Social Care (Self-directed Support) (Scotland) Act 2013: Draft Regulations and Statutory Guidance – Analysis of Consultation Responses

Report of the analysis of the written responses to the Scottish Government consultation on the Social Care (Self-directed Support) (Scotland) Act 2013 draft regulations and Statutory Guidance.


10.1 Section 9.1: Children and Families looks at the 2013 Act in relation to children (and their families). The guidance also looks at the provisions of the 2013 Act within the wider policy and practice framework for children and young people including: the Scottish Government's Guidance and Regulations on the Children (Scotland) Act 1995; Getting it Right for Every Child; and the Children (Scotland) Act 1995.

10.2 Guidance is given on providing choice in the context of the wider safeguarding role and on the involvement of the child in making and managing choices.

10.3 Issues around transition from children's support to adult's support are examined as are issues around incapacity.

10.4 This section of the guidance also looks at the duty on local authorities to promote the options available to children and families.

Question 8a: Was this section of the guidance clear and easy to understand?

10.5 Most of those who replied (63) said this section of the guidance was clear and easy to understand. Eight felt it was not and 73 did not reply.

Question 8b: How useful did you find this section of the guidance?

Table 10.2 Usefulness of Section 9.1 of the guidance

Respondent group Very useful Quite useful Not very useful Not at all useful No response
Individuals (21) 2 3 1 - 15
Local authority (24) - 16 5 1 2
Community Health Partnership (4) - 2 1 - 1
Health Board (2) - 1 - - 1
Voluntary sector organisation (57) 6 15 2 - 34
Private Sector organisation (2) - - - - 2
Professional or regulatory body (8) - 4 - - 4
Support & information/Advocacy (16) 1 5 1 - 9
Other (10) 1 4 - - 5
Total (144) 10 50 10 1 73

10.6 As shown in the table above, most of those who commented said that this section of the guidance was quite useful (50). Ten respondents said it was very useful, ten said not very useful and one, a local authority, said it was not at all useful. Seventy-three did not reply.

Question 8c: Do you have any further comments on this section of the guidance?

10.7 Seventy-one respondents commented and again many of these responses were detailed and lengthy. Several themes did emerge and these are outlined below.

10.8 Although one local authority said they were "comfortable with this section of the Guidance" many others included a variety of suggestions. Several local authorities, along with some respondents from other groups, all submitted very similar responses to this question. Where a quote is not attributed to a particular group it can be taken that this comment appeared in multiple responses.

10.9 While one CHP commented that they saw the references to Getting it Right for Every Child (GIRFEC) and to the SHANARRI indicators (Safe, Healthy, Active, Nurtured, Achieving, Respected, Responsible, Included) as positive but felt that the section needed more detail on the legal framework and on legislation.

10.10 However, the need for integration with GIRFEC was mentioned in many responses; one local authority commented that this section appears to be a bolt-on and suggested separate guidance that integrates with GIRFEC. They said "There has been significant work already in local authorities on developing GIRFEC with good integrated assessment processes, a strong focus on outcomes in delivering the child's plan and the role of the named person. This learning could be applied by community care services".

10.11 Another main point raised by local authority respondents, along with others from different groups, was that this section needs more work. As children and young people are not covered by the other sections of the guidance, it was felt that much more detail is needed in this section. In particular, several respondents commented on the need for guidance "around how SDS will work in the wider Children and Families context." A voluntary organisation commented: "It was felt that the appearance of a children's and families section was particularly at odds with how SDS process applies across the lifespan of an individual. There were concerns due to its representation as a separate section that other sections might not directly apply. It was felt to be indicative of a lack of foresight as to how SDS processes apply equally across the lifespan."

10.12 Commenting on exclusions in the draft Regulations, several respondents felt that local authorities should be allowed some discretion for children or young people fleeing domestic abuse, or who are homeless. Similarly, children and young people living with a Shared Lives carer, kinship care or in long term foster care may need access to direct payments. This would be particularly important in the run-up to transition to adult services. Access to support and direct payments for the families of children and young people in residential care, but who go home during holiday periods was also mentioned.

10.13 A voluntary organisation commented on the need for young people approaching transition to have an indicative budget, along with information on services, to give an idea of the type and quality of care that would be accessible.

10.14 Respondents wanted to see the communication needs of each young person considered to ensure they are able to access advice and information about support and about support during transition to adult services.

10.15 There was a call for a dedicated Transition Team with a key worker available to each young person in each local authority.

10.16 A variety of other comments were made in relation to transition to adult services. There were similar queries and concerns from several respondents over "what should happen during transition to adult services where there are issues about a young person's capacity to consent when they reach 16. There needs to be more clarity about the legal framework within which decisions can be made on their behalf once they are 16." Although the guidance says that families should be informed about Power of Attorney or Guardianship, respondents pointed out that families cannot apply for Power of Attorney; the young person would have to have the capacity to grant it. Respondents went on to say: "Is it expected that in all such cases a guardianship application should be made and if so the necessary time to progress this would need to be stressed to families to minimise the risk of disruption of support and ensure that legal requirements are met. There are significant concerns that families will feel pressured into providing support."

