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DateTitleDownload
03/09/2020

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.

  • The Mental Health (Care and Treatment) (Scotland) Act 2003 (“the Act”) came into force in 2005 – how well does it work at the moment? In answering this it would be helpful to us if you could consider the following:
  • how well the Act helps people to get the right care, treatment and support
  • how well the Act protects people’s human rights (Please see the start of the paper for the human rights we think are most relevant here)
  • how well the Act maximises a person’s ability to make their own decisions and give effect to them
  • how things have changed since the Act came into force in 2005
  • Are there certain things that hinder the Act from working effectively? What would improve things?

 

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[1].

We draw the review’s attention to our response to the recent Social Care Inquiry[2] 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.

 

Integration context

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[3] 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[4] 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[5] was explicit in finding that a shortage of Registered Medical Officers impacted detrimentally on the patient’s journey.

 

Inpatient resources

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.

 

Specialist resources

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.

 

  • Are there groups of people whose particular needs are not well served by the current legislation? What would improve things?

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.

 

  • The Act has a set of legal tests to justify making someone subject to compulsion. Would you suggest any changes to these? In answering this, you may wish to think about how practical the tests are to apply and how fair they are to different groups, including people with different diagnoses.

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).

  • Do you think this requirement is currently met? Does more need to be done to help people recover from mental disorder? You may wish to provide an example or examples.

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.

 

  • Does the law need to have more of a focus on promoting people’s social, economic and cultural rights, such as rights relating to housing, education, work and standards of living and health? If so, how?

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.

 

  • Do you think the law could do more to raise awareness of and encourage respect for the rights and dignity of people with mental health needs? The Review is also looking at the way people with a mental disorder are affected by the Adults with Incapacity (Scotland) Act 2003, and the Adult Support and Protection (Scotland) Act 2007.

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.

 

  • Based on your experience, are there any difficulties with the way the 3 pieces of legislation work separately or the way they work together? What improvements might be made to overcome those difficulties?

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[6] 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.

 

  • Is there anything else you wish to tell the Review? Please fill in the box below with your contribution. There is no restriction to the length of your statement. You may submit additional pages by post or use the text box below, or submit written submissions by email.

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[7] 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[8] 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.

 

[1] https://www.audit-scotland.gov.uk/report/self-directed-support-2017-progress-report

[2] https://socialworkscotland.org/consultation/social-care-inquiry/

[3] https://independentinquiry.org/wp-content/uploads/2020/02/Final-Report-of-the-Independent-Inquiry-into-Mental-Health-Services-in-Tayside.pdf

[4] https://socialworkscotland.org/wp-content/uploads/2018/05/TheMentalHealthOfficer_capacitychallengesopportunitiesandachievements.pdf

[5]  https://independentinquiry.org/wp-content/uploads/2020/02/Final-Report-of-the-Independent-Inquiry-into-Mental-Health-Services-in-Tayside.pdf

[6] https://www.careinspectorate.com/images/documents/4453/Review%20of%20adult%20support%20and%20protection%20report%20(April%202018).pdf

[7] https://www.celcis.org/knowledge-bank/search-bank/active-implementation-hub/

[8] https://socialworkscotland.org/consultation/independent-review-of-learning-disability-and-autism-in-the-mental-health-act/

12/08/2020

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,
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.

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
work services and criminal justice social work services, which have also been affected by Covid-19 related issues.

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
Personalisation is at the heart of good social work, and is the guiding principle of Self-directed Support (SDS) policy and legislation. Under SDS, people can choose from four options designed for maximum 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
they had before. ARC Scotland have reported that some supported people would not be keen to return to these traditional models of care and support [1].

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:
 Inclusion of community-led services and supports, including local micro providers, on the future commissioning framework.
 Continued investment in local relationships which have been developed between HSCPs and providers during Covid-19
 Investment in home-based rehabilitation/ interim care for older people.
 Review of local interpretation of eligibility criteria and charging policies.
 Flexibility to be embedded more fully and permanently in standard procedures.
 Support from national regulators for flexible innovation.

Impact of Covid-19 on provider sustainability
We note a range of factors that impinged on providers during the pandemic. Availability of sustainability funding, testing regimes, availability of PPE, data reporting arrangements and oversight arrangements contributed to real strain on providers at a time when they were experiencing significant challenges in
maintaining person-facing care and support.

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.
 Encouragement to use SDS creatively and differently. Better focus on getting the right support to those who need it as soon possible.
 More joined-up work with the third sector that has been truly collaborative.

