The 1968 Social Work (Scotland) Act recognises the central role of the local authority in determining where there is a need for the provision of community care services and how such need should be met. The legislation, as amended in 1990, describes assessment as a two-stage process: first the assessment of needs and then, having regard to the results of that assessment, the local authority shall decide whether the needs of that person call for the provision of services (12A of the Social Work (Scotland) Act 1968).The use of eligibility criteria applies to this second stage of the assessment process; they are used by councils to determine whether a person assessed as needing social care requires a service to be put in place in order to meet those needs.
National eligibility criteria for social care were agreed by the Scottish Government and COSLA in 2009 and while originally developed for older people as part of the response to Lord Sutherland’s report on free personal and nursing care, the criteria were explicitly designed to apply consistently across all adult care groups (see para 1.5 of the eligibility guidance).
It is recognised that the use of eligibility criteria as a means of managing demand for social care is imperfect and unless properly deployed can result in resources being narrowly focused on individuals with acute needs or on specific client groups. There is also evidence that inappropriate application of eligibility criteria can hinder the person-centred and outcome- focused assessment and support planning that is essential to deliver Self Directed Support.
To that end, further work is being undertaken by the Scottish Government and COSLA to assess how eligibility criteria are being applied in practice and consider whether further work is required to ensure criteria support the SDS approach.
Each local authority will have their own clear locally agreed eligibility criteria that should be referred to by managers and practitioners as part of the assessment process.
Self–Directed Support Strategy
In 2010, the Scottish Government and COSLA published a Self-Directed Support Strategy for Scotland. This strategy put forward a host of recommendations, including one on access to care and support and the use of eligibility criteria. Specifically, the Strategy recommends that:
“The Scottish Government in conjunction with COSLA and the National SDS Implementation Group will review the application of the national eligibility framework in order to establish the need for national eligibility thresholds for all adults with social care needs.”
In developing the Self Directed Support Strategy it became evident that a key concern amongst people who use services is the fact that provision can vary between council areas in Scotland and that there is not sufficient clarity as to the application of eligibility criteria and the operation of thresholds.
National Eligibility Framework
The National Eligibility Framework employs a four criterion approach, categorising risk as being critical, substantial, moderate or low.
- Critical Risk: Indicates that there are major risks to an individual’s independent living or health and well-being and likely to call for the immediate or imminent provision of social care services.
- Substantial Risk: Indicates that there are significant risks to an individual’s independence or health and wellbeing and likely to call for the immediate or imminent provision of social care services.
- Moderate Risk: Indicates that there are some risks to an individual’s independence or health and wellbeing. These may call for the provision of some social care services managed and prioritised on an on-going basis or they may simply be manageable over the foreseeable future without service provision, with appropriate arrangements for review.
- Low Risk: Indicates that there may be some quality of life issues, but low risks to an individual’s independence or health and wellbeing with very limited, if any, requirement for the provision of social care services. There may be some need for alternative support or advice and appropriate arrangements for review over the foreseeable future or longer term.
In these definitions, the risks do not refer only to an individual’s current independence, health and wellbeing, but also to the risk that she or he may not be able to gain these outcomes without support.
As part of the overall policy discussion on Free Personal Care, it was agreed that older people who had been assessed as being at critical or substantial risk would be provided with services within a maximum of six weeks of the confirmation of need.
Section 12 (1) of the 1968 Act indicates that “It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities….as they may consider suitable and adequate”.
While the advent of self-directed support requires a broad interpretation of the legislation – it is not necessary for the local authority to provide a service in response to assessed need – it remains the case that local authorities should operate eligibility criteria to determine whether or not an individual assessed as having a social care need can access formal support and if so, which of their needs are to be met by that support.
Self-directed support, as an approach, does not negate the need for the application of eligibility criteria – rather is a further evolution of relationship and partnership approaches with people and with families and heralds an expansion of choice in how support is delivered. This approach works within the context that social care support is not now, nor has ever been, an entitlement. Rather, it remains linked to a sound assessment of need.
