National Care Service: Charter and the Law

4 Your home, support network, unpaid carers and independent advocacy section

4.1 ‘You have rights to involve your support network in your support’

4.1.1 In a social work context, section 12A(1B)(c) of the Social Work (Scotland) Act 1968 stipulates that in the process of assessing the care needs of a person accessing care and deciding how any such services are to be provided, a local authority must take account of the views of the person’s carer, “in so far as it is reasonable and practicable to do so”.

4.1.2 Section 12AZA(4) of that Act, which applies where a person being assessed (“the supported person”) needs assistance from another person, stipulates that the local authority must take reasonable steps to identify someone who is able to assist the supported person, and, if the supported person agrees, to involve them in assisting the supported person in relation to the carrying out of the assessment or, as the case may be, communicating in relation to the carrying out of the assessment.

4.1.3 In a children’s services context, section 17(3) and (4) of the Children (Scotland) Act 1995 stipulate that before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, as far a reasonably practicable, ascertain the views of the child and others including their parents, any person who has parental rights in relation to them and any person whose views the authority consider to be relevant. They should have regard so far as practicable to the views of the child concerned, taking account of their age and maturity, and those of the persons mentioned above. There is also a requirement under Article 3 of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 that in all actions concerning children, the best interests of the child shall be a primary consideration.

4.1.4 In relation to unpaid carers, section 27(1) of the Carers (Scotland) Act 2016 states that local authorities and health boards must take such steps as they consider necessary to involve the persons referred to in section 27(3) in the carer services they provide or commission. Those persons are carers in their areas and such persons and bodies representative of carers that the local authority or health board considers appropriate to involve. Section 27(6) states that “’Involvement’, in relation to carer services, includes involvement in considering:

• what needs might call for the provision of services
• what services might be provided to meet those needs
• how those services might be provided
• how the provision of those services might be evaluated

4.1.5 Additionally, section 28 of the Carers (Scotland) Act 2016 places a duty on health boards to involve carers in decisions on hospital discharge for the person they care for.

4.1.6 In a mental health context, section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 provides the right for “[e]very person with a mental disorder] to “access to independent advocacy”. Section 259(2) places a duty on local authorities and health boards to work in collaboration with each other “to secure the availability, to persons in its area who have a mental disorder, of independent advocacy services and to take appropriate steps to ensure that those persons have the opportunity of making use of those services”.

4.1.7 In an adoption of children context, section 47(2) of the Adoption and Children (Scotland) Act 2007 “applies where an adoption support plan is in force” and states the person whom the plan relates, or a member of the relevant family to which the plan relates, may require the local authority to review the plan if they believe they are not complying with any obligations mentioned in this.

4.2 ‘You have rights to get support in a way that respects your private and family life’, and ‘If you receive support in your own home or in a residential setting such as a care home your right to a private and family life will be respected. The rights of other people that live with you or visit you will also be respected.’

4.2.1 Article 8 of the European Convention on Human Rights (which is incorporated into domestic law by the Human Rights Act 1998) states everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.2.2 Article 16 of the United Nations Convention on the Rights of the Child (which is incorporated in domestic law by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) provides that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, family or home.

4.3 ‘If you live in a care home you have a right to choose at least one person who can act as your Essential Care Supporter, if that is your wish.

This Essential Care Supporter:

• will be supported to see you day to day by the care home
• may be involved directly in providing you with care, support and companionship’

4.3.1 Section 78B of the Public Services Reform (Scotland) Act 2010 as inserted by section 14 of the Care Reform (Scotland) Act 2025 requires the Scottish Ministers to make regulations imposing a duty on providers of care home services for adults to “identify for every resident of accommodation provided by the care home service at least one individual as an Essential Care Supporter” unless:

i. Doing so would be contrary to the resident’s wishes, or

ii. Nobody can be identified who is able and willing to be the resident’s Essential Care Supporter

4.3.2 Section 78C of the Public Services Reform (Scotland) Act 2010 as inserted by section 14 of the Care Reform (Scotland) Act 2025 requires the Scottish Ministers to make regulations imposing a duty on providers of care home services for adults to facilitate internal and external visits for residents of accommodation provided by the care home service. They may only suspend visits if they have reasonable cause to believe that it is essential to do so to prevent serious risk to the life, health or wellbeing of –

• in the case of internal visits, persons at the accommodation,
• in the case of external visits (either or both) –
• persons at the accommodation, or
• persons at the place where the visit would take place, but for the suspension.

