1.1 Status of guidance
Please note that this guidance was updated on 6 November to reflect the changes brought in by the Coronavirus (Suspension: Adult Social Care) (Scotland) Regulations 2020 which come into effect on 30 November. The regulations partially suspend section 16 of the Coronavirus Act 2020 ("the 2020 Act") insofar it relates to adult social care and adult carers. Section 16 will remain in force for children services. Local Authorities should therefore have due regard to the status of the guidance that relate to adult social care and adult carers.
This statutory guidance is issued by Scottish Ministers under section 17 of the 2020 Act".
Local authorities must have regard to the guidance and may be directed to comply with it under section 17(2)(b) of the 2020 Act.
In considering this guidance Local Authorities should also have due regard to the Scottish Government's COVID-19: Scotland's Strategic Framework and the levels currently in place in their area which, whilst not impacting directly on the provision of social care assessments, may impact on the way in which these assessments can be carried out.
1.2 Who this guidance is for
This guidance is primarily intended for local authorities and integration authorities, which have duties under the following legislation:
- Section 12A of the Social Work (Scotland) Act 1968 ("the 1968 Act");
- Sections 23 and 29 of the Children (Scotland) Act 1995 ("the 1995 Act");
- Section 1 of the Social Care (Self-directed Support)(Scotland) Act 2013 ("the 2013 Act"); and
- Sections 6 and 12 of the Carers (Scotland) Act 2016 ("the 2016 Act")
Those authorities must have regard to this guidance in exercising their functions.
Other organisations and individuals, including care providers, carers and users of health and social care services, will have clear interests in the guidance.
It is intended to be read alongside sections 16 and 17 of the 2020 Act, relating to Social Care Assessments in Scotland.
1.3 Relationship with other guidance
This guidance will have effect to the extent that section 16 of the 2020 Act is in force. Local authorities should consider what provisions are in force before relying on this guidance.
To the extent that this guidance applies, local authorities may disregard pre-existing guidance to the extent that it is inconsistent with this guidance. This applies to pre-existing guidance issued under 5(1) of the Social Work (Scotland) Act 1968 and codes of practice published under section 274(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003.
The existing guidance under section 5 of the 1968 Act which may be affected includes guidance about social care assessments for adults, young carers and children.
From 30 November, the extent of section 16 will be limited to children services. On that suspension local authorities should revert to pre-existing guidance relating to adult social care and adult carers.
1.4 Overview of social care assessment provisions
The Coronavirus Act 2020 ("the 2020 Act") makes provision to respond to an emergency situation and manage the effects of a COVID-19 pandemic. Sections 16 and 17 of the 2020 Act allow for an easing of health and social care assessment duties in relation to adult social care, carer support and children's services in Scotland. Regulations, to be in force from 30th November, will suspend these powers as they apply to adult services, including support for adult carers. The regulations leave the powers in place as they apply to children's services, including support for young carers.
These sections of the 2020 Act allow Local Authorities to dispense with particular assessment duties where complying would not be practical or would cause unnecessary delay in providing urgent care and support to people. The aim is to allow Local Authorities to focus their resources on meeting the most urgent needs, thereby protecting the lives of the most vulnerable members of society.
The provisions can be switched on and off as necessary, including in different parts of the country, in order to respond to the COVID-19 outbreak.
When section 16 is in force, authorities are still obligated to do as much as they can to meet people's needs, with appropriate safeguarding measures in place.
1.5 Values and principles
When using these provisions, all decisions made on an individual's social care needs should be considered alongside their individual wellbeing and fundamental human rights.
To support ongoing response planning and decision-making, and to ensure that key ethical values and principles are considered throughout this challenging period, additional considerations are provided in the Ethical Framework for Adult Social Care. This sets out the values which should underpin all our decisions, which include respect, reasonableness, minimising harm, inclusiveness, accountability, flexibility, proportionality and community.
The value and principles enshrined in Getting It Right For Every Child remains central to all decisions which support children, young people and their families. This includes decisions in relation to support for young carers.
1.6 When the assessment duties on Local Authorities will be eased
The powers for Local Authorities to decide whether or not to do full assessments has been available from 5th April when commencement regulations brought section 16 into force. Section 16 can also be switched off ('suspended') by regulations.
These powers will only remain switched on when they are absolutely necessary to allow local authorities to prioritise and provide urgent care without delay. They will be switched off by regulations when they are no longer needed. They can be switched on and off for different areas at different times – for example to deal with a very intense localised outbreak. The intention is that the powers would only be brought into operation for the shortest time possible and only when absolutely necessary to protect people. This guidance has been updated to reflect the suspension of the powers in respect of adult social care assessments and adult carers as of 30 November 2020.
The 2020 Act will expire after a set period under section 89. This will ensure that the emergency provisions it contains are only available for as long as they are needed to deal with the COVID 19 outbreak.
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