Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance

Update of statutory guidance originally published in 2014 which retains some of what was in the original guidance but has some important differences.


Footnotes

1 See the section on Public Bodies (Joint Working) (Scotland) Act 2014 for links to more information about the models and organisations involved in health and social care integration and information about the legislative basis of conferring duties on local authorities.

2 Applies to all children assessed as needing a social care service, and is not exclusive to disabled children.

3 See the full 2013 Act here: https://www.legislation.gov.uk/asp/2013/1/enacted

4 See the original 2014 Statutory Guidance here: https://www.gov.scot/publications/statutory-guidance-accompany-social-care-self-directed-support-scotland-act-2013/pages/8/

5 See the full text of the 2014 Regulations here: https://www.legislation.gov.uk/ssi/2014/25/made

6 See the existing SDS Practitioner Guidance at https://www.gov.scot/publications/self-directed-support-practitioners-guidance/pages/6/

7 Read the full IRASC report here: https://www.gov.scot/publications/independent-review-adult-social-care-scotland/

8 Read the full Care Inspectorate Report here: https://www.careinspectorate.com/images/ documents/5139/Thematic review of self directed support in Scotland.pdf

9 Read the full Audit Scotland report here: https://www.audit-scotland.gov.uk/uploads/docs/ report/2017/nr_170824_self_directed_support.pdf

10 To support the consistent implementation of SDS, the Scottish Government, jointly with Social Work Scotland and COSLA, published the SDS Framework of Standards in March 2021.

11 Read the SDS pandemic guidance here: https://www.gov.scot/publications/self-directed-support-guidance-pandemic-published-11-march-2022/

12 See the published statement here: https://www.gov.scot/publications/self-directed-support-values-principles-statement/documents/

13 As explained by the Independent Review of Adult Social Care, 2021

14 See the following website for more information: https://www.un.org/development/desa/ disabilities/convention-on-the-rights-of-persons-with-disabilities/article-19-living-independently-and-being-included-in-the-community.html

15 See Carers Act 2016 statutory guidance, Part 4, Chapter 1 on Carer Involvement in Services: Carers

16 See Section 2: The SDS Act, and Local Authorities' legal duties and powers

17 More information on human rights in Scotland at https://www.scottishhumanrights.com/ projects-and-programmes/human-rights-based-approach/

18 See also sections on eligibility criteria and on roles and responsibilities

19 See the SDS Implementation Plan 2019-2021

20 Read the report (PDF): https://www.audit-scotland.gov.uk/uploads/docs/report/2017/ nr_170824_self_directed_support.pdf

21 My Support My Choice reports are available here: https://www.sdsscotland.org.uk/ mysupportmychoice/

22 The Promise report on children's social care emphasises the importance of positive relationships, nurturing and supporting families to stay together, and reducing barriers, can be read here: Reports - The Promise

23 For more about the NCS, visit: https://www.gov.scot/policies/social-care/national-care-service/

24 This includes community brokerage, independent support and advocacy.

25 See the SDS Framework of Standards here: https://www.gov.scot/publications/self-directed-support-framework-standards-including-practice-statements-core-components/documents/

26 See also Section 4 for information about Getting it right for every child, and see also guidance on Children and Young People (Scotland) Act 2014 Part 12: Services in Relation to children risk of Becoming Looked After: https://www.gov.scot/publications/children-young-people-scotland-act-2014-national-guidance-part-12/documents/

27 See also the 2014 Act itself: https://www.legislation.gov.uk/asp/2014/8/contents/enacted, which made some amendments to the 1995 Act (https://www.legislation.gov.uk/ ukpga/1995/36)

28 This may include mitigation of societal barriers placed that disabled children and their families may face with respect to their access to services, and to give those children the opportunities to live lives which are as normal as possible.

29 From the Carers Charter: https://www.gov.scot/publications/carers-charter/

30 For more information, see the section on the Carers 2016 Act

31 See the full text of the 2014 Regulations here: https://www.legislation.gov.uk/ssi/2014/25/made

32 The following website has been created to help provide support to those affected: https://costofliving.campaign.gov.scot/

33 The full ECHR judgement can be found at this website: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-144115%22]}

34 The National model agreement for SDS Option 1 Direct Payment is in development. A model contract for SDS Option 2 has been developed by Coalition of Care and Support Providers in Scotland (CCPS) to meet all legal requirements and can be either used as it is, or developed further to suit local circumstances.

