survivors of abuse may not feel the date of a public apology is a sufficient milestone. Perhaps a more suitable alternative would be the start of the public inquiry, in 2015.
If the 2004 date is chosen, clear guidance on alternative routes to redress must be made available to those who suffered abused at a later date.
9. Do you have any comments you would like to make in relation to child migrants who also meet the eligibility requirements of this redress scheme?
We are supportive of the proposals around child migrants. It is both logical and fair that these individuals are considered eligible to the Redress Scheme, if they suffered abuse within Scotland while in the care of the state. This should apply even if they have also received or applied to the UK child migrant scheme.
10. Do you have any comments about the eligibility of those with a criminal conviction?
Criminal convictions should be no barrier to accessing the Redress Scheme. Eligibility should be determined by the circumstances of an individual’s childhood, not what the individual did or went on to do. We understand that for some it will be unpalatable to award financial payments to individuals convicted of offences (particularly sexual offences against children), but ultimately that is a political, presentational problem. The scheme can only live up to the principles on which is supposed to be based if it is open to all, irrespective of the actions of individual applicants. Moreover, if any restrictions were to be introduced, they are likely to be challengeable under the Human Rights Act 1998.
11. Do you have any other comments on eligibility for the financial redress scheme?
It may help if the eligibility criteria were clear on characteristics like citizenship. Our assumption is that the Scheme would be open to anyone who suffered abuse in Scotland while in the care of public bodies, regardless of their citizenship at the time or now.
We also recommend that powers be taken by Scottish Ministers to review and adjust eligibility criteria, and for these to be formally reviewed after the first couple of years of the scheme’s operation.
12. What options might be available for someone who has been unable to obtain a supporting document which shows they spent time in care in Scotland?
Those who are unable to produce documentary evidence of being “in care” are ineligible for an Advanced Payment; it makes sense that the full Redress Scheme mirror this. However, individuals applying to the full scheme should have the option to give evidence on oath, submitting an affidavit for determination.
Assuming that individuals will receive support with applications from the start, it may also be possible to triangulate from other documentary evidence, including individual’s personal records, to a high degree of certainty that an individual was at a particular place when abuse took place. This could be validated by a version of the ‘in care confirmation letter’ developed for the Advanced Payment scheme.
13. Do you think the redress scheme should have the power, subject to certain criteria, to require that bodies or organisations holding documentation which would support an application are required to make that available?
Yes. To deliver the Scheme efficiently and effectively relevant bodies and organisations should be required to provide information which would support an application. This power would replicate that of the Scottish Child Abuse Inquiry. It would also help ensure all relevant parties share the load of facilitating the work of the Scheme.
However, the provision of information is not a cost free exercise. In fact it can be a highly onerous one, and detailed consideration will need to be given to how organisations covered by this power are supported to undertake the work requested. Resourcing (human and financial) and imagination will be necessary. It could be worthwhile, for example, to establish within the Scheme’s statutory body a team of sufficient size that they can directly assist data / evidence providers (who otherwise may need to recruit and train additional staff). In all instances, adequate, realistic timescales must be given for compliance.
The key consideration for the design and management of the Redress Scheme must be that attention and resources are not diverted (more than is absolutely necessary) away from the current provision of services, and the support of children and adults (some whom may also be applicants). The redress scheme will be unsuccessful and self-defeating if it saps the strength of today’s public services, through the reallocation of money, or people’s time and energy. The operation of the Redress Scheme must be fully funded, including the cost requirements of local authorities and others, whose staff will be central to making the Scheme work.
14. For Stage One, what evidence do you think should be required about the abuse suffered?
For the Stage One payment, the evidential test should be the same as currently in place for the Advance Payment scheme. We should be confident that abuse did take place at an institution while the individual was placed there, but not need to have proof of the specific instances of the individual’s abuse. Individuals should be able to submit what information they see as relevant to assist their application, including a written statement, but it should not be required. Similarly, a short written description of the abuse and its impact should not be required; the Stage One scheme, as proposed, would not be about assessing the extent of impact, so this would not be relevant. The act of describing the abuse may also, in itself, be re-traumatising. It should be choice whether they wish to disclose this, as part of a Stage 2 application.
