Self-directed Support and Social Care Law in Scotland

Social Care in Scotland is governed by a variety of different sources of law. These include Acts of Parliament, ( sometimes called Statutes), Regulations and Guidance.

In this section we look at the main Acts and other sources for the rules in relation to SDS.

Full copies of these Acts are available online at www.legislation.gov.uk however you should be aware that not all the versions of the Acts on the site are fully updated.

Duty to Assess

Before going on to consider the legal basis for providing support, we will look at the Local Authority's duty to assess the need for care and from where that arises.

This duty arises from different Statutory provisions depending on the circumstances

• s12A Social Work (Scotland) Act 1968 - provides the legal basis for all community care assessments for adults

• S22 Children (Scotland) Act 1995 -provides the legal duty to safeguard and promote the welfare of ‘children in need’

• S23 Children (Scotland) Act 1995 - provides the legal duties in relation to children affected by disability

• S6 Carers (Scotland) Act 2016 – provides legal duty to provide support plan to adult carers

• S12 Carers (Scotland) Act 2016 – duty to provide support plan to young carers

Each of the above provisions creates a duty which the Local Authority must fulfil. In each case we can describe this as 'the duty to assess'.  However, what is not as clear, is the duties that arise once the a need for care has been assessed or how any such duties should be discharged.

The 2013 Act gives us some help, in that it establishes statutory and good practice principles relevant both to assessment and to provision of support. 

Furthermore it creates new duties in relation to how both the process of assessment and interaction with those being assessed or their representatives.

We will look at these principles in more detail in the next section.

The 2013 Act sets out four statutory principles, Participation and dignity; Involvement;  Informed choice and Collaboration, and these are examined in more detail in the Statutory Guidance to accompany the Act together with additional good practice principles.

They are set out in the form of a table in the Statutory Guidance

Table 1: The legal principles that must underpin assessment

Although the legislation allows for a measure of flexibility in how assessments are undertaken and how support is planned and provided, individuals should be able to rely on the application of these principles in practice, and as discussed earlier, deviation from these principles may be the basis for a challenge to a social care decision.

The right to be offered four options is at the heart of SDS. 

Watch this brief introduction from Self Directed Support Scotland

Section 4 of the Act sets out the Options for self-directed support

Normally an offer of all four options has to be made. In some cases the offer of Option 1 (a direct payment) cannot be made or does not have to be made and there may be other limited cases, primarily relating to crisis or short-term situations  where there is no requirement to offer the choice of options at all.  

Further details of these exceptions can be found in the Self-directed Support: Practitioners Guidance.

Additionally the Authority is required to apply the general principles and specifically to ensure that the choices are properly understood by the supported person. 

Local authority Duties under 2013 Act

The 2013 Act creates or preserves a number of duties that the Local Authority (LA) has in relation to the provision of support

1. Duty to provide choice of options

The extent of this duty is to be found across three sections of the 2013 Act

• Section 5 – towards those assessed as requiring services
• Section 7 – towards those assessed as requiring support as carers
• Section 8 – towards children and members of their family requiring support under                           1995 Act

If an individual is not eligible for Direct Payments the LA must notify them in writing why that is the case and advise them of the circumstances in which they can request a review under s12 of the 2013 Act.  As well as in writing, the LA must notify them in such other form as is appropriate to the needs of the person to whom it is given.

Additionally a person who is considered not to be eligible, must be allowed to choose one of the other options

The LA must inform the supported person/carer of:

a)        the amount that is the relevant amount for each of the options for self-directed                   support from which the authority is giving the person the opportunity to choose, 

and

(b)       the period to which the amount relates

2. Duty to provide assistance in respect of choice of options

This is found in section 6 of the 2013 Act

If it appears to the LA that the person requiring support would benefit from assistance making a decision in respect of the options because of a mental disorder or communicating the decision because of a physical disorder, they must support the person or identify persons able to assistance with the supported person consents and involve them

This provision doesn’t apply if a person has a guardian, continuing attorney or welfare attorney with powers in relation to the relevant matters or someone who has those powers under an intervention order.

3. Duty to provide information about self-directed support

This duty is contained in Section 9 of the 2013 Act

It applies to those given a choice of options under sections 5, 7 or 8. The Authority must give:

• an explanation of the nature and effect of each of the options for self-directed support,
• information about how to manage support,
• information about persons (including persons who are not employed by the authority) who can provide(i) assistance or information to the person to assist the person in making decisions about the options(ii) information about how to manage support, and
• in any case where the authority considers it appropriate to do so, information about persons who provide independent advocacy services

This information must be in writing and any other form necessary as appropriate.

3. Duty to provide information about self-directed support

Section 10 of the 2013 Act contains similar provisions relating to the provision of services to children

The duty to provide information on the choices to the appropriate person is similar to section 9

This duty is expressed in terms of being to give the child an explanation and information as far as practicable and taking account of the maturity of the child.

