2. Delaying Assessment in Urgent Situations
2.1 SDS Option 1
As set out in Section 5 of this guidance, enabling people who choose SDS Option 1 to employ family and friends as Personal Assistants provides important flexibility. In conjunction with this approach, we are encouraging local authorities to consider providing support through Option 1 pending an assessment being carried out. Where appropriate, this approach will take advantage of the flexibility offered by Option 1 to enable support to be put in place sooner than might otherwise be possible.
Existing powers in section 12A(5) of the Social Work (Scotland) Act 1968 allow a local authority to provide or arrange for the provision of support without the need for a prior assessment where the local authority considers that the need for services is a matter of urgency. The power in section 12A(5) does not remove the need to carry out an assessment altogether, but delays it, requiring a local authority to assess the person's needs as soon as practicable thereafter. The legislation does not set out a specific timeframe in which the assessment must be carried out, but notes that this should be as soon practicable. In practice, that might be as soon as practicable based on the practitioner's judgement of the needs of the individual, their situation and the perceived level of risk is available.
This section of the guidance is intended to encourage practitioners to consider using the existing powers in the 1968 Act where appropriate to allow Option 1 to be used pending an assessment. This approach is being encouraged in response to ongoing system pressures, including the effects of the pandemic, where circumstances are considered urgent, and to take advantage of the flexibility offered by Option 1. In particular, the use of these powers might be considered where a person needs to wait longer than normal for an assessment to be carried out and their circumstances mean that the need for services is considered urgent. This might include circumstances when an individual's discharge from hospital is delayed as a result of having to wait for an assessment and the person's condition is such that they require assistance as a matter of urgency.
Social workers are encouraged to take account of all relevant factors, including the impact of the ongoing systems pressure on the level of risk to an individual, in their consideration of the urgency of the need, as well as the likely effect on a person staying in hospital longer than necessary.
We recognise that this approach may not be appropriate for every person and situation. Social workers and other relevant practitioners should continue to use their professional judgement to decide when it is right to take this approach, including their assessment of risk through the referral and screening process as appropriate.
The approach described in this section of the guidance must be done in the context of both the Self-Directed Support (Scotland) Act 2013 and the Self-directed Support (Direct Payments) (Scotland) Regulations 2014. Both of these still apply, particularly regulation 8 of the latter, which sets out the circumstances in which a family member may provide support, and regulation 9, which prevents family members providing support where they are placed under undue pressure to do so, or where the recipient of the SDS is under undue pressure to agree to a family member providing support. If the family member is acting as Power of Attorney or Guardian and managing a Direct Payment, it is prohibited under the Regulation 9 of the Direct Payment Regulations for them to be employed as a PA for the person who granted the Power of Attorney or is subject to the Guardianship Order. Nothing in this guidance removes the need to follow SDS legislation.
As indicated in the SDS Framework of Standards, Standard 2 Early Help and Support encourages local authorities and Health and Social Care Partnerships (HSCP) to carry out good conversations to identify solutions to improve the quality of life of people who may require social care services and/or support. As good practice, discussion of SDS options may take place at this point, and consideration should be made of using Option 1 before an assessment is carried out where this would be suitable. Social workers will still be expected to use their professional judgement to assess that the person has capacity to make a decision and that it is appropriate to make a payment through Option 1 before an assessment is carried out. Where an individual does not wish to use Option 1 or where the social worker does not consider it appropriate, this approach should not be used.
Social Work (Scotland Act) 1968 – Section 12A(5): "Nothing in this section shall prevent a local authority from providing or arranging for the provision of community care services for any person without carrying out a prior assessment of his needs in accordance with the preceding provisions of this section if, in the opinion of the authority, the condition of that person is such that he requires those services as a matter of urgency."
Where a local authority chooses to provide support in this way, it should, pending assessment, seek to offer a level of support to enable a person to employ a Personal Assistant, including a family member or friend as a Personal Assistant. This will help to provide a quick and consistent way for an individual to receive support until an assessment can be carried out. As good practice, discussions should be had with all parties involved to ensure there is minimal risk to the person employing a family member or friend and also that the Personal Assistant, if a family or friend, is able to provide the necessary care and support.
2.2 Other Approaches
This section of the guidance is intended to encourage social workers to consider offering Option 1 where appropriate and where the need for support is urgent. This will help people to receive support as soon as possible. It focusses on Option 1 because of the flexibility it offers, including the potential to help people return home as soon as possible.
However, the needs of the person must always take precedence. Where a local authority considers that support is required urgently, but believes that SDS Option 1 is not appropriate, it should use the appropriate SDS option best suited to the person's needs.
If the person who is in need of support does not wish to use SDS Option 1, this approach must not be used.
This approach is supported by the letter from the Minister for Mental Wellbeing and Social Care to Local Authority Chief Executives, Self-directed Support Leads and Local Authority Chief Social Work Officers dated 11 March 2022.
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