15. Do you have any additional comments on evidence requirements for a Stage One payment?
16. For Stage Two, what additional evidence of the abuse, and of its impact, should be required for the individual assessment?
17. Do you have any comments on evidence requirements for a Stage Two payment?
While the evidential test for a Stage Two payment should be appropriately more demanding than Stage One, the process for assessing claims must remain victim centred, flexible and focused on enabling and empowering an individual to secure redress (rather than meeting requirements or thresholds). This is likely to mean a process heavily dependent on skilled professionals and volunteers, including social workers, councillors, therapists, archivists, etc. That must be taken into account in the design of the scheme, and the structure and costs of the structure / organisation delivering it (e.g. a new public body).
18. Do you think applicants should be able to give oral evidence to support their application?
Yes. They should be able, but not required, to give oral testimony. They should have this option even if there is sufficient documentary evidence for their claim. This option should also be utilised where it is difficult to assess a case on the basis of available information.
19. Do you have any views on whether the length of time in care should be factored into the Stage Two assessment?
Length of time in care should be a consideration, but not a determinant or indicator of any impact. Being in care for two years and suffering abuse three times is not necessarily less significant than being in care for fifteen years and suffering abuse three times. Length of time in care should be something the professionals undertaking the assessment take into consideration, drawing on evidence about how individuals deal with trauma in different contexts, with different support structures, etc.
20. Do you have any views on the balance the assessment should give to different types of abuse (physical, emotional, sexual, neglect)?
Each case must be considered independently, and the focus must be on assessing the impact abuse had, whatever its form, on the individual. Establishing a hierarchy of abuse, as this question suggests, risks marginalising some victims’ experiences.
The process of assessment must be rigorous and forensic, but also sensitive and person-centred. It will not work if it becomes either a tick-box exercise or an opaque, subjective judgement. Maintaining the central, delicate balance will require very skilled professionals, using tools and their judgement, backed up by case notes and managers, and case discussions within small teams (to ensure individual assessors’ prejudices and assumptions are being challenged). Critically, individuals should have the right to appeal assessments.
21. What are your views on which factors in relation to the abuse and its impact might lead to higher levels of payment?
This should mirror the approach currently taken by civil courts.
22. Do you think (a) the redress payment is primarily for the abuse suffered; (b) the redress payment is primarily for the impact the abuse has had; (c) both the abuse suffered and the impact it has had should be treated equally.
It is unclear whether this question relates to Stage 1 payment, Stage 2 payment, or both. Assuming it refers to the Stage 2 payment, then its primary purpose is for the impact the abuse has had. The Stage 1 payment should be about acknowledging the abuse, and the second payment about its impact.
23. How do you think the scheme should ensure all parties are treated fairly and that the assessment and award process is sufficiently robust?
Again, the question is unclear about whether it applies all or part of the Scheme. Assuming that it refers to the Phase 2 payment, ensuring parties are treated fairly and the process is robust will depend on (a) the skills of the professionals undertaking the assessment, (b) transparency of the criteria being considered, (c) opportunities for review and appeal of assessment decisions, (d) strong structures of supervision for those undertaking assessments, (e) close work as a team to ensure consistency, and (f) constructive internal challenge.
Fairness is not something which can be baked into a system, or achieved through process or criteria. It is something experienced by individuals, and it will be determined in the relational space which the scheme’s employees offer. If individuals feel listened to and treated with respect, and that assessors took everything possible into account when making their judgement, and that decision makers give clear reasons for their judgement, applicants are more likely to feel the Scheme was fair, and accept decisions.
24. Do you agree that anyone who has received a payment from another source for the abuse they suffered in care in Scotland should still be eligible to apply to the redress scheme?
Broadly, yes, we agree that individuals who have received a payment for another source should still be eligible to apply to the Redress Scheme. However, the amount received should be deducted from any future redress payment. And where a court has made a determination about a previous claim, the Redress Scheme must handle applications very carefully, to ensure that an award does not contradict the court’s decision.
