Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance

Section 7: Assess (Part 1) Determining Eligibility for Support and Conducting Statutory Assessment of Need

This section deals with all aspects of assessment and eligibility. It provides general guidance covering all age groups and circumstances and further detailed guidance for adults, children and families and carers.

The legal basis for assessment is as follows:

• For adults: Section 12A of the Social Work (Scotland) Act 1968
• For children: Section 23 of the 1995 Act
• For carers of adults: Section 12AA of the 1968 Act
• For carers of children: Section 24 of the 1995 Act

This section provides guidance on the following aspects of assessment:

• the general principles that must inform the assessment;
• determining a person's eligibility for support
• the further exploration of the person's needs and personal outcomes
• further guidance: capacity
• further guidance: children and families
• further guidance: carers
• further guidance: complaints

The general principles that must inform the assessment

7.1 In developing its guidance, policies and procedures on assessment the authority should consider the changing context in Scotland. A key change has been a shift in emphasis towards personal outcomes. This recognises that policy and practice needs to move away from services and what they do (service led assessment and support) and towards an approach whereby the person takes control, prioritising the difference to be made to people's lives (outcomes focused assessment). This involves more control being retained by the person who is viewed as a partner in identifying and achieving their outcomes rather than a passive service recipient. In involves a shift in the systems and processes surrounding assessment, moving away from a focus on deficits and towards strengths and capacities. This is a significant system and culture change. It requires development opportunities and on-going support for practitioners. This change, alongside the emphasis on choice, control and flexibility, should inform the authority's approach to assessment across adults, children and carers.

7.2 The general principles provided in Section 1 and 2 of the 2013 Act recognise this changing context. They provide a legislative context for the authority's approach to assessment of needs for adults, children and carers and the authority must have regard to these principles in conducting the assessment.

Table 7: The general principles of assessment (Section 1 of the 2013 Act)

Collaboration

The authority must collaborate with a supported person in relation to the assessment. It should work with the person and towards a shared goal, in this case the identification, development and subsequent delivery of the supported person's outcomes. It should facilitate the active contribution of the person as a partner in working towards a shared goal.

Involvement

The supported person (adult, child or carer) must have as much involvement as they wish to have in the assessment.

Informed Choice

The supported person must be provided with any assistance that is reasonably required to enable them to express their views about the assessment.

Determining a person's eligibility for support

7.3 The initial purpose of the assessment is to identify the person's needs with a view to determining whether the authority has an obligation to meet those needs. In other words, it is to determine the person's eligibility for support. In relation to adults, in order to qualify as a person in need the person must be in need of support arising out of infirmity, youth or age or require support arising from illness, mental disorder or disability.

7.4 In relation to adults the authority may choose to apply local eligibility criteria in order to determine whether the person's needs call for the provision of services (i.e. to determine if the person's needs are eligible needs) however it is a matter for the authority to determine the detail of its approach. Where the adult is over 65 and eligible for personal care or where the person is eligible for nursing care the local authority must take account of the relevant joint Scottish Government and COSLA guidance on eligibility criteria.

Example: eligibility framework for adults

* Critical Risk: Indicates that there are major risks to the person's independent living or health and wellbeing likely to require immediate or imminent provision of social care services (high priority).

* Substantial Risk: Indicates that there are significant risks to the person's independence or health and wellbeing likely to require immediate or imminent provision of social care services (high priority).

* Moderate Risk: Indicates that there are some risks to the person's independence or health and wellbeing. These may require 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 a low risk to the person'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.

