Introduction

UNISON is Scotland's largest trade union representing over 145,000 members working in the public sector. We are the largest trade union in the health and social care sector with many members providing services to people with care needs who may be eligible to receive direct payments as an alternative means of funding service provision.

UNISON has a strong commitment to the human rights of disabled or disadvantaged groups and would include in this disabled or vulnerable people who require assistance of some form with healthcare, social or personal care.

UNISON recognises the impact that control over service provision can have in the enhancement of the independence and well being of many service users including, for example, disabled or elderly people.

However, UNISON is also committed to the retention of high quality public services in Scotland. The union opposes the externalisation of such services by privatisation or other means, and we are committed to preserving and protecting the rights of UNISON members in the event of the externalisation of services

 

Response by UNISON Scotland

UNISON recognises that concerns about the externalisation or privatisation of services through direct payments have to be seen in the context of the relatively low take up of this service option.

UNISON also recognises the dilemma giving rise to this consultation. We are aware that many people with significant care needs struggle to source a personal assistant or care provider for reasons connected to race, gender, location and other factors.

Nevertheless, we wish to restate our position on direct payments generally which is as follows:

• Appropriate user-focused care services can be delivered flexibly by public sector care providers.
• Employment under direct payments cannot be on terms any less favourable than those offered in the public sector and this should apply with particular reference to pay and pensions.
• There is an argument that the transfer of some care packages to direct payments may, in some cases, be a transfer that is covered by TUPE and that public sector terms and conditions may apply as a matter of law.
• In cases where TUPE applies, workers employed in the public services on a particular care package may have a right to transfer with that package and become employed under the direct payments scheme.
• There are concerns as to the provision under Direct Payments employment for health and safety, employers liability insurance, Race Relations Act compliance and other employment matters.
• There is ongoing concern and confusion over the identity of the employer in employment relationship funded by direct payments.
• Within the direct payments sector there is a danger that a culture takes hold under which agencies and funders seek to avoid examining employer obligations in full detail for fear of scaring service users from taking on the role of employer. UNISON's view is that employment under direct payments is only lawful and viable where would-be employers are required to meet their obligations in full. Service users must be funded in full so they can meet their legal obligations and these obligations must be set out in clear terms.
• Given the rationale behind the establishment of the Care Commission and the Social Services Council; and given what we know about the level of violence and abuse perpetrated by close family members; there is no good reason why the regulation of care and the registration of care staff should not extend to include the direct payments sector.

Notwithstanding these concerns, and the fact that many are not adequately addressed within the present structure of direct payments, UNISON offers qualified support for the extension of direct payments to the employment of close relatives in exceptional circumstances.

We accept, without qualification, the case for short-term care to a terminally ill person would appropriately be provided by a close relative. However, cases of this nature will be the exception and not the rule.

If a service user in a remote rural area has difficulty recruiting a personal assistant then before consideration is given to employing a close family member, priority consideration should be given to the restoration of care from the nearest statutory provider. Employment of a close family member should only be a last resort.

For all the reasons stated above, the Executive should be determined to avoid the situation where the employment of close relatives becomes established as a routine option for service users.