4. Duty to give effect to the option chosen

The Local authority must implement the option chosen; there is no discretion to deviate from this

5. Duty to offer another chance to choose option upon change of circumstances

Under section 13 of the 2013 Act, if a person chooses an option and then there is a material change in their circumstances of which the Local authority becomes aware, the LA must offer another chance to choose .

The LA also has a power to  agree to offer another choice even if there has not been a material change in circumstances.

It is important to note that this is a duty placed on the LA, that is to say there is no need to request a chance to choose a different option where there has been a material change, it is for the LA to instigate this.

Unlike the requirement to notify if the person is not eligible for direct payment, there is no apparent requirement for this notification to be in writing or such other form as appropriate for needs

6 Duty to promote options for self-directed support

This duty is found in  section 19 of the 2013 Act

The Local authority must take steps to promote the availability of all of the options of SDS.

As far as reasonably practicable they must promote a variety of providers and variety of support provide by it and other providers

Direct Payments

The relevant parts of the legislation are to be found at sections 12,15 and 16 of the 2013 Act and the more detailed operation is described in the Self-directed Support (Direct Payments) (Scotland) Regulations 2014/25

Direct payments under Option 1 can be means tested by the local authority. The details of this are in Regulation 3

           i)      Means test must be done before direct payment made or                                                     within a year afterwards

           ii)     The person receiving support may need to contribute to the direct payment

           iii)     They may need to repay some or all of a Direct Payment to reflect the                                  contribution calculated after a payment OR A LESSER AMOUNT 

           iv)     there is discretion to waive the contribution altogether if a person is only                              notified of it after they have spent the payment?

           v)      Does not apply to Carers (reg 3A)

There should be a provision for contributions to be paid in instalments (Reg 4)

Additionally they can be paid (in full or in part) direct to a third party on a supported person’s request if the local authority is satisfied the user retains control over spending (Reg 5)

Termination of a Direct Payment        

Direct Payments can be terminated (Reg 6) where:

• the person receiving them has become ineligible to receive direct payments
• the direct payment has been used (wholly or partly) for some purpose other than to secure the provision of the support to which it relates
• the local authority considers on reasonable grounds that the direct payment user has breached the criminal law or  a civil law obligation in relation to the support to which      the direct payment relates
• the direct payment has been used (wholly or partly) to secure the provision of support by a family member where this is not permitted.

Before terminating the LA must give notice of reasons and the date when the payment will be terminated

When deciding when payment will stop the LA has a duty to consider any contractual obligations and the time necessary to put in place alternative arrangements for care

Notice must be in writing and any other form appropriate

The following categories of persons are not eligible for Option 1:

• People provided with residential accommodation or residential care with nursing  (Reg 10)
• LA not required to offer direct payment if user has had direct payment previously terminated under Reg 6 or is likely to put  safety of supported person at risk (Reg 11)

N.B. Note the difference here between complete ineligibility and no duty to offer (this would still allow LA to offer direct payment if they chose to)

The Local authority has the power to recover direct payment made where it considers the payment has been used for another purpose or there has been a contravention of the Regulations

A person can be asked to repay a direct payment of such part as local authority considers appropriate

There is a Right to request review of the decision not to offer direct payment option on the basis that there has been a material change of circumstances such that the original reason no longer applies (s12)

Support provided by family members

In both the Statutory Guidance and in the Direct  Payments Regulations there is detail on the circumstances in which support can be provided by family members

The requirements can be found at Regulations 7-9

These allow for family members to provide support for which direct payment is made but only if:

There is agreement between the user, the family member and the LA

The family member is capable of providing the support and at least one of the following apply:

• there is a limited choice of service providers who could provide the support;
• the direct payment user has specific communication needs which mean it will be difficult for another provider to provide the support;
• the support is required at times at which the family member will be available to provide it and where other providers would not reasonably be so available;
• the intimate nature of the support required by the direct payment user makes it preferable to the direct payment user that support is provided by a family member;
• the direct payment user has religious or cultural beliefs which make the provision of support by a family member preferable to the direct payment user;
• the direct payment user requires palliative care;
• the direct payment user has an emergency or short-term necessity for care; or
• there are other factors in place which make it appropriate, in the opinion of the local authority, for that family member to provide the support

For the purposes of the Regulations a "family member" is taken to include: 

• the spouse or civil partner of the direct payment user;
• a person who lives with the direct payment user as if their spouse or civil partner;
• parent; or their spouse/partner
• child; or their spouse/partner
• brother or sister; or their spouse/partner
• aunt or uncle; or their spouse/partner
• nephew or niece; or their spouse/partner
• cousin; or their spouse/partner
• grandparent; or their spouse/partner
• grandchild; or their spouse/partner

The most notable situation in which a Family member cannot provide support is if :

• they are a guardian or attorney with power to make decisions re support provided through direct payment
• the local authority determines that either family member or user id under undue pressure