It’s not a race, but…

Vernon Bogdanor, professor of government at Oxford University,
memorably defined devolution as “the dispersal of power from a
superior to an inferior political authority”. Health and community
care, local government and housing were devolved when the Scottish
parliament began work in May 1999.

Three years on, Scotland seems to be ahead of the game in several
key areas of social policy. Long-term care of older people, youth
justice, services for people with learning difficulties and
homelessness are all areas where the new Scottish parliament has
forged bravely ahead, in theory. But how are Holyrood’s decisions
really measuring up to those being made in the House of Commons? We
make some comparisons.

Long-term care

Free personal and nursing care arrived last July. The provision of
free personal care in people’s own homes is in marked contrast to
England where only nursing care provided by a registered nurse is
free. Means-testing thresholds are also set lower so Scottish
residents are eligible for financial help sooner than those in
England (see panel, right).

It’s not all good news though. There has been recent controversy
over the amount of time older people are having to wait to be
assessed for free personal care – in some areas it’s claimed to be
up to a year. And last month, private care home owners rejected the
latest offer from the Scottish executive and local authorities of
£406 a week for publicly-funded clients. Although disaster has
been averted for the time being, this row could see more older
people languishing unnecessarily in hospital, potentially setting
off a delayed discharge crisis.

Despite this, things do seem to be better for older people in
Scotland than those in the rest of the country. Jess Barrow, Age
Concern Scotland head of policy and public affairs, agrees: “The
Scottish parliament has shown a greater commitment to the welfare
of older people.”

The government has been dodging the issue of free personal care
since March 1999 when it was a key recommendation of the Royal
Commission on Long Term Care. More than a year later, the
government rejected the proposal in favour of another
recommendation to make nursing care in nursing homes “free”.

In March 2001, the National Service Framework for Older People
referred to the provision of free nursing care in nursing homes.
But when funding for free nursing care came on stream in October
2001, it arrived with a lot of baggage (see box).

Youth justice

The main difference between England and Scotland’s approach to
youth justice is the latter’s children’s hearings system which
deals with under 16s who are in need of care or protection or who
commit offences – unless the offence is very serious in which case
they go to court. All referrals to children’s hearings from police
and other agencies are made through children’s reporters. The
reporter then decides what action is necessary.

The Scottish executive launched its youth crime strategy in 2001.
Its main component was the financing of local authorities to set up
youth justice teams – interagency management teams which include
the local authority, police, education, children’s reporter, and
voluntary organisations. Every local authority in Scotland has been
asked by the executive to set up a youth crime strategy group and
multidisciplinary youth justice services teams, similar to the
English youth offending teams (YOTs).

The national strategy introduced several pilot schemes, including
fast-track children’s hearings for persistent young offenders, and
a youth court pilot for 16 to 18 year olds who would otherwise face
an adult court.

No legislation underpins the strategy, and it is less punitive than
the English system. No parenting, reparation, or referral orders
here, and that’s a good thing says Scottish community safety
charity Sacro. Keith Simpson, head of service development, would
not want to see compulsion come into the strategy: “The model
followed here is seeking to get voluntary engagement rather than
putting obligations on parents and penalising them if they or their
children don’t comply. I don’t think people want to see a drastic
alteration in the way we deal with juvenile crime.”

Prevention, intervention and accountability best sum up the aims
behind the English youth justice system. The Crime and Disorder Act
1998 set the scene by providing a range of new interventions and
punishments to help youth justice agencies tackle crime.

As well as introducing new powers for local authorities, the act
brought in:

  • Child curfews between certain hours in specified
  • Antisocial behaviour orders.
  • Parenting orders.
  • Reparation orders, where young offenders make amends to their
    victim or the wider community.
  • Detention and training orders, to provide a flexible custodial
    sentence with the aim of preventing reoffending.

Later on, the Youth Justice and Criminal Evidence Act 1999
brought in referral orders for first-time offenders who plead
guilty and don’t require a custodial sentence. They are referred to
a panel of community members, facilitated by the youth offending
team. The panel looks at the causes of offending and draws up a
contract with the young offender and their parents to tackle the
problem. The model was influenced by Scotland’s children’s
hearings, says Charlie Beaumont, county projects and development
manager at Kent’s YOT.

A multi-agency approach in the form of local YOTs, and an emphasis
on restorative justice are central to youth justice policy,
Beaumont says. As is the unique role of the Youth Justice Board,
which has oversight of the whole youth justice system. He adds: “A
lot of multi-agency work here is not dissimilar to that aspired to
by children’s hearings in Scotland. Our legislation brought us
closer to Scotland, although statutory arrangements are slightly


Scotland is just one step ahead of England when it comes to
introducing legislation for tacking homelessness. The Housing
(Scotland) Act 2001 came into effect in October 2001, requiring all
Scottish local authorities to draw up strategies to prevent and
alleviate homelessness.

The Scottish parliament built on this when it passed the
Homelessness (Scotland) Act 2003 last month. The new act contains a
bold pledge to eradicate homelessness in Scotland within a decade,
and to ensure that by 2012, everyone assessed as being
unintentionally homeless is entitled to permanent accommodation. It
also introduces the right to temporary accommodation covering the
period after a person’s homelessness assessment has been conducted
and before the local authority has discharged its duty by offering
permanent accommodation. Any permanent accommodation offered to a
homeless family must be suitable for children to live in.

