In my fourth article in this series I am looking at the UK Government’s decision to withhold Attendance Allowance funding when the then Scottish Executive decided to introduce its policy of Free Personal and Nursing Care (FPNC).

First thing’s first.  What is Attendance Allowance?.  Attendance Allowance is a tax-free benefit.  You may get Attendance Allowance if you’re aged 65 or over and need help with personal care because you’re physically or mentally disabled.

A reminder of what the 2007 Sutherland review of FPNC recommended on this issue:

“Address imbalance in funding streams.  The UK Government should not have withdrawn the Attendance Allowance funding in respect of self-funding clients in care homes, currently amounting to £30 million a year.  That funding should be reinstated in the short-term while longer-term work to re-assess funding streams takes place.”

When researching this issue I also found an interesting article by the economists, Jim and Margaret Cuthbert.  The main point of this article is that the Department for Work and Pensions (DWP) and HM Treasury breached their own rules in coming to this decision.  The full article can be found here.

The decision to withhold Attendance Allowance funding appears to have more to do with not understanding that devolution means the power and ability to do things differently.  When you consider the reaction to other proposals such as a local income tax or the devolving of corporation tax powers a pattern appears to be forming.   It is also worth noting that institutions such as DWP and HM Treasury are meant to act for the whole of the UK.

In part 2 of this series of articles I looked at the Dilnot Commission and its recommendations on how to fund social care in England.

In this article I will look at the: “Independent Review of Free Personal Care in Scotland”, often referred to as the Sutherland Review.  Although not as wide-ranging as Dilnot, the Sutherland Review is important as although it concentrates on Scotland’s Free Personal and Nursing Care (FPNC) policy other connected issues are covered.

Lord Sutherland was asked in the summer of 2007, shortly after the SNP minority administration took office, to carry out an independent review of FNPC.   The findings of the Sutherland Review were published in April 2008.  More information, including a complete copy of the Sutherland Review. can be found here.

Before I look at the Sutherland Review in more detail it is probably useful to remind ourselves what FPNC actually is.   FPNC was introduced across Scotland on 1st July 2002.  Free Personal Care is a legal entitlement for people aged over 65 or over who have been assessed as having personal care needs that require services to be put in place.

Any personal care service which does not fall into this definition will continue to be charged for.   Subject to an assessment by the Social Work Service, Personal Care can include:-

• Personal hygiene (e.g. bathing/showering).
• Continence management (e.g. toileting/bed changing).
• Food and diet (e.g. assistance with food preparation).
• Problems of immobility (e.g. help to move around).
• Counselling and support (e.g. reminder device).
• Simple medication (e.g. creams/ eye drops).
• Personal Assistance (e.g. dressing/going to bed).

Free Nursing Care is similar but is available to people of all ages who are assessed as requiring nursing care services.

The remit for the Sutherland Review was in four parts.

1. The funding available for FPNC.
2. The distribution of resources between local authorities.
3. The impact of the withdrawal by the UK Government of Attendance Allowance from people receiving FPNC.
4. How to ensure that funding for the long-term care of older people is sustainable.

Before I list the Review’s recommendations it is worth noting the concerns that had arisen over the first 5 years of the operation of FPNC.   There are:

1. Questions had been raised about the consistency of provision between different local authorities.   This included the use of waiting lists with different eligibility criteria from one authority to the next.
2. There has been continuing debate about specific issues such as food preparation.
3. Questions had been raised about the practical implications of the legal ruling in the “Macphail” case. [i]
4. Allowances for residential care have not been raised in line with inflation.

The recommendations were set out in a twelve point plan.  

The first 9 recommendations are described as “short-term”.  These recommendations were deemed necessary to stabilise the policy and address difficulties in funding and the variability of provision across the country.