35 See the relevant section on legislation relating to incapacity for more information on this, as well as the SDS Practitioner Guidance for a full list of issues that practitioners should consider.

36 Please see Section 8 for further guidance on direct payments and employing family members

37 See Core Component 12.3 and other Components relating to budgets the SDS Framework of Standards or the section in this guidance on budget access and flexibility

38 See Section 8 for more on employment which includes information on the responsibility to check

employment status and links to resources such as the PA Handbook and PA Employer's Handbook

39 This should be checked at https://www.gov.scot/publications/updated-procurement-threshold-values-from-1-january-2022/ but at time of writing the threshold value under the 'light touch regime for services' is £663,540. See also the Procurement section.

40 Services such as Care and Repair can help with the organization and delivery of housing adaptations: http://www.careandrepairscotland.co.uk/

41 PA Employer's Handbook: https://handbook.scot/the-pa-employer-handbook/

42 See the Carers Charter here: https://www.gov.scot/publications/carers-charter/pages/1/

43 See SDS Framework of Standards here: https://www.gov.scot/publications/self-directed-support-framework-standards-including-practice-statements-core-components/documents/

44 See the registered social worker guidance here: https://www.gov.scot/publications/role-registered-social-worker-statutory-interventions-guidance-local-authorities/

45 Code of Practice is here: https://www.sssc.uk.com/the-scottish-social-services-council/sssc-codes-of-practice/

46 Guidance on the Role of the Chief Social Work Officer (revised 2016): https://www.gov.scot/ binaries/content/documents/govscot/publications/advice-and-guidance/2016/07/role-chief-social-work-officer/documents/00503219-pdf/00503219-pdf/govscot%3Adocument/00503219.pdf

47 Local Government Act details here: https://www.legislation.gov.uk/asp/2003/1

48 More information about the role of IJBs here: https://www.gov.scot/publications/roles-responsibilities-membership-integration-joint-board/pages/2/

49 Councillors' Code of Conduct here: https://www.gov.scot/publications/councillors-code-conduct-2021/

50 See the Framework of Standards here: https://www.gov.scot/publications/self-directed-support-framework-standards-including-practice-statements-core-components/pages/2/

51 Full text of the 1995 Act here: https://www.legislation.gov.uk/ukpga/1995/36

52 Full text of the Children and Young People (Scotland) Act 2014 here: https://www.legislation. gov.uk/asp/2014/8/contents/enacted

53 See relevant statutory guidance: https://www.gov.scot/publications/children-young-people-scotland-act-2014-statutory-guidance-part-3-childrens-services-planning-second-edition-2020/

54 More information about GIRFEC here https://www.gov.scot/policies/girfec/

55 The Scottish Government is committed to the incorporation of the United Nations Convention on the Rights of the Child into Scottish law as soon as possible.

56 More information specifically on GIRFEC planning https://www.gov.scot/policies/girfec/childs-plan/

57 More information about the GIRFEC practice model: https://www.gov.scot/publications/girfec-national-practice-model/

58 See national child protection guidance here at https://www.gov.scot/publications/national-guidance-child-protection-scotland-2021/

59 For general information and resources concerning The Promise, see https://thepromise.scot/ and on the Implementation Plan see https://www.gov.scot/publications/keeping-promise-implementation-plan/documents/

60 Use of the GIRFEC Wellbeing Indicators should be used in the transition planning process across services. For more on transitions, see https://www.gov.scot/publications/supporting-disabled-children-young-people-and-their-families/pages/transitions/#What%20are%20Transitions

61 See also Support Planning in Section 6.

62 More information about the good transitions principles here: https://scottishtransitions.org.uk/7-principles-of-good-transitions/

63 Statutory Guidance accompanying the Carers 2016 Act is here: https://www.gov.scot/ publications/carers-scotland-act-2016-statutory-guidance-updated-july-2021/pages/1/

64 Access the Carers Charter here: https://www.gov.scot/publications/carers-charter/pages/1/

65 The 2003 Act Code of Practice is here: https://www.gov.scot/publications/mental-health-care-treatment-scotland-act-2003-code-practice-volume-1/pages/2/

66 Access the full text of the Act here: https://www.legislation.gov.uk/asp/2000/4/contents

67 The Self-directed Support (Direct Payments) (Scotland) Regulations 2014: http://www.legislation.gov.uk/ssi/2014/25/regulation/8/made

68 See also Mental Welfare Commission guidance here: https://www.mwcscot.org.uk/sites/default/ files/2021-02/Supported Decision Making 2021.pdf

