Seòmar agus comataidhean

I refer the member to the answer to question S6W-00017 on 24 May 2021. All answers to written Parliamentary Questions are available on the Parliament's website, the search facility for which can be found at https://www.parliament.scot/chamber-and-committees/written-questions-and-answers

The Rent (Scotland) Act 1984 made it an offence to charge or receive any premium or require the making of any loan in addition to rent and a refundable deposit of no more than two months’ rent as a condition of the grant, renewal or continuance of a tenancy. This was further amended in 2011 to place beyond any doubt that such fees were illegal premiums. This position is reiterated in the statutory Letting Agent Code of Practice which came into force on 31 January 2018.

Prospective tenants who think they have been charged an illegal premium can refuse to pay, where tenants think they have paid an illegal premium they can raise an action to recover any fee paid through the First-tier Tribunal for Scotland (Housing and Property Chamber), there is no charge for this, or report the matter to Police Scotland.

In addition, where the person charging a fee is a letting agent, tenants can make an application to the Tribunal in relation to a breach of the Code of Practice. Where an agent is found to have breached the Code of Practice the Tribunal can issue a Letting Agent Enforcement Order that could include provision for the return of any prohibited fee.

Letting agents are required to be registered and to comply with the Letting Agents Code of Practice, which sets out the standards on how they manage their business and provide their services. This includes complying with relevant legislation and to have in place a complaints procedure. Concerns about a letting agent can be raised with the Letting Agent Registration team at the Scottish Government.

Throughout the Covid-19 pandemic National Records of Scotland (NRS) has placed significant amounts of information on care home deaths into the public domain. NRS analyses provides valuable information on characteristics of the deceased as well as presentation at Health Board and Local Authority level.

Following receipt of a FOI request for data at individual care home level, NRS carefully considered the potential public benefit of providing care home level data against the potential distress the public release of these data may cause families of the deceased, care home staff, residents and families of residents. NRS recognises that this is a complex issue and therefore welcomed the Scottish Information Commissioner's conclusion on how the balance of public benefit and potential distress should be considered. Following the decision by the Scottish Information Commissioner, NRS has complied with the instruction and now made this data available in line with the original FOI request.

The Scottish Government did not seek any advice on whether the discharge of patients who had not been tested for COVID-19 or had tested positive from hospital to care homes was unlawful. Any decision on whether a patient is ready for discharge is a clinical one, made by the clinician in charge. Where someone is most appropriately cared for after discharge is based on a multi-disciplinary assessment involving the individual and their family carers. In cases where a patient lacks capacity, an appointed guardian or carer with power of attorney, will be involved. If somebody is discharged to a care home it is because that has been assessed as the best place to meet their needs.

In March 2020 the Scottish Government issued guidance which stated that prior to people being admitted to a care home whether from hospital or the community, clinical screening should be undertaken of patients alongside a risk assessment to ensure sufficient resources including appropriate isolation facilities are available within the care home to support social distancing and isolation. The guidance recommended all admissions to be isolated for 7 days and if known to have contact with COVID patients for 14 days. Both clinical decisions around discharge and risk assessments are undertaken locally by health and social care professionals. There is no involvement of Scottish Ministers.

On 21 April 2020 the then Health Secretary announced that all admissions to care homes from hospital should have a negative test for COVID-19 prior to admission to the home, regardless of symptoms unless it is in the clinical interests of the patient to be moved, and then only after a full risk assessment. Where a patient has tested positive for Covid two negative tests are required. This policy is reflected in both Scottish Government and Health Protection Scotland guidance for care homes.

On 28 October 2020 Public Health Scotland published analysis of discharges to care homes between 1 March and 31 May 2020. This report was subsequently updated on 21 April 2021 This report is available on the Public Health Scotland website at https://beta.isdscotland.org/find-publications-and-data/population-health/covid-19/discharges-from-nhsscotland-hospitals-to-care-homes/ .

The Mental Welfare Commission (MWC) report did not take account of the testing status of patients discharged from hospital. During the early stages of the Covid-19 pandemic concerns were raised that people who were in hospital and lacked capacity may have been moved from hospital to care homes without full understanding of the legal requirements to ensure rights are upheld, and the move to care was lawful. This report details the findings of their investigation into these specific concerns.

The report concluded that some people had been moved without the appropriate legal authority, for example a Power of Attorney or Welfare Guardian. You can access the full report on the MWC website at https://www.mwcscot.org.uk/news/moves-hospitals-care-homes-during-pandemic-new-report-finds-wider-concerns-over-adherence-law .

The Scottish Government was first made aware that some people had been moved from hospital without the appropriate legal authority when we received the Mental Welfare Commissions draft report in April 2021.

Regarding the testing status of patients discharged to care homes, as stated in Parliament on 4 November 2020 by the then Cabinet Secretary for Health and Wellbeing, prior to the Sunday Post publishing their FOI, neither Scottish Ministers nor Government officials had information on the results of covid-19 tests prior to discharge, or where these patients were discharged. The Cabinet Secretary commissioned Public Health Scotland to carry out work to identify and report on discharges from NHS Hospitals to care homes during the first wave of the COVID-19 Pandemic. This report is available on the Public Health Scotland website at https://beta.isdscotland.org/find-publications-and-data/population-health/covid-19/discharges-from-nhsscotland-hospitals-to-care-homes/.