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?
(i) Structure
(ii) Funding
(iii) Regulation

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:

Scotland’s social care sector employs 200,000 people […] and has a financial value to the Scottish economy of over £3 billion. But care is not only a vital contributor and support to the economy: much more than that, good quality, safe, supportive and effective care is essential to our society. (p51)

Before the crisis, the sector was confronted by major challenges in relation to procurement of services from public authorities; to the recruitment, retention and pay of its workforce; and to the longer-terms sustainability of its funding, and indeed its entire business model. The crisis has only sharpened the nature of these challenges: but it has brought home to us how precious a function the care sector provides for us all. Care homes in particular have truly been at the front line in the crisis; we must make sure that, as we come out of the immediate emergency, Scotland takes action to strengthen the capacity and sustainability of the care sector as a whole. (p51).

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
to replacement (respite) care. (Social Work Scotland can provide a briefing note on this, if required).

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
future planning at national and regional level.

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
workforce has been increasing privatised, low-paid and often with poor pension and other conditions of service. Staff turnover and vacancies levels are high. According to the Fair Work Convention, nearly 20% of social care workers are not on permanent contracts.

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
workers for support. Such establishments should be included in ongoing pandemic and winter planning.

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
viral infection has to get into care homes for these factors to apply.

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
integrated system. It also raises questions about governance, if, as seems to have been the case, these decisions did not come through to IJBs.

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
partnership collaboration, cost effectiveness for support delivery and opportunities for continuing these partnerships.

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
Improvement Scotland’s Community Hubs in 9 test sites across Scotland.

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:

“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 social care is older people with personal care needs due to frailty or long-term conditions and people with physical disabilities, with other experiences not well supported including mental illness, learning disabilities, alcohol and drug addiction, domestic abuse, families at the edge of care, care experienced children and young people, people vulnerable to abuse and those in our justice system, who tend to come from communities experiencing the greatest health and social deprivation”.

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
bodies are all features supportive of achieving the requirements of the Act. Local elected members are influential in this regard. Good communication with elected members on the benefits and opportunities of community empowerment and building trusting relations could enable a power shift to community led approaches.

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
responsibilities were not always clear and this led to delays in decisions or progressing actions.

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
care needs are resourced.

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:
Dr Jane Kellock
Head of Strategy, Social Work Scotland
jane.kellock@socialworkscotland.org

[1 ]ARC Scotland Provider Forums COVID-19 meeting summary: March – May 2020

12/08/2020

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

 

  • Do you agree with how we propose to develop new assumptions and the evidence base? Do you have any alternative or additional suggestions that we should consider?

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.

 

  • What should we do about our existing Integrated Workforce Plan and workforce commitments?

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:

 

  1. Does exposure to the virus create immunity, and if so, for how long?

 

  1. Will an effective vaccine to Covid19 be found soon, and be produced at scale and reasonable cost to governments, so that it can be used world-wide?

 

  1. Will the virus mutate, either to a new equally virulent form, or, like the common cold, to a much less harmful form?

 

  1. Can PPE be produced, purchased and distributed in larger volumes to meet all needs for protection?

 

  1. Can the testing for live virus be massively increased, with associated contact tracing, so that people infected can be isolated, and transmission stopped? Health and Care staff, and the people using their services need such testing frequently. The contract tracing human resources needed are significant and in need of planning.

 

  1. Can the random sampling for live virus, which has only recently started in England (in a joint project between ONS and Oxford University), be increased to show the variation around the average prevalence (currently 1 in 400) between different areas of the UK, and urban versus rural areas, in order to provide the firmer epidemiology necessary for current and future planning?

 

  1. Can this random testing be combined with antibody testing to provide evidence of re-infection rates and possible “herd immunity”, also needed to provide the firmer epidemiology necessary for planning renewal?

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.

  • How do we best manage workforce planning as a whole-system endeavour, across the integrated health and social care landscape?

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.

  • What kind of workforce plan do you think will be required to cope with rapidly changing circumstances throughout the pandemic and after?

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).~

  • Are there any assumptions you would add?

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:

  1. The numbers of combined health and social care are given on page 8 of the Plan as “over 368,000 headcount” and “291,000 Whole Time Equivalent”. These are said to be the most up to date available data, but no weblinks are given. The “as at” dates are not given for these baseline staffing numbers; the counts are not given separately for NHS and Social Care, as they need to be; and it is not clear whether  any categories of NHS or social care staff been excluded from any of these counts (eg staff at the State Hospital).