69 See Guidance on principles that must be applied when making decisions about the needs of adults who lack capacity, here: https://www.gov.scot/publications/adults-with-incapacity-act-principles/

70 See Guidance on managing self-directed support for adults with incapacity guidance, here: https:// www.gov.scot/publications/managing-self-directed-support-for-adults-with-incapacity-guidance/

71 See the full text of the legislation here: https://www.legislation.gov.uk/asp/2007/10

72 Guidance on child protection here: https://www.gov.scot/publications/national-guidance-child-protection-scotland-2021/

73 Local contact details for raising concerns can be found here: http://www.actagainstharm.org/getting-help/find-your-local-contact

74 Additional ASP policy information is here: https://www.gov.scot/policies/social-care/adult-support-and-protection/#:~:text=The%20Adult%20Support%20and%20Protection,illness

75 See Code of Practice, updated July 2022: https://www.gov.scot/publications/adult-support-protection-scotland-act-2007-code-practice-3/

76 See the Procurement Reform 2014 Act Statutory Guidance here: https://www.gov.scot/ publications/procurement-reform-scotland-act-2014-statutory-guidance/

77 See the Procurement Best Practice Guide here: https://hub.careinspectorate.com/media/2591/ sws-self-directed-support-and-prcocurement-best-practice.pdf

78 Statutory Guidance on the Public Bodies 2014 Act here: https://www.gov.scot/collections/public-bodies-joint-working-scotland-act-2014-statutory-guidance-and-advice/

79 See Part 4 of the relevant Act: https://www.legislation.gov.uk/asp/2016/14

80 See Guidance on Provision of communication equipment and support here: https://www.gov.scot/ publications/guidance-provision-communication-equipment-support-using-equipment/. An easy read version of the guidance is also available. For more information on Augmentative and alternative communication, see: https://www.gov.scot/publications/national-augmentative-alternative-communication-aac-core-pathway/

81 See the text of the Equality Act at https://www.legislation.gov.uk/ukpga/2010/15 and further guidance at https://www.equalityhumanrights.com/en/advice-and-guidance/guidance-scottish-public-authorities

82 The initial impact assessment is available https://www.gov.scot/binaries/content/documents/govscot/publications/impact-assessment/2012/03/social-care-self-directed-support-bill-equality-impact-assessment/documents/social-care-self-directed-support-bill-equality-impact-assessment-march-2012/social-care-self-directed-support-bill-equality-impact-assessment-march-2012/govscot%3Adocument/00388949.pdf

83 The My Support My Choice report: https://www.sdsscotland.org.uk/wp-content/ uploads/2020/10/MSMC-Scotland-Report-2020.pdf

84 IRISS report: https://www.iriss.org.uk/sites/default/files/2017-02/insight-35.pdf

85 The Care Inspectorate's thematic review: https://www.careinspectorate.com/images/ documents/5139/Thematic review of self directed support in Scotland.pdf

86 The National Care Service impact assessments: https://www.gov.scot/collections/ national-care-service/#impactassessments

87 Access the SDS toolkit here: https://www.mecopp.org.uk/sds-toolkit

88 The National Islands Plan: https://www.gov.scot/publications/national-plan-scotlands-islands/pages/10/

89 Access the 'Understanding the Social Care Support Needs of Scotland's Prison Population' PDF report https://www.gov.scot/binaries/content/documents/govscot/publications/research-and-analysis/2021/01/understanding-social-care-support-needs-scotlands-prison-population/documents/understanding-social-care-support-needs-scotlands-prison-population/understanding-social-care-support-needs-scotlands-prison-population/govscot%3Adocument/understanding-social-care-support-needs-scotlands-prison-population.pdf

90 More information about the PVG scheme here: https://www.mygov.scot/pvg-scheme

91 More information about PA applications for PVG here: https://www.mygov.scot/apply-for-pvg/ self-employed-or-work-for-a-personal-employer

92 https://www.mygov.scot/pvg-scheme/types-of-work-covered-by-pvg

93 Current legislation – Protection of Vulnerable Groups (Scotland) Act 2007, section 95 (2)-(5) - https://www.legislation.gov.uk/asp/2007/14/section/95

94 See the section in this guidance on adult support and protection.

95 See the full text of the PVG Act at https://www.legislation.gov.uk/asp/2007/14/contents

96 See the full text of the Disclosure Act at https://www.legislation.gov.uk/asp/2020/13/ contents

97 This legislation will include a power for 'umbrella bodies' to countersign PVG certificates on behalf of personal employers (such as supported persons receiving personal care).

