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.


17.1 The final part of the consultation in relation to the guidance asked respondents for views on the impact of the guidance on specific equality categories or on human rights.

Question 15 (a): Do you have any views on the impact of the guidance on any or all of the following equality categories:

  • age;
  • disability;
  • gender;
  • lesbian, gay, bisexual and transgender;
  • race; and
  • religion and belief

Some advice to help you to answer this question - By "equality impacts" we mean whether or not the guidance will affect certain groups in a positive or a negative way.

17.2 Forty-three respondents commented on this question. The single largest comment, from around half of these respondents, was that this will have no adverse equality impacts or that it fulfils obligations in relation to equality. A few respondents simply commented that there is a need to consider all the protected characteristics as outlined in the Equality Act 2010 or that there is a need to ensure that service providers and local authority staff can recognise and address the ways in which protected groups can have additional risks and vulnerabilities.

17.3 A small number of respondents commented that they were supportive of the move towards giving service users more choice and control over the support they receive or that they believe in equal rights for all. However, there were also a small number of comments on the need to ensure consistent application, close monitoring and review to ensure the guidance is applied equally to all groups, with one Professional / Regulatory organisation suggesting a need for consultation with all equality groups.

17.4 There were a few suggestions made as to further actions and these included:

  • A panel to oversee SDS assessments and support plans.
  • The guidance should ensure that the Duty of Care Waiver should not prevent natural risk taking behaviour on the part of young people or adults.
  • Reference to carers throughout the documentation.
  • Review of references to disability throughout the documentation.
  • Clarity over the flexibility of employing services from organisations in the same way as with local authorities.

17.5 A few respondents commented that the current format of the guidance is not suitable for individuals with communications or learning difficulties or that alternative guidance should be available for these groups.

17.6 A voluntary organisation wanted to see "a specific action on ensuring that assessments are culturally competent to ensure that the needs of equality groups are accurately captured and reflected in the final assessment and outcomes for the individual" .

17.7 A small number of concerns were noted by respondents and these included:

  • The potential for local diversity to be affected by geographical location or social poverty.
  • The potential for inconsistent application across Scotland.
  • A need to ensure that service providers are suitably trained to deal with people with protected characteristics.
  • The potential of a negative impact on those in older age groups until further clarity is provided on exemptions from SDS and charging policy.

Question 15 (b): Do you have any views on the impact of the guidance on human rights?

17.8 Forty respondents commented on this question. A significant minority commented that self-directed support will enable individuals to have a better quality of life in terms of directing their own support needs or that SDS will enhance human rights. That said, a similar proportion also raised issues over safeguarding in terms of the human rights of individuals who could be at risk. Furthermore, one or two respondents also noted that if the guidance is not applied properly across all groups, this could have a negative impact on human rights.

17.9 A few concerns were noted by respondents and these included:

  • The need for the draft Regulations and Guidance to be accessible and communicated in a way that is easy to understand.
  • A potential for conflict between the cost of services and provision of these services.
  • All local authority staff need to be knowledgeable about service users and their needs.
  • The exclusion of some people such as homeless individuals from being recipients of a direct payment would be in contravention of their human rights;
  • Potential tension between statutory duties contained within the 2013 Act and wider statutory duties, particularly in relation to duty of care and protection issues.

17.10 A small number of respondents referred to the need to consider the guidance and Regulations in the light of other legislation. This included obligations under Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 6(1) of Schedule 1 of the Human Rights Act 1998, Article 19 of the United Nations Convention on the Rights of Persons with Disabilities; and the United Nations Convention of the Rights of the Child.


Email: Aileen McIntosh

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