7.5 The authority's approach to making decisions about a person's access to support - whether it applies formal eligibility criteria or not - plays a key role in the subsequent assessment, the provision of choice under the 2013 Act and the provision of support following that choice. The authority should have regard to the following key points when developing its approach to eligibility, wider assessment processes and in developing the relevant training and guidance to practitioners:

• The authority should take full account of how the person's needs and risks might change over time. It should support the relevant professionals to consider the impact of failure to intervene and whether this would lead to escalation of need in future. It should take a well-rounded approach, recognising that risks to participation in society (living an ordinary life, engaging with others) are valid alongside risks to dignity (personal care, "life and limb" support). It should recognise the potential hidden needs which may not be obvious or highlighted in generic guidance documents. The relevant parties involved in assessment - the professional and the adult, child or carer - should be able to access information and advice about alternative sources of support out with formal or funded social services.
• The authority can take into account its overall resources when determining eligibility criteria. However once it has decided that the person's needs are such that they require provision of services (i.e. are 'eligible needs') the authority cannot then refuse to meet those needs because of budgetary constraints.
• The authority should take a strategic approach to the application of eligibility criteria. It should do this in partnership with wider partners including the health board, providers, user groups and carer groups. The authority should develop its criteria within the context of its wider commissioning strategy and a broader framework of prevention, early intervention, support to carers and universal services. If a person does not meet a particular eligibility threshold the authority should take steps to ensure that the appropriate arrangements are in place, providing an environment where the professional can direct that person to suitable alternative sources of support. The authority should consider their strategy for investing in preventative and universal services - interventions which prevent or delay the need for formal social care and support.
• The authority should develop its policy in line with the statutory principles provided by the 2013 Act and articulated within this guidance. In particular, it should consider the principles of involvement (of service users/carers), informed choice and collaboration. The authority should take steps to involve people who use support, carers and partner organisations in the development of its policies and it should do so from the outset. It should publish the eligibility criteria/framework and it should do so in a clear and transparent way.
• The authority's response to need should be informed by the continuing review of the person's needs. This should include consideration of how urgently service provision is called for and what interim measures may be appropriate pending any long-term support. Thorough professional judgement is needed in order to discharge this task.

Further guidance and hyperlinks:

Institute for Research and Innovation in Social Services, Leading for Outcomes: A guide http://www.iriss.org.uk/resources/leading-outcomes-guide

Institute for Research and Innovation in Social Services, Understanding and measuring outcomes http://www.iriss.org.uk/resources/understanding-and-measuring-outcomes

Institute for Research and Innovation in Social Services, Reshaping care and support planning for outcomes http://content.iriss.org.uk/careandsupport/assets/html/intro.html

Joint Improvement Team - Talking Points: Personal Outcomes Approach (includes Talking Points: A Practical Guide) http://www.jitscotland.org.uk/action-areas/talking-points-user-and-carer-involvement/

Scottish Community Development Centre - Co-production: useful resources http://www.scdc.org.uk/what/co-production-scotland/co-production-useful-resources/

For further guidance on the application of eligibility criteria see the Scottish Government and COSLA's National Standard Criteria and Waiting Times for the Personal and Nursing Care of Older People: http://www.scotland.gov.uk/Topics/Health/Support-Social-Care/Support/Older-People/Free-Personal-Nursing-Care/Guidance

Further exploration of the person's needs and personal outcomes

Resources

7.6 As part of the detailed consideration of the person's needs and outcomes the authority will wish to explore the appropriate resources which can help to meet the person's needs. The authority should ensure that the assessment considers all of the possible resources available (non-financial as well as financial), though additional assets should be complementary to the provision of funded support and not a replacement for funded support. The main resources that the professional and user will wish to explore are:

• the person's attributes and assets (their skills, knowledge, awareness, background, decision-making skills and contacts);
• the person's well-being and inner strength;
• the person's extended family, close friends, work colleagues and community;
• the budget or local authority funding which the person can access to meet their eligible needs;
• the professional's knowledge, expertise, background and contacts;
• the local resources, shops, health and education services, community facilities (libraries, sports centres, community "hubs" etc.); and
• any other sources of information, advice and support available to the supported person.

Resource allocation

7.7 Where the person is deemed to be eligible for support the authority will wish to consider a fair and transparent means by which to determine the appropriate level of funding. Section 4 of the 2013 Act refers to a relevant amount and defines this as the "amount that the local authority considers is a reasonable estimate of the cost of securing the provision of support for the supported person."