98 The National Eligibility Criteria and Waiting Times for the Personal and Nursing Care of Older People (Scottish Government/COSLA 2009), can be found here

99 See Part 3, Chapter 1 of the Carers Scotland) Act 2016 Statutory Guidance.

100 People with No Recourse to Public Funds (NRPF) can access social services. It is a common misunderstanding that people with NRPF status are restricted from accessing all public funds and services, as UK Government's NRPF policy restricts access only to some public funds under immigration rules. Further information about our approach to supporting people who are subject to NRPF to access support and services can be found in the Ending Destitution Together strategy, jointly published by Scottish Government and COSLA in March 2021 at https://www.gov.scot/ publications/ending-destitution-together/documents/ In addition, good practice for social workers or other practitioners relating to the rights of migrant adults and children can be found at this website: https://www.migrationscotland.org.uk/migrants-rights-entitlements/social-services%E2%80%99-support-introduction

101 For more on the needs of children, see the SDS and how it applies to children section

102 More information about how the Scottish Government considers the FAIR and PANEL model here: https://www.gov.scot/publications/national-health-wellbeing-outcomes-framework/pages/9/

103 See also a discussion of key issues in the SDS Practitioner Guidance section on support planning

104 Further information on Looked After Children is here: https://www.gov.scot/publications/ guidance-looked-children-scotland-regulations-2009-adoption-children-scotland-act-2007/pages/15/

105 The SDS Framework of Standards was updated in August 2022 to include Standard 12.

106 See section on SDS and how it applies to children.

107 See section on funding, budget and flexibility and the relevant components in the SDS Framework of Standards.

108 Research in England: https://in-control.org.uk/payment-cards-direct-payments-must-not-undermine-choice-control/

109 Research in Scotland: https://www.alliance-scotland.org.uk/wp-content/uploads/2021/11/ ALLIANCE-SDSS-MSMC-Dumfries-and-Galloway-Report-Oct-2021.pdf

110 SG Circular on free personal care: https://www.sehd.scot.nhs.uk/publications/CC2018_03.pdf

111 Statutory Guidance for Carers Act 2016: https://www.gov.scot/publications/carers-scotland-act-2016-statutory-guidance-updated-july-2021/pages/5/

112 CRAG guidance here: https://www.sehd.scot.nhs.uk/publications/CC2022_01.pdf

113 COSLA charging guidance here: https://www.cosla.gov.uk/__data/assets/pdf_ file/0011/32033/COSLA-Social-Care-Charging-Guidance-2022-23.pdf

114 Social Care Briefing January 2022: https://www.audit-scotland.gov.uk/uploads/docs/ report/2022/briefing_220127_social_care.pdf

115 For more information about integration, please see the Statutory Guidance for the 2014 Act: https://www.gov.scot/collections/public-bodies-joint-working-scotland-act-2014-statutory-guidance-and-advice/

116 Strategic Commissioning Guidance here: https://www.gov.scot/publications/strategic-commissioning-plans-guidance/

117 Statutory Guidance for Part 3 of the 2014 Act here: https://www.gov.scot/publications/ children-young-people-scotland-act-2014-statutory-guidance-part-3-childrens-services-planning-second-edition-2020/

118 Public Bodies Act guidance here: https://www.gov.scot/collections/public-bodies-joint-working-scotland-act-2014-statutory-guidance-and-advice/

119 Procurement best practice here: https://www.gov.scot/publications/procurement-care-support-services-best-practice-guidance/

120 SDSS Procurement report here: https://socialworkscotland.org/wp-content/uploads/2018/09/ Self-directed-Support-and-Prcocurement-Best-Practice.pdf

121 The LITRG factsheet: https://www.litrg.org.uk/sites/default/files/files/LITRG-factsheet-PA-employed-self-employed.pdf

122 HMRC tool: https://www.gov.uk/guidance/check-employment-status-for-tax

123 For more information on rules applying to off-payroll workers providing their services via an intermediary, such as a personal service company, please visit the HMRC website.

