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.


6.1 Section 5: Support Planning sets out some key aspects for a support plan: personal outcomes; resources; available choices and other associated information. Key ingredients of support plans from the point of view of the supported person are also included. The planning process is examined as is the format and purpose of the plan itself.

6.2 Risk assessment and risk management are also addressed in this section.

6.3 On the topic of resources, the guidance looks at both financial resources (including approaches to resource allocation) and other resources including:

  • the person's attributes and assets (their skills, knowledge, awareness, background, decision-making skills and contacts);
  • the person's well-being and inner strength;
  • the person's extended family, close friends, work colleagues and community;
  • the budget or funding which the person can access to meet their eligible needs;
  • the professional's knowledge, expertise, background and contacts;
  • the local resources, shops, health and education services, community facilities (libraries, sports centres, community "hubs" etc.), and;
  • any other sources of information, advice and support available to the supported person.

6.4 The choices that must be made available to the supported person are detailed in the Act, as is the way in these choices must be offered. The guidance discusses each of the four options in the Act:

  • Option 1 The making of a direct payment by the local authority to the supported person for the provision of support.
  • Option 2 The selection of support by the supported person, the making of arrangements for the provision of it by the local authority on behalf of the supported person and, where it is provided by someone other than the authority, the payment by the local authority of the relevant amount in respect of the cost of that provision.
  • Option 3 The selection of support for the supported person by the local authority, the making of arrangements for the provision of it by the authority and, where it is provided by someone other than the authority, the payment by the authority of the relevant amount in respect of the cost of that provision.
  • Option 4 The selection by the supported person of Option 1, 2 or 3 for each type of support and, where it is provided by someone other than the authority, the payment by the local authority of the relevant amount in respect of the cost of the support.

6.5 This section then outlines the circumstances in which a supported person's range of choices may be limited by a professional.

6.6 The guidance looks at how to put into practice the requirements in the 2013 Act; that professionals must provide the information and advice needed to enable the supported person to make an informed decision. It also talks about the requirement to point the supported person towards other sources of information out with the local authority.

6.7 Key forms of information and support are offered to assist local authorities or health boards.

6.8 The role of user-led support and information organisations is outlined as is the use of advocacy services.

Question 4a: Was this section of the guidance clear and easy to understand?

6.9 Most of those who answered (73) said yes this section of the guidance was clear and easy to understand. Ten said no and 61 did not give an answer to this question.

Question 4b: How useful did you find this section of the guidance?

6.10 The table below shows that most of those who replied (51) said it was quite useful and 21 said it was very useful. Ten respondents said it was not very useful while one individual said not at all useful. The remainder (61) did not give an answer.

Table 6.2 Usefulness of Section 5 of the guidance

Respondent group Very useful Quite useful Not very useful Not at all useful No response
Individuals (21) 3 3 - 1 14
Local authority (24) 3 13 6 - 2
Community Health Partnership (4) - 2 1 - 1
Health Board (2) 1 - - - 1
Voluntary sector organisation (57) 10 20 1 - 26
Private Sector organisation (2) 1 - 1 - -
Professional or regulatory body (8) 1 3 - - 4
Support & information/Advocacy (16) 1 6 1 - 8
Other (10) 1 4 - - 5
Total (144) 21 51 10 1 61

Question 4c: Do you have any further comments on this section of the guidance?

6.11 Comments were noted in 107 responses; again these were very detailed and lengthy.

6.12 This section of the guidance and the general principles included in it were widely welcomed by respondents; especially the focus on person centred planning. A number of respondents commented on the length of this section and there were suggestions that it could be spilt up. There was also a comment that the section contains a large amount of generic professional practice guidance.

6.13 General comments on this section of the guidance came from across respondent groups and mainly dealt with factors which respondents felt had been omitted. There were a number of themes noted in small numbers of responses and these are outlined in the following paragraphs.

6.14 The range of options was widely welcomed although there were requests for examples of how Option 2 in particular could be used.

6.15 There were a number of points specific to disabled people; including comments that disabled people have been frustrated by inconsistencies in support planning across local authorities. A support & information/advocacy respondent commented that disabled people have expressed their frustration with "the inconsistency within local authorities' support planning methodologies and training that has resulted in poor or insufficient support planning."

6.16 Respondents agreed that there is a definite link between the individual's eligible needs, their outcomes and the support required to meet those needs and outcomes. Respondents saw a need to include a reference which highlights the legal duties in the Equality Act 2010 to make adjustments for equal access.

6.17 Respondents wanted to see the legal duties the Equality Act 2010 places on a local authority included at this section.

6.18 Issues over a supported person's capacity to be an employer and understanding of all that entails were mentioned; the guidance could recommend that people are referred to appropriate support and information if they make this choice.