Our rationale for supporting this eligibility to the scheme is one of equity and fairness. We considered an example where two individuals experienced similar abuse, in the same institution, at a similar time. One of the individuals has successfully secured redress through the courts or another scheme, while the other chose not to. The latter individual now makes a claim through the Redress Scheme, and is provided with a more substantial award than that offered to the first individual. While we expect variance even between two very similar cases (due to variable impact of abuse), it does not seem fair that one is entitled to make the claim and the other excluded.
25. Do you agree that any previous payments received by an applicant should be taken into account in assessing the amount of the redress payment from this scheme?
26. Do you agree applicants should choose between accepting a redress payment or pursuing a civil court action?
Yes. We agree that applicants should choose between the two routes to redress. However, we do have some concern about the availability of quality legal advice to people having to make this decision, and the potential for individual’s to be exploited. There is already anecdotal evidence of some legal firms encouraging individuals to make civil claims (sometimes on a no win, no fee basis).
MAKING AN APPLICATION
27. We are proposing that the redress scheme will be open for applications for a period of five years. Do you agree this is a reasonable timescale?
Yes. However, it would be advantageous if the legislation permitted an extension of the scheme, with the approval of relevant stakeholders, if demand, logistics, etc. justified it. Furthermore, if there is to be a deadline for applications (e.g. five years after the scheme opens) it will be necessary to build in some form of public information campaign to ensure eligible people know and understand the deadlines.
It is also important that we distinguish the timeframe within which applications can be submitted, and the timeframe of the scheme and associated public body. Processing applications may take some time (well beyond the closing date of applications) and, moreover, it would be a lost opportunity if the public body did not complete some research and publications before it was wrapped up. Further communications around the Scheme should make clear that the public body may be in operation for longer than the Scheme itself.
28. Should provision be made by the redress scheme administrators to assist survivors obtain documentary records required for the application process?
Yes. However, in part this should be achieved by properly assessing and resourcing the archivist and data retrieval functions of data holders (such as local authorities). Ensuring that these organisations have the capacity needed to meet demand would achieve the same result, but also have many more attendant benefits (freeing up front line social workers, for example). Locally embedded capacity could also work in local projects around record retention and access more generally, and would hold out the potential for skills to be developed locally, rather than in a public body which will eventually be dissolved.
Should a national database be developed with admission and boarding-out-register data (as is currently being considered) there is an opportunity for the Scheme to access the data directly and where the person is discovered this will negate the need for further documentary evidence.
This will not fully negate the need for survivors to be assisted to access records though, and whether the necessary support is provided by the Scheme or other organisations, it should be a priority in both the legislation and implementation. And the support for survivors will need to go beyond practical documentary evidence gathering, extending to emotional and legal guidance too. The complexity – and cost – of providing such support should not be underestimated.
29. In your view, which parts of the redress process might require independent legal advice? Please tick all that apply.
30. How do you think the costs of independent legal advice could best be managed?
If it was possible, perhaps a measure of legal advice for free (provided by legal professionals employed or contracted by the statutory body). Then if an application is taken forward, this should be supported through legal aid (if the individual is eligible), with a cap on the maximum amount charged.
NEXT OF KIN
31. What are your views on our proposed approach to allow surviving spouses and children to apply for a next-of-kin payment?
Some provision for close, immediate family seems appropriate as a recognition on the impact the abuse may have had on the family. If the individual has died, the payment may also act as posthumous recognition of that individual’s experience.
It may the case that multiple family members may apply separately, but in our view only one payment should be available per survivor who has died. The Scheme will need to determine how a payment is then subsequently sub-divided between next-of-kin applicants.
We are supportive of the proposal to limit the next-of-kin definition to surviving spouses and children, as long as ‘surviving spouses’ includes civil partnerships and those who in long term relationships. Cases may become further complicated where ex-‘spouses’ feel justified to a claim on the basis that relationships with the abuse victim broke down in part because of the abuse the deceased individual had experienced. And there may also be difficulties with assessing the validity of children who were estranged (questions about whether the victim / survivor would have wanted them to receive funds), as well as those individuals who were not biologically or legally a victim / survivor’s children, but who were treated as such (e.g. children who grew up in informal kinship arrangements, with uncles, aunts, grandparents, etc.).