124 2014 SDS Regulations are here: https://www.legislation.gov.uk/ssi/2014/25/made

125 Information about the principles of the AWI Act 2000 are here: https://www.gov.scot/ publications/adults-with-incapacity-act-principles/

126 See also frequently asked questions regarding power of attorney and the Adults with Incapacity (Scotland) Act 2000, here: https://www.gov.scot/publications/power-of-attorney-and-the-adults-with-incapacity-scotland-act-2000-guidance/

127 See the relevant section of this Guidance for more about the 2000 Act. See also the AWI Code of Practice (Section 6) here: https://www.gov.scot/publications/adults-incapacity-scotland-act- 2000-code-practice-local-authorities-exercising-functions-under-2000-act/pages/7/

128 See section on Direct Payments and Power of Attorney.

129 See Section 8 of the 2014 Regulations for a list of circumstances where family member may provide support https://www.legislation.gov.uk/ssi/2014/25/made

130 PA Employer's Handbook: https://paemployer.handbook.scot/

131 PA Handbook: https://handbook.scot/the-pa-handbook/

132 PA Network: https://www.panetworkscotland.org.uk/

133 The uplift is applied to a set percentage (national weighting) of contract values, in line with the average full workforce costs. A separate agreed weighted percentage has been set for Personal Assistants who are paid directly through SDS Option 1 budgets.

134 Through usual communications channels; this Guidance will not be revised to take account of updates beyond 2022

135 The contribution from a local authority for mileage may be affected by individual policies regarding receipt of mobility benefits.

136 The Low Incomes Tax Reform Group factsheet on PA employment status contains guidance on travel expenses: https://www.litrg.org.uk/sites/default/files/files/LITRG-factsheet-PA-employed-self-employed.pdf. See also the PA Employer's Handbook for further advice on mileage: https://handbook.scot/. There is also HMRC guidance on business mileage: https:// www.gov.uk/expenses-and-benefits-business-travel-mileage/rules-for-tax

137 Death in Service scheme: https://www.gov.scot/publications/coronavirus-covid-19-social-care-worker-death-in-service-payment/

138 SPSO website: https://www.spso.org.uk/

139 Since April 2017, the Care Inspectorate and Healthcare Improvement Scotland have had joint statutory responsibility to inspect and support improvement in the strategic planning and commissioning of integrated approaches to health and social care.

140 EHRC website: https://equalityhumanrights.com/en/advice-and-guidance/getting-help-and-advice

141 More information on human rights in Scotland here: https://www.scottishhumanrights.com/ your-rights/human-rights-in-scotland/

142 In Control report on human rights here: https://www.sdsscotland.org.uk/accountability-and-the-implementation-of-sds-complaints-redress-and-human-rights-report/

143 More information about judicial review here: https://digitalpublications.parliament.scot/ ResearchBriefings/Report/2022/6/27/0ea1f532-8a16-11ea-a4bf-000d3a23af40

144 Full text of the Human Rights Act here: https://www.legislation.gov.uk/ukpga/1998/42/contents

145 National Taskforce reports here: https://www.gov.scot/publications/national-taskforce-human-rights-leadership-report/documents/

146 Authorities already contribute to several national data collections on health and social care, for example Insights in Social Care published by Public Health Scotland.

147 See the consultation page on the strategy, which links to further information about 'Scotland's Digital Health and Care Strategy' (Scottish Government and COSLA): https://consult.gov.scot/digital-health/data-strategy-for-health-and-social-care/

148 See also the Statutory Guidance on the Carers Act 2016, as this contains diagrams and information (in particular Figure 1 and Table 1) on functions similar to those for the supported person as illustrated in Diagram 1 and Diagram 2 of this guidance. https://www.gov.scot/ publications/carers-scotland-act-2016-statutory-guidance-updated-july-2021/documents/

149 Statutory Guidance accompanying the Carers (Scotland) Act 2016.

150 See statutory guidance for the Public Bodies (Joint Working) (Scotland) Act 2014 for more information on health and social care integration.

151 The Guidance concerning the Duties of Public Authorities in relation to the UNCRC contains working definition of what duty bearers do: https://www.gov.scot/publications/guidance-part-1-section-2-duties-public-authorities-relation-uncrc/pages/4/

152 More information on Guardianship orders can be found here: https://www.mygov.scot/guardianship#:~:text=A%20guardianship%20order%20allows%20someone,care%20and%20personal%20welfare%20matters

153 See the Role of the Registered Social Worker in Statutory Interventions: Guidance for local authorities, which focuses on the role of the registered social worker in formal settings. For more information and definitions concerning social work in Scotland, see Social work in Scotland: Contextual paper

Contact

Email: yvonne.nova@gov.scot

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