 

  1. Page 8 of the Plan states that “The Scottish Government’s Medium Term Financial Framework (MTFF) estimates that to address the effects of demand, we will require 1.3% per annum more NHS employees and 1.7% per annum more social care employees in the period to 2023/24”. We could not find that information in the Health and Social Care MTFF published in October 2018,  which refers to annual growth rates of 3.5% in demand for health services and 4% for social care (H&SC MTFF pages 10 and 11). However, these are the total expenditure growth rates required to 2023/4, and include pay and price rises and other non-demographic factors.  If we strip those out using the data in Figure 8 of the H&SC MTFF, then the average annual growth required in activity year on year becomes 2.9% for social care and 2.4% for health.  That is still a lot higher than the 1.7% and 1.3% figures. Could we please be provided with a table showing how these staffing increases in the Workforce Plan relate to the H&SC MTFF financial projections?

 

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.

 

  1. Page 9 of the Plan includes a chart showing how “assumed demand” will increase total WTE staffing from the baseline of 291,287 WTE, to 310,758 WTE by 2023-24, before “mitigations” bring this down to 301,808. No figures are given for the elements of increased demand, or for the individual mitigations, which also should be separated between NHS and Social Care – otherwise there is no clarity.
  • How would you prefer to be updated on progress with this 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.

27/02/2020

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[1] 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[2]. 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’[3], 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.’[4]

 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[5]. 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[6], 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[7]. 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[8].  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[9]  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[10] 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’[11] 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).’ [12]

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[13] 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?

N/A

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)?

N/A

 

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? 

N/A

Q6. Do you have any proposals that would improve the quality, standards and state of repair of existing and new housing?

N/A

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[14], 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?

N/A

 

For further information, please do not hesitate to contact:

 Flora Aldridge
Communication & Events Manager, Social Work Scotland
flora.aldridge@socialworkscotland.org

[1] https://www.gov.scot/publications/housing-to-2040/

[2] https://housingevidence.ac.uk/wp-content/uploads/2019/12/191205-housing-visions-2040-DC.pdf

[3] 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

[4] The Promise: https://www.carereview.scot/destination/independent-care-review-reports/

[5] https://www.iriss.org.uk/resources/insights/rural-social-work-scotland

[6] https://socialworkscotland.org/statement-on-resources/

[7]The Promise: https://www.carereview.scot/destination/independent-care-review-reports/

[8] https://www.gov.scot/policies/social-care/reforming-adult-social-care/

[9] https://www.ads.org.uk/age-friendly-places/

[10] https://futurecities.catapult.org.uk/2019/05/14/blog-systems-thinking-and-housing/

[11]  https://www.equalityhumanrights.com/sites/default/files/housing-and-disabled-people-scotland-hidden-crisis-long-summary.pdf

[12] IBID

[13] https://www.housinglin.org.uk/_assets/Resources/Housing/OtherOrganisation/HousingAndAgeingReport.pdf

[14] https://www.ads.org.uk/age-friendly-places/

27/11/2019

Financial redress for historical child abuse in care – pre-legislative consultation

PURPOSE AND PRINCIPLES OF THE REDRESS SCHEME

  1. We are considering the following wording to describe the purpose of financial redress: “to acknowledge and respond to the harm that was done to children who were abused in care in the past in residential settings in Scotland where institutions and bodies had long-term responsibility for the care of the child in place of the parent”. Do you agree?

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.

ELIGIBILITY

 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.

DEFINING ABUSE

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.

EVIDENCE REQUIREMENTS

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?

No.

16. For Stage Two, what additional evidence of the abuse, and of its impact, should be required for the individual assessment?

  • Any existing written statement from another source which details the abuse in care? Should be encouraged to submit, not required to.
  • Oral testimony of abuse and its impact? Should be an option if people wish to, but not a requirement. See answers below.
  • Short written description of the abuse and its impact? However, the notion of ‘short’ is imprecise. The requirement should be on providing sufficient detail, not length. See below.
  • Detailed written description of the abuse and its impact? However, the statement should be able to be provided by a third party (i.e. a family member, friend, professional), or through the provision of specific support for the individual, with the production of this statement as its aim.
  • Documentary evidence of impact of the abuse: Existing medical and/or psychological records? New medical and/or psychological assessment? If no prior records exist, yes.
  • Supporting evidence of the abuse/impact from a third party? Should be encouraged to submit, but not required to have such evidence

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?

Yes.

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.

  • In making the decision to apply? If there are legal consequences associated with receiving a scheme redress payment, then legal advice should be available at the outset, as the process of applying will not be entirely cost free.
  • During the application process? Do not necessarily think it would be required often, but on the basis that in some circumstances it may, it should be available.
  • At the point of accepting a redress payment and signing a waiver?

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?

50%

FINANCIAL CONTRIBUTIONS

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.

PUBLIC BODY

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.

WIDER REPERATIONS

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?

No.

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.

SUPPORT

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:

Ben Farrugia

Director, Social Work Scotland

ben.farrugia@socialworkscotland.org

 

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