4.3.3 Section 78E of the Public Services Reform (Scotland) Act 2010 as inserted by section 14 of the Care Reform (Scotland) Act 2025 states that the Scottish Ministers must prepare a code of practice providing guidance on fulfilling the duties imposed in accordance with sections 78B(1), 78C(1) and 78D(1). This code must provide that in fulfilling those duties the following are to be treated as paramount considerations:

• the importance to residents of visits in - promoting their dignity, promoting their physical and mental health and emotional wellbeing, realising their human rights

4.3.4 the importance of recognising and supporting the vital role that people who are not care home staff (for example close relatives and friends) play, alongside staff, in providing their loved ones with regular care (including companionship, personal support and advocacy).

4.4 ‘Unpaid carers, including young carers have a right to:

• a personalised support plan - this can be an adult carer support plan or a young carer statement
• carer support, which may include support to enable breaks from caring
• be involved in decisions about support provided to them and the person they care for
• have access to a local carer information and advice service’

4.4.1 Section 6(2) to (4) of the Carers (Scotland) Act 2016 place a duty on local authorities to identify and offer a personalised support plan to adults and to prepare one if a carer accepts, or if a carer requests one.

4.4.2 Section 12(2) and (3) of the Carers (Scotland) Act 2016 place a similar duty on responsible authorities in respect of young carers.

4.4.3 The Carers (Scotland) Act 2016 Statutory Guidance Part 2 (2.1.88) and (2.2.121) provides guidance that plans should be prepared “within reasonable timescales”.

4.4.4 Section 24 of the Carers (Scotland) Act 2016 places a duty on local authorities to provide support to meet a carer’s eligible needs. Section 25 places a duty on local authorities to consider whether that should be short break support.

4.4.5 Part 4 of the Carers (Scotland) Act 2016 includes provisions for carer involvement in decisions. Section 27 places a duty on local authorities and health boards to involve carers in carer services. Section 28 places a duty on health boards to involve carers in decisions on hospital discharge for the person they care for.

4.4.6 Section 12A(1B) of the Social Work (Scotland) Act 1968 stipulates that in the process of assessing the care needs of a person accessing care and deciding how any such services are to be provided, a local authority must take account of the views of the person’s carer, “in so far as it is reasonable and practicable to do so”.

4.4.7 Section 34 of the Carers (Scotland) Act 2016 places a duty on local authorities to establish and maintain an information and advice service for carers. Section 35 states local authorities must publish a short breaks services statement and section 36 states Scottish Ministers must prepare a carer’s charter.

4.5 ‘People with mental illness, learning disability and personality disorder have a right of access to independent advocacy’

4.5.1 Section 259 of the Mental Health (Care and Treatment) (Scotland) Act 2003 provides for a right of access to independent advocacy for every person with a mental disorder. The term ‘mental disorder’ means any mental illness, personality disorder or learning disability, however caused or manifested, and is commonly understood to include autism and dementia. Section 259(1) confers a duty on each local authority and Health Board to secure the availability of independent advocacy services and to take appropriate steps to ensure that persons in its area who have a mental disorder have the opportunity to make use of those services.

4.6 ‘Disabled people have a right of access to independent advocacy to help them through the Scottish social security system where this is needed’

4.6.1 Section 10 of the Social Security (Scotland) Act 2018 provides for a right of access to independent advocacy for individuals who if, owing to a disability, the individual requires an advocate’s help to engage effectively with the process for determining entitlement to be given assistance through the Scottish social security system. This right is only for independent advocacy in connection with the determination of the individual’s entitlement to be given assistance through the Scottish social security system. Section 10(2) confers a duty on Scottish Ministers to ensure that independent advocacy services are available to the extent necessary for that right to be exercised by the individuals who have it.

4.7 ‘Children and young people have rights to an advocate in certain situations, for example, if they’re going to a Children’s Hearing.’

4.7.1 Section 122 of the Children’s Hearings (Scotland) Act 2011 requires that the chairing member of a children’s hearing must inform the child of the availability of children’s advocacy services, unless the chairing members considers it would not be appropriate to do so taking account of the age and maturity of the child. In practice, this is generally understood as conferring a right to an advocate in this situation.

4.7.2 Section 14A of the Education (Additional Support for Learning) (Scotland) Act 2004 requires that Scottish Ministers must secure the provision of an advocacy service to be available on request and free of charge to the persons set out in section 14(2) in respect of proceedings before the First tier Tribunal:

a) in the case of a child, the child’s parent,

b) in the case of a young person –

i. the young person, or

ii. where the young person lacks capacity to participate in discussions or make representations, the young person’s parent.

4.7.3 Article 12 of the United Nations Convention on the Rights of the Child (which is incorporated in domestic law by the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024) provides that:

• States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child, and
• For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.