7.8 There is no single approach to resource allocation prescribed on the face of the 2013 Act, nor any single method recommended by Scottish Government. The authority may wish to adopt an equivalence model where they determine the cost of the service to be arranged and then provide the equivalent amount as a budget for the supported person to control. Alternatively, it may wish to adopt a resource allocation system whereby the authority gathers information about the person's outcomes, allocates points to those outcomes and, on the back of this process, allocates a level of funding. In addition, decisions about budgets may be made on a case-by-case basis.

7.9 While systems and tools can be useful aids on their own they are no substitute for the skilled judgement of a social work or health professional in collaboration with the person. The authority must ensure that the approach taken to the allocation of resources is both fair and transparent. It should take steps to involve user and carer groups in the development of any methodology used to define or determine budgets. Regardless of the specific approach to allocating resources, the authority should take steps to inform the person of the amount of support available under each of the options.

7.10 The authority and the relevant professionals acting on its behalf should ensure that the nature and level of support meets the person's eligible needs. The authority should ensure that professional expertise is brought to bear. The approach to defining the budget should be robust, rational and transparent. The level of resource identified in the final support plan should be sufficient to meet the needs identified as eligible in the assessment.

Case Study example: Mr A's story (Resource allocation)

Mr A discussed his incredibly difficult experience of accessing self-directed support for his mother. He highlighted the lack of knowledge and awareness of key social work professionals at this time on SDS and talked about the social worker needing to continually seek clarification from the service manager on a wide variety of issues. He raised concerns regarding resource allocation system (RAS) processes and the experience of the social worker repeatedly needing to return to the committee to argue the case and secure a budget. Mr A raised the need for SDS training and resources for staff as "the troops on the ground don't know about it". The entire process was combative requiring input from lawyers to fight for his mother's rights and took almost one and a half years to secure SDS, describing the experience as a "massive fight to get it". He highlighted the need to know the right person to make the right things happen during the process.

Despite the significant barriers to accessing SDS Mr A was incredibly positive about the impact of SDS upon his mother's quality of life due to the choice and control it offered. Indeed he clearly articulated that, "Because of SDS my Mum is still alive" and that "SDS had allowed his family to have some freedom".

Assessment in challenging or "crisis" situations

7.11 In some instances the assessment will be completed in a challenging environment such as a hospital or where a young person or adult is viewed as at immediate risk. Crisis situations are rarely conducive to an effective assessment however the authority should ensure that the initial support to address any crisis situation does not become the long-term arrangement for the person. Professional judgement is a necessary ingredient in such circumstances. It is important to document how decisions are reached. After the initial crisis has stabilised, and as soon as the supported person is ready to do so, the authority should seek to develop a comprehensive assessment. This should involve the provision of the four options as required under the 2013 Act. Independent advocacy should be considered where there are conflicting views, where the person is unable to express their views, or where there is nobody available to make decisions free from self-interest

Further guidance: children and families

The relationship between the 1995 Act assessment and the wider Child's Plan

7.12 Under the Getting it Right approach each child who requires support, whether from a single universal service or from several services or agencies, should have this support co-ordinated and recorded within a single plan. The social care assessment and support planning process - i.e. the process described in this guidance - should feed into a single plan for the child. The authority should seek to ensure the assessment process is fully co-ordinated between adult and children's services, including any other relevant departments such as education.

7.13 Where an assessment takes place an approach based on personal outcomes will help to draw out the child and their family's views on the things they want to achieve, the things they would like to do and how they would like to do them. It will also help to ensure that the social care assessment can easily contribute to the Single Plan for the child. In undertaking the assessment, the local authority and professionals within the authority should consider the SHANARI framework (Safe, Healthy, Achieving, Nurtured, Active, Respected & responsible, Included)

The involvement of the child

7.14 Under the 2013 Act if the child is 16 or older then the child will have the right to make decisions about their own support and to choose how they wish to arrange this support. If the child is under 16 then the person with responsibility for the child - called the appropriate person in the 2013 Act - should make decisions about the child's support. The authority should inform the appropriate person that they must, in so far as practicable and taking account of the maturity of the child, give the child an opportunity to indicate whether they want to express a view about their own support. If the child wishes to express a view then the appropriate person should give the child an opportunity to express their view. The appropriate person should also have regard to the views of the child in making the key decisions about that child's support. The child's opinions should be actively sought and their behaviour observed with the adults who will be supporting them. A few trial or observation visits may be needed to get their views. The child should be given appropriate help to express their views and wishes and should have access to independent advocacy when appropriate. The relevant professional will need to handle such issues sensitively in terms of the family situation where there may be parental conflict with the views of the child. The authority will wish to reflect this in the relevant local guidance and support to professionals. It is important to recognise the views of parents who have been managing the delivery of support for their child in setting in place any new arrangements once the young supported person reaches age 16.