32. We are considering three options for the cut-off date for next-of-kin applications (meaning that a survivor would have had to have died after that date in order for a next-of-kin application to be made). Our proposal is to use 17 November 2016.
We do not have a firm opinion on this, but suggest that a single date be agreed to mark the various thresholds and cut-offs relevant to the Scheme. Previously we had suggested 17 December 2014, the announcement of the Scottish Child Abuse Inquiry.
33. We propose that to apply for a next-of-kin payment, surviving spouses or children would have to provide supporting documentation to show that their family member met all the eligibility criteria. What forms of evidence of abuse should next-of-kin be able to submit to support their application?
Next of kin applicants should have to provide the same proof as required by living applicants, as well as proof of their relationship. That should include any existing written documentary evidence of the abuse, and here necessary, written or oral testimony in support of their application.
34. What are your views on the proportion of the next-of-kin payment in relation to the level at which the redress Stage One payment will be set in due course?
35. We think those bearing responsibility for the abuse should be expected to provide financial contributions to the costs of redress. Do you agree?
Yes. Attributing responsibility for abuse will, in many instances, be complex and contentious. But, if we work from a position that certain parties had a responsibility to keep children safe and protected from abuse, we can build a framework within which relevant parties (i.e. those who should make a financial contribution) can be identified. This would include the government (now Scottish Government), local authorities and institutions.
Determining liability with regard to local government is likely to be very complicated, and we urge Scottish Government to work closely with COSLA and others to identify and properly stress-test different contribution models, before any legislation is introduced into Parliament. A suitable model can then be agreed in advance, supported by the relevant parties.
36. Please tell us about how you think contributions by those responsible should work. Should those responsible make?
No answer to this question.
37. Are there any barriers to providing contributions, and if so, how might these be overcome?
No answer to this question.
38. Should the impact of making financial contributions on current services be taken into account and if so how?
Yes. It is critical that the Redress Scheme does not impact detrimentally on current services. That most obviously includes those services available to today’s children and families, but also extends to the adult services (disability, drugs and alcohol, social care) which many victims / survivors will rely. If the Scheme was found to be negatively impacting on current services (for instance through reducing available funding), public support for the Scheme would likely wane, and it would potentially create risk within families.
In respect of how the impact on current services is monitored, individual organisations will have mechanisms for this, but there is also potentially a role for Audit Scotland and OSCR, keeping under review the financial statements of the organisations involved to ensure that changes in the availability of funding for certain services are flagged, and the reasons behind them interrogated.
39. What other impacts might there be and how could those be addressed?
Harder to identify than financial impact on current services, but possibly no less important, are the risks of vicarious trauma and burn out among the professionals supporting applications. We already have examples, driven by the demands of the Historical Abuse Inquiry and Advance Payment scheme, of resources having to be diverted, teams stretched, and individuals requiring time-off (due to over-work or discomfort with the material). Many people assume that identifying and processing records (i.e. for a Subject Access Request) is a purely administrative and bureaucratic exercise, but in reality it is one which exposes individual workers to stories of abuse and neglect. That exposure has an impact, and with the expected increase in requests for documentation which will follow the opening of the Redress Scheme, it will need to be properly taken into account.
40. How should circumstances where a responsible organisation no longer exists in the form it did at the time of the abuse, or where an organisation has no assets, be treated?
No answer to this question.
41. What is a fair and meaningful financial contribution from those bearing responsibility for the abuse?
No answer to this question.
42. What would be the most effective way of encouraging those responsible to make fair and meaningful contributions to the scheme?
No answer to this question.
43. Should there be consequences for those responsible who do not make a fair and meaningful financial contribution?
No answer to this question.
CONTRIBUTIONS TO WIDER REPARATIONS
44. In addition to their financial contributions to the redress scheme, what other contributions should those responsible for abuse make to wider reparations?
For the redress scheme to be more than just an acknowledgment of abuse, and for us to take this opportunity to address the harm done by the abuse and subsequent response (or lack thereof), it is critical that financial redress is just part of wider package of support.
In our opinion there should not be a distinction between the redress scheme and wider reparations. The Redress Scheme should cover all aspects, with financial awards representing one component. The financial contributions from relevant organisations and bodies would therefore be for the entire Scheme.
