Court challenge concerns forced ministers to postpone key adult social care reform as details of emergency budget cuts revealed

Ministers were forced to postpone plans to bring in minimum terms and conditions for adult social care workers due to concerns they could face a court challenge, it can be revealed.

This delay allowed ministers to save £38 million in committed spending in the emergency budget review earlier this autumn. But ministers stopped short of recommitting the funding for the next financial year ahead of the Scottish Budget, due to be set out by Deputy First Minister John Swinney today.

It comes alongside confirmation of a £17m raid on health board funding to help hit efficiencies targets, and a cut of £20m within the Primary Care Improvement Fund. Covid-19 funding was also heavily cut, with more than £100m found in that part of the health budget.

These cuts formed part of £1.2 billion worth of savings outlined by Mr Swinney, who is interim finance secretary with Kate Forbes on maternity leave, in November. These in-year cuts were intended to help pay for cost-of-living policies and a £400m pot to help fund an improved pay offer for NHS staff.

The granular details of the savings are only able to be reported now following Freedom of Information responses from the Scottish Government, which have set out exactly where the savings axe fell.

Questions by the press at the time of the statement were met with no detailed response, with no additional detail provided at the time for the majority of cuts and savings.

Ministerial promises to bring in minimum terms and conditions for adult social care workers, one of the key recommendations from the Feeley Review that called on the Government to develop the National Care Service, were halted by concerns around a potential court challenge. The plans would have seen minimum levels of maternity/paternity leave or sick pay legislated for adult social care workers.

Officials said the plans to bring in legislation could have resulted in a challenge on the grounds of legislative competence due to employment law being reserved to the UK Government. This, officials said, meant the implementation of the plans could not go ahead, saving £38m. This cash will, however, have to be found by Mr Swinney for the coming financial year.

John Swinney is set to announce the government's budget plans in Holyrood today.

A further £15m was saved through delays to the National Care Service, with ministers stating they were forced to ‘re-phase’ the plans to ensure they had the “right skills in place to take the programme forward”.

Covid-19 budgets were also raided by the interim finance secretary, with £48.6m saved from Test and Protect alone. The Government has paused asymptomatic testing, rolling back on testing capacity in laboratories, and reduced the opening time for the National Contact Tracing Centre.

A further £29.4m was saved through a reduced requirement for Covid-19 hospital capacity and workforce hours, with £11.7m cut from the personal protective equipment (PPE) budget due to lower costs and lower demand. Health services will also be expected to use existing stocks. The cost of vaccinations has also dropped, saving the government £26.3m, due to lower venue hire costs and workforce costs.

Ministers have also delayed plans, set out in the 2021 Programme for Government, to establish a national community-based service for people with low vision. This commitment was set to cost £7.5m for 2022/23, but has been cut by two thirds, saving almost £5m.

Plans to support NHS audiologists to work in general practice, freeing up capacity in acute settings, has also been all but halted. Ministers found savings worth £1.9m from the budget of £2.2m for the plans, with the remaining £300,000 being used for “preparatory work”.

Ministers also found £63m in savings from other health programmes, including £8.6m from delays to recruitment for National Treatment Centres and Scottish Trauma Networks, £1.5m from the Young Persons Family Fund, and £6.1m in reduced spending on health research.

Funds were also “reprioritised” away from cladding remediation projects, officials admitted.

A total of £6m was due to go towards cladding projects, but as funding had yet to be allocated, this was cut completely with focus shifted instead into surveying work, raising the number of surveys to 100.

Green initiatives were also victims of the spending cuts, with the delivery scheme for zero and green bus funding, ScotZEB, delayed until 2023/24, saving £21.4m. A further £7m of unallocated active travel budget funding was also cut.

Asked if the cuts in the emergency budget review would be reinstated for the 2023/24 financial year, a Scottish Government spokesperson said: “The emergency budget review supported a path to a balanced budget for the current financial year, while prioritising fair public sector pay offers and recognising they are critical to the delivery of key public services.

"The Scottish Budget for 2023/24 will be set out on December 15 and will provide certainty on spending plans and tax choices.”

Asked specifically about pay for adult social care workers, the spokesperson added: “The Scottish Government is continuing to pursue all available means to deliver improved terms and conditions for adult social care workers. Employment powers remain reserved to the UK Government and the Scottish Parliament cannot legislate in those areas.

“It is part of normal policy consideration to ensure that the Scottish Government has the appropriate legal competence to act. Work is being taken forward by officials and stakeholders to secure delivery.

“The 2023/24 Scottish Budget will be published on 15 December 2022, and will set out the Scottish Government’s spending plans for 2023/24.”

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