Scottish Council for Single Homeless director Robert Aldridge says
the homelessness act – combined with the Housing (Scotland) Act –
is “one of the most progressive pieces of legislation in Europe”.
He adds: “The homelessness act sets the scene for a major change in
the way we treat homeless people in Scotland. It concentrates
resources on assisting homeless people to be housed successfully
rather than on investigating how they might be rationed out of the

After a false start in 2001 when the government was forced to
abandon the Homes Bill because of lack of parliamentary time, the
Homelessness Act 2002 came into effect last July. It falls short of
its Scottish counterpart’s commitment to ending homelessness but
requires all English councils to significantly expand their
“priority need” categories.

The act fills the gap in housing provision left by the Children
(Leaving Care) Act 2000 by including 16- and 17 year olds, and also
aims to protect people who are forced to leave their home – people
fleeing violence, for example – and individuals leaving
institutions such as prison.

As with Scotland, the act states that every local authority with
housing stock has a duty to conduct a homelessness review and use
it to formulate a homelessness strategy within 12 months of its
commencement. English councils are required to update their
homelessness strategies every five years. The government put its
money where its mouth was last August. It allocated grants
totalling £3.3m to 79 local authorities that bid for the money
to help them develop their homelessness strategies. A further
£10m was shared out between every English council as part of
the Homelessness Priority Need for Accommodation Order 2002.

Learning difficulties

Hot off the mark in May 2000 the new Scottish executive published
The Same As You?, a 10-year strategy for services for
people with learning difficulties.1 This was the first
learning difficulties review for 20 years, and it received a mixed
reaction from the sector. For example, while it recommended that
anyone who wanted direct payments should be able to obtain them,
learning difficulty campaigners said the 2003 introduction was too
long to wait.

Of the executive’s 29 recommendations, the call for health boards
to close down all of Scotland’s remaining long-stay hospitals for
people with learning difficulties by 2005 was strongly supported.
The country has 16 such hospitals and so far seven have shut down.
A further three are due to close this year and the remaining nine
are expected to shut in 2004, way ahead of the deadline.

One of the first pieces of legislation passed by the Scottish
executive was the Adults with Incapacity (Scotland) Act 2000, which
came into force in April 2001. As well as giving new powers to
carers it introduced safeguards to the welfare, finances and
property of people aged over 16 who might not have their interests

People with learning difficulties have also risen up the political
agenda in England over the last few years. In March 2001 the
government published its Valuing People white paper, which
suggested the creation of a national learning disability task force
and partnership boards to plan services in every local authority
and the provision of £2.3m to fund advocacy

Valuing People contains a commitment to close down
England’s 21 long-stay hospitals and transfer residents to more
appropriate living arrangements. Despite being published later than
Scotland’s The Same as You?, the white paper set an
earlier deadline of April 2004 for the closure of the long-stay
hospitals. According to latest government statistics, 1,000 people
now live in long-stay hospitals compared with 1,600 in 2000. By the
2004 deadline, 500 people will still be waiting to be

Brian McGinnis, special adviser to learning difficulty charity
Mencap, believes the framework, policies and guidance, and
appropriate partnerships exist to help implement Valuing People
policies. However, he adds: “What is still missing is solid
experience of real change for the better of individual lives, based
on the personal choices of those individuals.”

When it comes to legislation to protect mentally incapacitated
adults, England is way behind its neighbour north of the border.
Although the government set out proposals for law reform in October
1999 in Making Decisions, there is still no legal
definition of “capacity” because a bill on the subject has not been
tabled. As a stopgap measure the Lord Chancellor’s department
issued draft guidance in June 2002 to carers and families, health,
social care and legal professionals and people with learning
difficulties. It was criticised by campaigners who claimed it gave
parents too much power. Four years on, people with learning
difficulties are still waiting for legislation to protect

So, has devolution meant a better outcome for social care clients
in Scotland? As far as older people, young offenders, homeless
people and those with learning difficulties are concerned, it would
seem so.

The so-called “inferior political authority” appears to be getting
it right.

1 Scottish executive, The Same As
, 2000

2 Department of Health, Valuing People: A New
Strategy for Learning Disability for the 21st Century
Stationery Office, 2001

Funding in England…

Despite the Coughlan ruling in 1999, health authorities continue
to shirk their legally tested obligations which means many older
people are still having to pay for services which should be fully
funded by the NHS.

In England there is no free personal care. Originally, free nursing
care could only be provided by a registered nurse in a nursing home
and only applied to people who would otherwise be funding the full
cost of care themselves. From this month, NHS funding will be
provided for this type of nursing care for all care home

Funding comprises weekly contributory payments in three bands:
£35, £70 or £110 depending on the level of nursing
care required. Those with assets of more than £19,500 pay all
their personal care costs, but if they are assessed as needing
nursing care are eligible for a contributory payment. As in
Scotland, individuals are then means-tested on a sliding scale.
Once savings fall below £12,000, the local authority pays all
costs and the older person keeps their capital.

A spokesperson for Help the Aged says: “The benefit of the system
in Scotland is that any older person assessed as needing personal
care will receive it without the ignominy of a means test. In
England, the system makes a false distinction between nursing care
and personal care which causes many problems in determining who
gets what for free.”

… And charging in Scotland 

Local authorities cannot charge for someone’s personal care at
home if they are 65 or over.  In care homes, an individual assessed
as needing personal care is eligible for a weekly contributory
payment of £145, plus a further £65 per week if they also
need nursing care. Older people with over £18,500 in assets
are eligible to receive the contributory payments but have to fund
the rest of their care.   After this, individuals are means-tested
on a sliding scale down to £11,500, under which level the
local authority pays their total care home fees and accommodation
costs. All the older person contributes is their income, that is
their pensions and benefits, each week – they are allowed to keep
their capital.  Also enshrined in the act is a deferred payment
mechanism where rather than having to sell their home upfront to
meet care home costs, older people can enter into an agreement with
their local authority whereby it pays part of the home’s fees and
the balance is settled from their estate.   

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