1. Address the Funding Gap.  The Scottish Government should provide additional funding to stabilise the policy in the short-term, i.e. for the next 5 years.    It is estimated that the shortfall in funding is around £40 million.
2. Up-rate fixed allowances.  The Residential and Nursing Care Fixed Rate Allowances should in future be up-rated annually in line with inflation.
3. Standardise assessment and delivery.   There should be clear “entitlement” for all those assessed as needing personal and nursing care, analogous with the NHS, and in line with that, local authorities and their partners should consolidate standardisation of assessment  for and delivery of services, to common processes and clearly stated target times.
4. Establish clear national priorities and outcomes for older people.  There should be a specific reference to securing the wellbeing of older people included within the Scottish Government’s 15 National Outcomes set out in its National Performance Framework.
5. Ensure costs are accurately monitored and reported.  The current failings in information systems identified should be addressed and more accurate systems to collect comprehensive and accurate cost information set in place.
6. Improve local accountability.  A performance framework for long-term care services for older people should be built into the Single Outcome Agreement Model.
7. Address imbalance in funding streams.  The UK Government should not have withdrawn the Attendance Allowance funding in respect of self-funding clients in care homes, currently amounting to £30 million a year.  That funding should be reinstated in the short-term while longer-term work to re-assess funding streams takes place.
8. Clarify expectations.  Renew efforts to improve public information and understanding of the policy.  A clear understanding of shared responsibility needs to be fostered.
9. Address cross-border/boundary issues.  Conclude work to ensure greater consistency in interpretation and application of Ordinary Residence legislation and guidance without further delay.

Recommendations 10 and 11 are described as for the “short to medium-term” and are aimed at securing the policy and keeping it under review within the next 5 years.

1. Review and re-model.  The uncertainty associated with projecting future costs of long-term care means demand must be reviewed and re-modelled regularly and be reflected accurately in future local government finance settlements and capacity planning by local authorities and their health partners.
2. Review public funding arrangements.  There should be a holistic review over the next few years of all the sources of public funding for long-term care of older people, including health, social care and housing support, but also UK Government benefit funding, in particular through Attendance Allowance and Disability Living Allowance.

Recommendation number 12 is for the longer-term and which requires more strategic long-term policy planning and vision.

1. Review public funding arrangements.  Government at all levels should seek to establish a new vision for dealing with the challenge of demographic change, not just looking at long-term care, but also pensions, transport, etc.

There was relatively little initial reaction to the Sutherland Review.   Almost every comment made at that time was a positive one.   The lack of reaction can be explained both by the lack of real opposition to the policy in Scotland and also the financial crisis that had already began when the Sutherland Review was published.   The recent reaction to this policy is therefore of more relevance.

Since April 2008 we have had the Independent Budget Review.   More information on the IBR can be found here.  The IBR recommended that immediate work should be undertaken to review whether all free or subsidised universal services should be retained in their current form.  This is an indirect reference to the policy of FPNC.

We have also had a Scottish General Election.  Helpfully Age Scotland has outlined how each of Scotland’s main political parties how they would prioritise “older people issues” in the next Parliament.   The full report is called “Party Positions for the Scottish Parliamentary Elections 2011”.  [ii]

Scottish National Party

The SNP guaranteed the future of Free Personal Care by filling the £40m shortfall left by the previous administration.   See recommendation 9 of the Sutherland Review.

Labour Party

The Labour party pledged to establish a new “National Care Service” that combines health and care services.   No direct mention of FPNC is made but an indirect mention indicates that the Labour party supports the policy.

Conservative Party

The Conservative party pledged to protect funding for FPNC.

Scottish Liberal Democrats

The Scottish Liberal Democrats pledged their continued support for Free Personal Care.

Two points in particular are worth commenting on.

The first concerns an issue that is not mentioned.  The UK Government’s decision to withhold Attendance Allowance funding due to the introduction of FPNC in Scotland.  That issue is of course dealt with in the Sutherland Review.  Again see recommendation 9 of the Sutherland Review.

The second is the Labour party policy of a “National Care Service”.   Also interested to note that the Labour Party had appointed an expert group , including Age Scotland Chief Executive and former Labour party councillor in London and Campaigns Officer for the Labour Party in London, David Manion.

Also interesting to note that the policy seems broadly similar to what has been proposed by the “Christie Commission”.   More on the funding of the Christie Commission can be found here.

Since the Scottish General Election COSLA has called for a review of FPNC.  In response, both Henry McLeish, First Minister when FPNC was introduced, and Age Scotland have argued strongly for continuing the policy.  The President of COSLA has also in a personal capacity called for FPNC to means-tested.   [iii]

Conclusion

The world we live in seems very different from April 2008.  Public spending in Scotland is declining after many years of year on year increases.  FPNC was the flagship policy of the first Scottish Executive when introduced in 2002 and is still well supported by our main political parties.  How long will this continue remains to be seen.

In my next article I will look at some of the issues raised in the Sutherland Review in more detail and in particular the UK Government’s withholding of the Attendance Allowance funds.

James Aitken

Legal Knowledge Scotland