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.