7.15 The authority should ensure that the child and family, particularly where the child is approaching the transition to adult service, are fully informed of the legal routes available to them in order to ensure that the child's family have the opportunity to apply for the necessary powers to ensure that they continue to determine their support. Where the child or young person lacks capacity or may lack capacity in future the authority should make the child and their family aware of the Adults with Incapacity (Scotland) 2000 Act ("the AWI Act"). The authority should inform the child and their family about the opportunity to apply for power of attorney and guardianship.

Further guidance: carers assessments

7.16 A carer who provides a substantial amount of care on a regular basis has the right to request an assessment of their own needs. Under Section 12AA of the 1968 Act (relating to carers of adults) and Section 24 of the 1995 Act (relating to carers of children) the authority must comply with any such request. In addition the authority has an obligation to inform the carer of their right to request an assessment under section 12AB of the 1968 Act and section 24A of the 1995 Act.

7.17 An effective carer's assessment rests on an open and honest conversation between the professional and the carer, with a strong focus on personal outcomes. Sections 4 and 5 of this document provide general guidance on how to conduct assessments - and much of this is equally relevant to carers' assessments.

7.18 The characteristics of the carer are relevant when deciding whether they are providing a substantial amount of care on a regular basis. For example they might be in poor health themselves or they may have other responsibilities such as school-age children. A carer's choice to provide care should also be taken into consideration.

7.19 Preventative support is more cost effective than support provided in a crisis or emergency, as well as being more suitable for the carer and the person they care for. Carers who do not meet the threshold for a carer's assessment can still benefit from low-level preventative support and carers who feel confident enough to access low-level support are more likely to take up further support should their caring role increase in the future. In some cases the carer may not wish to undertake a full assessment. Carers need not, therefore, undertake a formal assessment in order to receive some kind of support from the authority. It is still important that the local authority provides the carer with information on local support, even if an assessment does not identify statutory needs, or if an assessment is not required to be carried out at all.

Further guidance and hyperlinks:

For further guidance on the legal basis and policy aims for carer's assessments see the Scottish Executive's Community Care and Health (Scotland) Act 2002: New Statutory Rights for Carers: Guidance http://www.sehd.scot.nhs.uk/publications/cc2003_02full.pdf

Scottish Government (2010) Caring Together: The Carers Strategy for Scotland 2010 - 2015 http://www.scotland.gov.uk/Publications/2010/07/23153304

Further guidance: assistance and capacity

7.20 Under Sections 6 and 17 of the 2013 Act the authority must take reasonable steps to facilitate assistance which will help the supported person to play a full part in their assessment, to understand the various choices available to them and to decide how and what ways they would like to arrange their support. This is to support reasonable, practicable steps to maximise the choice and control available to the supported person. The relevant provisions within the 2013 Act are not intended to impose assistance on the supported person. Neither are they intended to create the opportunity to develop alternative proxy decision-making powers.

Assistance with understanding and/or making decisions

7.21 The supported person may find it difficult to make a decision on their own however with some additional support they may be able to make the necessary decisions associated with the assessment, support planning process or the provision of support. Where the authority believes the supported person would benefit from further assistance they should first consider the full range decisions that will have to be made during the course of the supported person's pathway. Though every assessment will be unique, the main decisions are likely to cover:

• decisions about the outcomes that the supported person wants to achieve;
• decisions about the steps that the supported person wants to take to achieve those outcomes;
• decisions about the means by which the supported person will receive their support;
• the range of reactive or management decisions that come with the on-going day to day provision of support; and
• any further decisions about needs, outcomes and plans associated with the review of a supported person's needs.