Most people in society live most of their lives independent of formal services. There are people whose need for formal support will be short term, or variable. There are, however, many individuals who require lifelong support. All these groups deserve support that is flexible and creative in nature, and responsive to change. However, it is the latter group that is most likely to benefit from self-directed support.
- the Self-Directed Support Act 2013 requires transparency in decisions on allocation of resources. Experience from legal judgments in England reinforce the explicit need for those systems to be fair, equitable and transparent.
- should a person fall below the threshold of eligible need (and therefore access to an individual budget) this does not mean they don’t have needs that can be met in other ways – e.g. by the provision of information and advice; signposting to community resources or through a wide range of limited interventions.
- knowing the amount of resources available to meet their intended outcomes is a key component in maximising a person’s choice and control. The section on support planning describes this in more detail.
- where an adult over 65 years is entitled to free personal care to meet specific needs, this should be built into planning and those elements made clear. A creative plan can be built around the elements that won’t be charged for to enhance the support experience.
The SDS Act is not prescriptive as to the means by which resources should be allocated. Regardless of whatever system is being developed locally, the following points are critical and will be included in the carers’ and service users’ guides:
- local authorities should have a system of deciding a budget that is fair and clear to everyone.
- practitioners should be able to advise the individual how much money is available under each of the four options.
- the amount of money allocated for support should be enough to meet the eligible needs and agreed outcomes that are agreed in the assessment.
- before deciding how much money is allocated, the local authority must take into account the view of the professional who has worked with the individual and agreed needs and outcomes.
- where people do have a requirement for formal support because their support needs can’t be met in other ways, the design and shape of that support is developed as a partnership.
- resources should be provided flexibly and be personalised around the individual, making use of natural networks, with support focused on specific goals and personal outcomes.
Eligibility: Considerations for:
- there is an obligation to inform people of the eligibility criteria that operates locally.
- to make this accessible, practitioners need to be clear about the criteria and be able to express this in different ways or formats to meet different communication needs.
- once a local authority determines a person’s needs fall within its eligibility criteria, it has a duty to meet those needs, always recognising that there are many and varied ways to ‘meet a need’. The act encourages creativity and collaboration to widen the scope of support received.
- eligibility criteria should not shape the identification of ‘presenting needs’ but it may influence which needs can be met through local authority or partnership funding.
- it is important that assessments are focused on personal outcomes and that a strengths- based approach to assessment is adopted.
- a need should not automatically be seen as a deficit that requires funding or a service.
- in determining eligibility, practitioners need to take full account of how a person’s needs and risks may change over time, the impact of failure to access support and whether this would lead to more support being required in the future.
- if, after assessment, it is determined that a person does not meet the eligibility for funded support or services they should – minimally – be provided with information and advice about alternative forms of possible assistance.
- there may be a requirement for limited or ongoing involvement with some people even if their needs fall below eligibility criteria thresholds.
- Is there clear guidance available about current eligibility at a local level and are practitioners aware of it?
- Whilst councils have different ways of doing so, they are required to have systems of allocating resources that are demonstrably fair, equitable and transparent. Local eligibility criteria should, therefore, be clear, published and accessible for anyone to access.
- Self-directed support challenges local authorities to find appropriate ways of matching need to available resources. Neither the Act nor the accompanying regulations make comment on this, other than to acknowledge local authorities are permitted to seek a charge or contribution from the recipient of an individual budget, regardless of how it is accessed.
- Financial and IT systems should be in place to support the allocation and monitoring of individual budgets.
- Is there a joint commissioning strategy that promotes preventive or alternative approaches as well as access to more formal services? Practitioners should be clear about their responsibilities if a person’s needs fall below eligibility criteria.
- A focus on co-production and locality-based approaches will reduce pressure on formal services through prevention, early intervention and ongoing support to people in communities.
- There has been a number of legal challenges to the amount awarded to meet an assessed person’s needs and the resulting judgments provide a helpful guide to the responsibilities of a local authority.