Dear Convener,
National Care Service (Scotland) Bill (Stage 2) - Amendments
The Equality and Human Rights Commission (The Commission) welcomes the opportunity to respond to the Health, Social Care and Sport Committee’s consultation on the National Care Service (Scotland) Bill – Stage 2 Amendments.
We responded at length to the initial Scottish Government consultation on the National Care Service Bill in October 2021, as well as to the Committee’s initial scrutiny of the published Bill in September 2022. We also published a parliamentary briefing ahead of Stage 2 of the Bill process in March 2024, outlining our recommendations for amendments to the primary legislation. We have considered the published draft amendments in the context of our previous recommendations set out below.
National Care Service Strategy
The meaningful involvement of people with lived experience of using the social care system in the creation of a National Care Service Strategy is vital to ensure it is robust and impactful. This should be reflected in the duty to consult members of the public on the National Care Service Strategy, as set out in the proposed amendments, ensuring that social care users and disabled people are meaningfully involved in the consultation process and represented adequately as respondents. This good practice approach would support compliance with the PSED.
Equality Impact Assessments (EIA) should be carried out at the beginning of the development process of any new strategy or policy to ensure that public bodies anticipate the needs of equality groups when making decisions about projects, policies or services.
The Scottish Government should adhere to regulation 5 of the Scottish specific duties in its entirety by commencing the EIA process at the developmental stage of a National Care Service Strategy, publishing the results of the equality impact assessment in good time, defining the review process so that oversight of the actual impact / effectiveness of the strategy can be maintained, and arranging to review and, where necessary, revise policies.
Future reviews should reflect on the opportunities afforded by Equality Impact Assessments in terms of engagement with protected characteristic groups, which helps to provide the relevant evidence required by Regulation 5 of the Scottish specific duties.
In reviewing, the Scottish Government should consider that different methods of communication are likely necessary to engage hard to reach groups, and that engagement processes also need to take account of the duty to make reasonable adjustments as per Section 20 of the Equality Act.
Principles
We previously welcomed the commitment to a stand-alone principle on advancing equality and non-discrimination, while highlighting that it would not itself be sufficient to achieve the significant improvements that are needed in terms of compliance with the existing legal framework, and ensuring any new system has equality embedded in its functions.
We welcome the Section 1 amendment which goes further, setting out that services provided by the National Care Service “should be centred around addressing individual needs, recognising the diverse characteristics and circumstances of the individuals to whom the services are provided”.
While we welcome that Fair Work is mentioned in the principles section, it should be more clearly defined within primary legislation to ensure this is implemented within a National Care Service. This is particularly important given the equality considerations of the social care workforce, which is predominantly female dominated, and current workforce issues which are well documented, including in our recent Inquiry into Racial Inequality in Health and Social Care Workplaces (2022).
As we made clear in our parliamentary briefing ahead of Stage 2, there already exists an extensive evidence base and clear recommendations on how to ensure Fair Work in Social Care services.
The Bill should reflect a minimum standard for Fair Work, if not in the Principles of the Bill, in a wider section of the primary legislation.
New National Care Service Board
Our Stage 2 parliamentary briefing recommended that there should be a commitment to representation of lived experience and groups most likely to access social care on the National Care Board.
Public boards should be diverse and represent the communities they serve. The arguments for diverse and inclusive boards are well established. Particularly in the case of a National Care Board, having diverse representation from groups most likely to access social care and lived experience is vital to ensure it is meaningful, impactful and effective in decision making.
We are pleased to see this commitment included in primary legislation. The involvement of social care users in this oversight board will be vital to improve the experiences of social care in Scotland. Having diverse representation from groups most likely to access social care and lived experience is essential to ensure the new National Care Service Board is meaningful, impactful and effective in decision making.
Compliance with the Public Sector Equality Duty (PSED) and Scottish specific equality duties will drive progress in ensuring non-discrimination, equality and good relations is integrated into the day-to-day business of public bodies responsible for social care delivery, including local authorities, Scottish Government and any new National Care Service Board.
National Chief Social Work Adviser and National Social Work Agency
Any new public body, such as a National Social Work Agency, should be listed for the Public Sector Equality Duty (PSED).
The primary legislation does not make it clear how a National Chief Social Worker Adviser (NCSWA) and National Social Work Agency (NSWA) will be created or function meaningfully within a National Care Service.
Involving the workforce, trade unions and lived experience of those accessing social care at the development stage will help ensure a NCSWA and NSWA are in a position to deliver on the principles of the National Care Service Bill. This good practice approach would support compliance with the PSED.
National Care Service Charter
We welcome the changes in the National Care Service Charter that reflect the Commission’s input to its development.
We support the commitment to centre rights within the Charter, as well as stating that individuals have rights to be treated without discrimination when accessing the National Care Service, noting the explicit reference that an individual must not be treated unfairly due to any protected characteristic they may have and naming these within the Charter as described within the Equality Act (2010). This is important in ensuring that the Charter reflects existing rights.
Moreover, we welcome the commitment on rights to information on independent advocacy reflects that it can be a vital reasonable adjustment for disabled people accessing services. The Charter, in its current draft, is clear on the benefits of advocacy, as we outlined in our recent research paper ‘Challenging social care decisions: Survey of local authorities in Scotland’ (2023).
We recommend an amendment within primary legislation to introduce the statutory right to independent advocacy. This will improve the Charter and the rights of disabled people to access and make better decisions about their care.
Statutory Right to Independent Advocacy
Free, independent, and accessible advocacy is vital to ensure disabled people can access their rights and get support through the social care process, including the complaints system. Independent and specialist advocacy can also be an important reasonable adjustment to ensure everyone can access services equally.
The Scottish Government and Local Authorities are both required under Section 20 of Equality Act (2010) to provide reasonable adjustments for those accessing their services to ensure everyone can access them equally and without discrimination.
Our recent research paper ‘Challenging social care decisions: Survey of local authorities in Scotland’ (2023), based on the lived experience of 18 people who volunteered to participate, made clear that experiences of the current system of challenging decisions are broadly negative.
In addition, we have found that not everyone was aware they could challenge decisions, and even if they were aware, they did not know how to go about it. Some also feared they would face negative consequences if they challenged a decision within their local authority.
Within this study, participants saw advocates as the best way of getting help to challenge a decision about social care. Advocates brought knowledge, clarity, emotional detachment, and energy to both the informal and formal complaints processes.
The independency of advocates is vital here to ensure impartiality, fairness and to reduce the fear of retribution felt by social care users for making a complaint or seeking advice on challenging a decision within their local authority.
In relation to social security benefits, the Scottish Government has already recognised the need for free, independent advocacy to make sure disabled people who need support to communicate their needs get the support they are legally entitled to.
An amendment within this primary legislation, should include this statutory right to independent advocacy, similar to what was laid out in Section 10 of the Social Security (Scotland) Act.
If helpful the Commission would be pleased to discuss our comments or previous submissions with the Committee.
Yours sincerely,
John Wilkes
Head of Scotland