7.22 The authority must then take reasonable steps to enable the supported person to make the relevant decisions. The authority should exercise judgement in deciding whether the supported person requires such assistance. Where the authority decides that additional assistance is required they must take reasonable steps to identify a person or persons who can provide some extra assistance to the supported person. After this step (but only with the supported person's agreement) the authority should then involve the relevant individuals.

7.23 Where a supported decision-making arrangement or a "circle of support" is being considered the agreement of the supported person to the arrangement is paramount. The supported person must be invited to agree to any arrangement whereby another individual or group of individuals is/are being invited to provide them with assistance.

7.24 It is important that the person who is providing any assistance is able to provide that assistance. While there is no requirement for the person to have professional qualifications in supported decision-making they should have an understanding of the type of assistance required and the limits and boundaries of what is meant by assistance. In other words, they should be aware:

• of their role and the limits of their role; and
• the fact that their role is to help the supported person to make decisions and not to make decisions on the supported person's behalf.

7.25 Only guardians or attorneys appointed under the relevant legislation have the power to make decisions on another supported person's behalf. On certain occasions it may reasonable to predict that the supported person's condition will deteriorate over time such that they will lack capacity to make decisions. The authority should take steps to make the supported person and their family aware of the option to apply for power of attorney.

Assistance with communicating decisions

7.26 Assistance to make decisions and assistance to communicate decisions are two distinct forms of assistance, and they are treated as such by the 2013 Act. Where the person requires assistance to communicate decisions the supported person may require some additional support from, for example, an interpreter or a speech and language therapist, or from a family member or friend. If so, the authority must take all reasonable steps to identify other people who can help the supported person to communicate their decisions. The authority should take steps to obtain the supported person's agreement before they arrange any assistance for the supported person.

Guidance where the supported person lacks capacity

7.27 Where the supported person has a guardian or attorney and where that proxy has the necessary powers the guardian or attorney should be supported to make the relevant decisions in relation to the person's assessment, the support plan, the provision of choice in relation to the person's support and the support itself. The authority should ensure that the proxy is:

• fully involved in the assessment;
• supported to collaborate with the professional; and
• supported to make informed choices about the supported person's support.

7.28 The authority may have doubts or questions about a supported person's capacity. If so the relevant professional should seek assistance from a Mental Health Officer. Where the authority concludes that an application for guardianship would be appropriate they should discuss this with the supported person's family or others who may have an interest in the supported person's care and support. The authority can also apply to the court for a guardianship order.

Further guidance: complaints

7.29 The authority should inform the supported person that if they experience difficulties with any aspect of their assessment they should in the first instance try to resolve matters with their social work and/or health professional. Local support organisations may have a role to play in supporting users and providing additional support and information. Again this should be made clear to the supported person. The authority may also need to consider whether the person has a right to independent advocacy.

7.30 In the event that informal discussions cannot resolve an issue the authority should make the person aware that they can make use of the local authority's complaints procedure. The person should be advised that in relation to complaints about any action, decision or apparent failing of the local authority they also have recourse through the Scottish Public Services Ombudsman once all other avenues have been exhausted.

Further guidance and hyperlinks:

Chapter 4 of the AWI Act Code of Practice for Local Authorities contains further guidance on the relevant AWI powers and duties and how these relate to the assessment and support planning process. http://www.scotland.gov.uk/Publications/2008/03/20114619/17

Institute for Research and Innovation in Social Services, Leading for Outcomes: Dementia http://www.iriss.org.uk/resources/leading-outcomes-dementia

Communication and Assessing Capacity- A Guide for social work and health care staff http://www.scotland.gov.uk/Resource/Doc/210958/0055759.pdf

Powers of Attorney and Guardianship-Office of the Public Guardian (Scotland) http://www.publicguardian-scotland.gov.uk/

Mental Welfare Commission for Scotland - Good Practice Guides http://www.mwcscot.org.uk/publications/good-practice-guides/

The New Mental Health Act - A Guide to Advance Statements http://www.scotland.gov.uk/Resource/Doc/26350/0012826.pdf