6.19 There were also concerns about "People who have the capacity to make an informed choice, but lack the ability to recognise and safeguard themselves against harm by unscrupulous members of their families and members of the public; parents whose substance abusing lifestyle may cause concern, choose Option 1 to meet the support needs of their child; individuals, who may represent a risk to other people, but are not subject to any of the compulsory orders under Regulation 11 of Part 4 of the Self-directed Support (direct Payments) (Scotland) Regulations 2013" (local authority).

6.20 A number of respondents were in agreement that any resource allocation systems are not a substitution for the skilled judgement of a professional and that professional judgement is a crucial element of resource allocation. That said, a significant number of respondents noted that professional judgement alone should not be the basis for decisions about resource allocation and noted a need for transparency throughout this process or a need for mechanisms to make local authorities accountable for their systems. Allied to this, a voluntary organisation noted the need to ensure that local authorities have adequate staff training in place.

6.21 A voluntary organisation submitted a best practice example "to highlight how a change management programme around Self Directed Support can be designed and implemented".

6.22 Several respondents commented on Table 6 (Support Plans: key ingredients) describing it as clear and helpful; the use of key ingredients rather than prescription was welcomed. Respondents suggested that there should be a focus on "how the supported person will communicate their support needs, outcomes and personal preferences" (local authorities).

6.23 Respondents also saw the need for a stronger description of how to develop a proportionate approach.

6.24 The guidance on professional discretion to limit the choices available to individuals was welcomed but there were some specific concerns identified by respondents. In particular, the language was not seen as particularly accessible; respondents asked that it be simplified. There were also calls for information on an appeals process

6.25 The need to allow wider professional judgement and discretion was stressed by many, as was the need for child and adult protection to take precedence. Various examples and reason were given including a local authority that pointed out: "This option may be considered to place an already existing adult or child protection service user at greater vulnerability and in these instances it would be the mechanism that the local authority object to and would need to refuse under the duty of care. This is not clear within the guidance".

6.26 Provision of information was seen as central to the delivery and management of SDS options. For this reason, respondents wanted the language to be stronger and wanted to be sure that staff had the correct knowledge and time available to communicate to the supported person.

6.27 Respondents welcomed the inclusion of user-led support but a small number of voluntary organisations asked that the language here be strengthened, for example: "It should be far stronger than simply the "professional should point the supported person towards other sources of information out with the local authority." There should be a duty upon the local authority to actively involve disabled people-led support and information organisations who are independent and not trying to sell the supported person services" (voluntary organisation)

6.28 Comments on the need to strengthen the language were made in relation to many of the paragraphs in this section.

6.29 There was widespread acknowledgement of the importance of advocacy; some described it as vital at every stage and wanted the guidance to reflect this.


6.30 There was welcome for the section on risk, which respondents described as helpful. However, respondents felt that examples of risk factors would be helpful as people have different ideas of what constitutes a risk.

6.31 The need for reference to risk tolerance and the balance between that and safeguarding was also seen as important.

6.32 Respondents commented that risk assessment and management are subjective; there is no substitute for good professional judgement and this should be allowed. However as risk management is complex, respondents acknowledged that there may be differences of opinion, perhaps between the supported person and the professional; details of any disagreement should be recorded and the guidance should include information on making a complaint.

6.33 Respondents wanted to see the guidance emphasise the joint responsibility of the supported person and the professional "where it is clear that the supported person has the capacity to make well informed decisions about risk" (local authority). There was a comment that the risk assessment may need to involve both health and social care, depending on the circumstances of the individual.

6.34 However, a voluntary organisation reported that "There is evidence that people receiving support often feel that risk management is imposed on them: 'risk is often perceived negatively by people using services (used as an excuse used for stopping them doing something) - but risk needs to be shared between the person taking the risk and the system that is trying to support them."

6.35 Another commented on the need to manage 'tensions' between "professionals who seek to enable the service user to accept a manageable risk and families who seek to ensure that the person they care for is safe".

6.36 A voluntary organisation wanted to see consideration given to developing practice in this area; this respondent mentioned that in Glasgow risk enablement process is developing as an evidence based approach to risk forecasting.

6.37 There were comments that risk is hard to manage in relation to people with autism as they may not be able to imagine the consequences and may therefore have unrealistic ideas.


6.38 Some respondents welcomed the range of resource allocation to be considered, although once again, there were comments that there needs to be more discussion placed upon the involvement of service users and carer groups, with more clarity on how this process would work. A small number of voluntary organisations noted the need to include community development staff and the third sector within the planning for sourcing and developing opportunities within the community.

6.39 There were also some requests for further guidance for local authority staff, service users and others involved in the process.

6.40 A key concern that emerged was that there should be a single resource allocation approach for the whole of Scotland (this comment came primarily from voluntary sector organisations) and noted concerns over a 'postcode lottery' if there is no single approach to resource allocation.


Email: Aileen McIntosh

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