Within the package of wider reparations should fall the support provided (either directly by the Scheme or by relevant bodies and organisations) to applicants, such as help finding documentation, psychological support, etc.
DECISION MAKING PANEL FOR REDRESS
45. Do you agree that the decision making panel should consist of three members?
It is unclear again if the question is referring to a decision making panel for Phase 1, Phase 2 or both. If for Phase 1, then a three person panel seems excessive. An individual, suitably supervised and peer reviewed, should be sufficient. This would be in line with the current Advance Payment scheme. If the question relates to Phase 2 or both, we agree that the panel may consist of only three members. This is a fairly standard size for tribunals, and seems proportionate.
However, we think it should be clear that this panel will not be working alone, and that they will need to be supported by a range of professionals (employed directly or indirectly by the public body) whose purpose it is to support individuals with applications, assess the seriousness of impact (and validity of experiences, in some cases), etc. These professionals will play a key role in ensuring the information submitted to the Panel is as complete as possible, but they should also have role helping the Panel come to decisions (where necessary).
All processes, discussions and decisions of the Panel and supporting professionals should be recorded, transparent, accessible and challengeable.
46. Do you agree that the key skills and knowledge for panel members should be an understanding of human rights, legal knowledge, and knowledge of complex trauma and its impact? Are there other specific professional backgrounds or skills you feel are essential for the decision making panel?
Yes, agree with the proposed knowledge and skills. No, there are no other skills or professional backgrounds which need to be represented in decision making panel. But as noted in our answer to Q.45, the panel – and individual applicants – should be supported by other professionals, who can be called on to help plug gaps in knowledge and expertise. The skills necessary for this scheme to work well should not – and cannot – be contained within a small, three person panel.
47. We propose that a Survivor Panel be established to advise and inform the redress scheme governance and administration, ensuring survivor experience of the application process is considered as part of a culture of continuous improvement. Do you agree? How do you think survivors should be recruited and selected for this panel?
Yes. This would represent an important aspect of governance and continuous improvement, including rapid responses to challenges as they emerge. Survivor experience should also be reflected in the schemes overall governance (i.e. the Board).
Selection should be on the basis of open invitation and competition (on transparent criteria). Organisations should be encouraged to support members to apply. Representation should be broad enough to ensure all perspectives are being heard.
48. Do you agree that the financial redress scheme administration should be located in a new public body?
Not sure. The consultation document presents this as the only option, but for such an important decision it would be helpful if other options available were presented and evaluated (i.e. costs, benefits, risks, issues, etc.). For example, Social Work Scotland members have queried why the Redress Scheme cannot be located within the Scottish Courts and Tribunals Service, on the basis that it already has relevant expertise, and has judicial oversight and appeals processes built in. Others also raised concern that a new public body would not be seen as sufficiently independent of Scottish Government or local authorities, on whose resources the public body is likely to rely.
49. Do you have any views as to where the public body should be located and what it should be called? What factors should be taken into account when deciding where the public body should be?
We do not have views on what a new public body should be called, and the right choice of location(s) will be significantly determined by the public bodies’ functions. For example, if the public body is going to provide a structure for the provision of support services for victims, the body should perhaps have multiple locations across Scotland. Its headquarters could be in a significant town, easily accessible by public transport. Access for survivors and participating institutions, bodies and professionals should be the primary consideration.
50. How can survivors be involved in the recruitment process for these posts? How should survivors be selected to take part in this process?
Through the recruitment process there should be scope for survivors to interview and be part of the assessment process for panel members. Their feedback would provide an additional perspective which will ensure the people on the panel have good interpersonal skills, are empathic and personable. It may also help to run a national campaign inviting survivors to apply to be panel advisors.
There are strong parallels here with recruitment of panel members and senior staff at Children’s Hearings Scotland. Engagement and learning from CHS’ experience would be advantageous.
51. What are your views on bringing together the administration of other elements of a reparation package such as support and acknowledgement with financial redress? What would be the advantages? Would there be any disadvantages, and if so, how might these be addressed?