10.17 There would be legal issues should it be deemed that Guardianship was not necessary. The young person may not be capable of taking on the role of employer. Respondents outlined the issues: "This could create legal issues for both the family and the local authority in terms of who is the lawful employer and the status if the personal assistant(s) i.e. redundancy would not automatically apply if the young person is unable to take on the role of employer".

10.18 There was a call for the rules for support for children and young people to mirror those for adults as far as possible, "to avoid rules that create additional barriers at transition" (support & information/advocacy organisation).

10.19 Transitions faced by young carers, such as from school into employment, were also mentioned; respondents wanted to see measures to ensure support for these young carers.

10.20 Respondents wanted to see more guidance on SDS support for young carers, especially if their views conflict with those of the parent; there needs to be a way to ensure their voice is heard. In addition, respondents wanted to see more guidance on situations where the family's view differs from that of the professional.

10.21 In relation to the four options in the 2013 Act that must be made available to the supported person as part of the assessment process and, in particular, the circumstances where options 1 and 2 should not be offered, several respondents again called for discretion to offer these "even where compulsory orders are in place, since there may be some useful interventions which would empower the child and the parent to improve their situation."

10.22 In cases where parents are being supported to make decisions on the choice of support, respondents saw a need for guidance for local authorities and professionals where it is believed the parent is not acting in the best interests of the child.

10.23 Similarly, where protection measures are in place there will need to be "explicit guidance to ensure that if it is deemed necessary to remove parental choice where a parent presents a risk that local authorities have a due process to follow to ensure a child's service rights are managed" (local authority).

10.24 Several respondents commented on the need for specific guidance over children who have care and support needs under Section 22 of the 1995 Act. Again, respondents wanted to see an element of discretion allowed as not all children and young people in this situation would be eligible for SDS support.

10.25 Paragraph 96 says that 'the definition of a child in need, as provided in Section 22, is a broad definition'; a respondent asked for clarity over who is actually covered. A voluntary organisation asked that the guidance includes a reminder that "the Act specifies that 'children in need' includes 'Children who have emotional, behavioural and mental health problems."

10.26 The need for young carers to be included in the definition was stressed by one voluntary organisation.

10.27 Respondents felt that there was a lack of guidance or consideration of child protection issues. The need for greater integration with child protection legislation and links with the Children's Hearings system was also highlighted; respondents said that confirmation was needed that: "even where it would appear that all four SDS options could be offered, child protection concerns will always take precedence over the options for SDS. For example, if a family is being investigated due to concerns for a child, a direct payment would not be the most appropriate option until the local authority is satisfied that it would not put the child at risk. Professional assessment and the family's assessment of need could be in conflict and professional judgement should be applied in relation to safeguarding duties". Respondents saw a need for guidance around SDS where compulsory measures or statutory orders are in place or are imposed.

10.28 Respondents commented that SDS should be used to encourage and empower both the supported young person and their families; it should not create dependency.

10.29 Respondents wanted to see accessible training for family carers and personal assistants which would be "sufficient to ensure children are not put at risk". The need for the capacity of a parent to manage a direct payment on behalf of a child to be taken into account was also mentioned.

10.30 In relation to personal assistants, several respondents expressed concern that "there is no legal requirement for parents to ensure that personal assistants are members of the PVG scheme". A CHP respondent wanted to see the guidance used "to strengthen the requirements for PVG checking for anyone caring for children (or vulnerable adults)".

10.31 There was a comment that NHS services must be fully engaged in the decision making process and several comments on the lack of mention of Education services in the guidance. One local authority said: "Given the primacy of Education in the lives of children and young people, and the fact that an education professional will act as Named Person, it is surprising that Education were not addressed in the guidance in the same way that NHS professionals have been (e.g. discussion about joint funding)." A voluntary organisation commented: "From the age of 16, a young person could be directing their own support, which brings with it significant responsibilities, and it will be important that colleagues in education are working to prepare young people who have social care needs for this, and educate them about their rights." Another voluntary organisation suggested: "Education should take the lead in co-ordinating services as under the Education (Additional Support for Learning) (Scotland) Act as it is the responsibility of schools Named Person to coordinate young people's transition initially. This role is not fully realised in some education departments in Scotland even though it is a duty."

10.32 A local authority and a voluntary organisation said that Children's Services are not ready to offer SDS to all children in need. There was a request for a lead-in time to prepare for SDS in 2015. The local authority commented: "For example, although we are working toward releasing funding from services this will be a phased approach; we are not at the stage of being able to offer a direct payment within child protection. Our recommendation is that SDS is made available to children with a disability and their families, at least in the first instance". The support & information/advocacy organisation saw a need for urgent action:

"[The respondent] believes the short term complexity in the implementation of SDS - combined with children and young people's services not being prepared for SDS - may leave a number of stakeholders without a proper framework to deal with complex and sensitive situations."

10.33 There were requests for case studies to be included in this section. Some examples of where SDS has been implemented for children without additional support needs would be beneficial. Other requests included:

  • The need for access to independent advocacy.
  • Clearer guidance on looked after and accommodated children.
  • The need for examples, case studies and links to good practice in this section.


Email: Aileen McIntosh

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