The legal context for self-directed support

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.

Abbreviation

Title

What does it do?

1948 Act

National Assistance Act 1948

Charging for residential accommodation

1968 Act

Social Work (Scotland) Act 1968

Assessment and provision of services/support; charging for services

1970 Act

Chronically Sick and Disabled Persons Act 1970

Specific services for people (adults & children) who are chronically sick or disabled

1985 Act

Disabled Persons (Services, Consultation and Representation) Act 1985

Consideration of position of carer; assessments under 1970 Act

1998 Act

Human Rights Act 1998

Public authorities to act consistently with convention rights

2000 Act

Adults with Incapacity (Scotland) Act 2000

Decision-making for adults with incapacity

2002 Act

Community Care and Health (Scotland) Act 2002

Free personal care; (until April 2018) carer’s assessments.

2003 Act

Mental Health (Care and Protection)(Scotland) Act 2003

Provision of services to people who have or have had a mental disorder

2007 Act

Adult Support and Protection (Scotland) Act 2007

Protection of ‘adults at risk’

2013 Act

Social Care (Self-directed Support)(Scotland) Act 2013

Options for ‘self-directed support’; power to provide services to carers (until April 2018)

2014 Act

Public Bodies (Joint Working)(Scotland) Act 2014

Requires joint working between Health Boards and Local Authorities

2016 Act

Carers (Scotland) Act 2018

Assessment of, and provision of services to, carers from April 2018.

Regulations

There a number of regulations that may be significant and the existence of these will usually be apparent from the statute.  The most commonly encountered are below (but again, you should exercise caution as the copies there are not updated):

The Self-directed Support (Direct Payments) (Scotland) Regulations 2014 (SSI 2014/25)

The Carer’s Assessment (Scotland) Directions 2014

The Carers (Waiving of Charges for Support) (Scotland) Regulations 2014 (SSI 2014/65)


Guidance

There are a large number of separate pieces of guidance available from a variety of sources.  These do not generally have the force of law but they are significant in that a local authority would be expected to follow any relevant guidance unless they could demonstrate a good reason for not doing so.  

This is particularly so in the case of 'Statutory Guidance'.  The failure to follow published guidance can be the basis of challenge in Public Law, (see Judicial Review, later). 

Some important pieces of Guidance are as follows:

Scottish Government, Statutory Guidance to accompany the Social Care (Self-directed Support) (Scotland) Act 2013 (2014).

Scottish Government, Self Directed Support: my support, my choice: your guide to social care (2014)

Scottish Government, Self-Directed Support: practitioner guidance (2014)

COSLA, Charges Applying to Non-residential Social Care Services 2019 

Scottish Government, Revised Guidance on Charging for Residential Accommodation (March 2017)

Scottish Government, Carers (Scotland) Act 2016: statutory guidance


Other Guidance is available on different aspects of Social Care and it is worth noting that some of it pre-dates the 2013 Act.  The age of some of the legislation and the number of different provisions and pieces of guidance can give rise to some difficulties and in particular it can be difficult to piece together the different legal provisions which apply to a specific situation and see how they fit together.

In addition to this, there is a variety of terminology used. The older legislation refers to the provision of services, which is not really consistent with self-directed support in that under some of the options this will not be the case.  It can be difficult to determine which guidance is current and some of the regulations are updated on a regular basis, making it doubly important to be aware of which version is current.



Last modified: Thursday, 30 January 2020, 9:29 PM