While we acknowledge the advantages of bringing together the administration of the wider reparation package (in respect of improved coordination, governance, efficiency, joint-working, single-point-of-entry, etc.), we have concerns about breaking the link for people with established local support services. As a result of the centralisation of support ‘under one roof ‘, funding for local services may be put at risk. These are services which have established relationships within local areas and with local areas, and which, if properly resourced and supported, may outlive the public body running the Redress Scheme.
Furthermore, many aspects of supporting individuals and facilitating applications are currently provided by local authority social work. The relationships local professionals have developed will be difficult to replicate quickly in a national body. Ultimately, individuals live in local communities, and will benefit from being linked into a web of support which is itself local and accessible.
For these reasons, while we do see the advantages of bringing administration together, the case for doing so must be very convincingly made, its potential benefits clearly outweighing its risks of disrupting the existing mix of local and national provision.
52. Do you agree that it would be beneficial if the administration of these elements were located in the same physical building? What would be the advantages? Would there be any disadvantages, and if so, how might these be addressed?
No answer to this question.
53. Should wider reparation be available to everyone who meets the eligibility criteria for the financial redress scheme?
Broadly, yes. Access to the wider reparations should be on the basis that the individual experienced abuse while in the care of the state, between certain specified dates. However, we would favour a more nuanced approach to determining access to support than the criteria set for eligibility to financial redress.
Support should begin from initial inquiry, and be available (if desired) in the preparing of applications for financial redress. By virtue of this though, it would not be possible to determine whether someone is eligible for wider reparations on the basis of whether they are eligible for financial redress, as this may not have been decided yet. It may be the case that an individual applications for financial redress is turned down, but that they receive a measure of support through the process, and access to other services.
54. Should there be priority access to wider reparation for certain groups, for example elderly and ill?
Yes. A form of triage and prioritisation will be important, to ensure those in most need, and those with life limiting conditions are responded to early. Each person applying for wider reparations should have their needs and context assessed appropriately.
55. If a person is eligible for redress, should they have the same or comparable access to other elements of reparation whether they live in Scotland or elsewhere?
Yes. However, the services should be made available in Scotland, and people’s actual access to it will be determined by their proximity to relevant offers (groups, etc.) or access to appropriate technology.
It would not be feasible to extend all aspects of the wider reparations to people living in other countries. They should equal right to access, but not have services taken to them.
ACKNOWLEDGEMENT AND APOLOGY
56. To allow us more flexibility in considering how acknowledgment is delivered in the future, we intend to include provision in the redress legislation to repeal the sections of the Victims and Witnesses (Scotland) Act 2014 which established the National Confidential Forum. Do you have any views on this?
In our view the powers should be taken. The decision whether to use them should be considered further, but it is important that Scottish Government and its stakeholders have the ability to make changes in the future, if so decided.
57. Do you have any views on how acknowledgment should be provided in the future?
58. Do you think a personal apology should be given alongside a redress payment? If so, who should give the apology?
No answer to this question.
59. Do you think there is a need for a dedicated support service for in care survivors once the financial redress scheme is in place?
Yes. There is a need for a dedicated support service with a single point of entry and access to multi-agency services. Care experienced people who are no longer receiving services, and who are or wish to access their records, are a high-risk group who must be considered within the scope of these services. Moreover, for some survivors they will already have a key person who is offering support, and any development of dedicated service will need to take account of and incorporate these existing relationships.
We think it is odd that these questions of support have been located outwith the sections of the consultation concerned with wider reparations. In our view it is a mistake to separate these things out. The provision of high-quality, person-centered support (including but not limited to assistance in making applications for financial redress) represents reparation. Making amends for failures in the past by ensuring that today eligible individuals have access to all the support they need. Indeed, the Redress Scheme should be constructed with a view to the Self-Directed Support (Scotland) Act 2013, providing people with control over how they wish to direct and receive support. (In contrast to a national public body commissioning services which victims / survivors then have to ‘fit’ into.)
60. Do you have any initial views on how support for in care survivors might be delivered in Scotland, alongside a redress scheme?
Please see answers to earlier questions.
For further information, please do not hesitate to contact:
Director, Social Work Scotland
Consultation Response: Public Health Scotland
Consultation response: Social Security Disability Assistance
Consultation Response: Transforming Parole in Scotland