Section 2: The SDS Act, and Local Authorities' legal duties and powers
From 1st April 2014, the Act 2013 places a duty on local authorities to offer people who are eligible for social care a range of choices over how they receive their support.
This section provides a summary of those duties and powers. There are four main legal reference points for the guidance:
- The legal basis for choice over care and support: The Social Care (Self-directed Support) (Scotland) Act 2013;
- The duty to assess an adult's need for care and support: Section 12A of the Social Work (Scotland) Act 1968;
- The legal basis for support to children: Sections 22 and 23 of the Children (Scotland) Act 1995;
- The legal basis for identifying carers' needs and providing support: Parts 2 and 3 of the Carers (Scotland) Act 2016.
The duties of local authorities and their delegates derive from the four statutory principles (participation and dignity, involvement, informed choice and collaboration) mentioned in the previous section.
Duties required by the 2013 Act
Duty to have regard to the general principles of involvement, informed choice and collaboration as part of the assessment and the provision of support
- This duty applies with respect to adults, children and their families, adult carers and young carers;
- The 2013 Act provides general principles to which the authority must have regard to in carrying out all of its functions under Part 2 of the 1968 Act (with some exceptions), all of Section 22 and 23 of the 1995 Act, Sections 1 and 2 of the 2013 Act and parts 2 and 3 of the 2016 Act.
What does this mean?
- The authority, principally through its social workers, must collaborate with the supported person (including unpaid carers where they are to be supported) when they undertake the assessment and provide support. It should take steps to understand what outcomes matter most to that person, and to establish the amount of choice and control the person wants to have in meeting their outcomes;
- The authority should take steps to ensure that the person makes informed choices as part of their social worker-led assessment (or adult carer support plan or young carer statement) and in selecting their support options;
- There should be no assumption that the Scottish Government, local authorities or social workers consider any option as a preferred or default option, only that the supported person can choose the option that works best for them, in accordance with the level of choice and control they want to have;
- Supported persons are entitled to, and may benefit from, discussing their support with others. Authorities should therefore not prevent supported persons or their representatives to discuss any aspect of their support with others if they wish to do so.
See further guidance on assessment for the supported person and carers
Duty to take reasonable steps to facilitate the person's dignity and participation in the life of the community in which the person lives.
- This duty applies with respect to adults, children and their families, adult carers and young carers and forms part of the responsibilities taken forward by social workers at assessment and review;
- The 2013 Act provides a further general principle related to independent living. This principle should guide and inform the identification of need and the provision of support following the assessment. The authority should take reasonable steps to facilitate the principle that the person's right to dignity is respected, and to facilitate the principle that the person's right to participate in the life of the community is to be respected.
This means that that the general principles of participation and dignity should guide and inform the authority's approach throughout the process.
Duty to offer four options to the supported person
- This applies with respect to adults, children and their families, adult carers and young carers;
- Under the 2013 Act, the authority has a duty to offer four options to all adults, children and carers eligible for support or provided with services. The options are intended to support the flexibility and creativity allowed under the social welfare and wellbeing duties so that both adults and children can exercise choice and control at the level at which they want to exercise it.
See Section 3 for more detailed information on the four options as described by the 2013 Act.
See definition of 'supported person' and other definitions in Annex 2.
Duty to explain the nature and effect of the four options and to signpost to other sources of information and additional support (applies to adults, children/families, adult carers and young carers)
- The authority is placed under a duty to explain the nature and effect of the four options provided under the 2013 Act as part of the assessment process. This means that the authority's social work function should explain what each of the four options mean, taking account of the amount of choice and control that the supported person wants;
- This means that the social worker should discuss with the supported person the varying degrees of flexibility and control associated with each option, and what the different options might look like in practice for the supported person given their circumstances, assets and circles of support;
- The authority is placed under a duty to provide information about other persons or organisations outwith the authority who can provide assistance or information about the options and how to manage the options. Section 9 of the 2013 Act ascribes a range of duties in relation to the social worker's provision of information and support to any adult, child or carer who needs it. Section 19 of the 2013 Act also states that authorities must, 'in so far as is reasonably practicable' promote (a) 'a variety of providers of support, and (b) 'the variety of support provided by it and other providers';
- The authority is placed under a duty, where it considers it appropriate to do so, to provide information about organisations and individuals who can provide independent advocacy services.
The support and information provided to the person, directly by the authority or through others on its behalf, must be impartial, balanced and well-informed. The emphasis should be on supporting the person to make an informed choice. The authority should ensure that social workers and other staff are provided with appropriate training, guidance and support in order to ensure that they can discharge their duties and explain the options in a clear and accessible way.
See also SDS Framework of Standards including Standard 1: Independent Support and Advocacy.
Duties required by other relevant legislation
Duty to assess needs for a community care service
- The authority is under a duty to conduct an assessment of a person's needs for community care services (Section 12A of the Social Work (Scotland) Act 1968);
- So far as it is reasonable and practical to do so, authorities must also take carers' views into account in assessing the needs of the cared-for person and in deciding whether and how to provide services to the cared-for person.
Duty to safeguard, support and promote the wellbeing of children
- The authority retains its duty to safeguard and promote the welfare of children in their area who are in need . This remains a wide-ranging duty, with flexibility for the authority to take a range of steps to safeguard and promote wellbeing;
- The authority is under a duty to promote the upbringing of children in need by providing a range and level of services appropriate to the child's needs (section 22 of the Children (Scotland) Act 1995);
- The authority is under a duty to ensure that services provided under Section 23 of the 1995 Act are designed to minimise the effect of any disability on disabled children and to minimise the effect on any child who is affected adversely by the disability of any other person in their family;
- The authority is under a duty, where requested to do so by the child's parent or guardian to carry out an assessment of the child or any other person in the child's family to determine the needs of the child (section 23 (3));
- The authority is under a duty to work in partnership to plan and deliver services and support as a Children's Services Planning Partnership (CSPP). This is organised and equipped to deliver high quality, joined-up, trauma informed, responsive and preventative support to children, young people and families through each area's Children's Service Plan (Part 3, Children and Young People (Scotland) Act (2014);
- So far as it is reasonable and practicable to do so, the authority is under a duty, when assessing the child's needs under Section 23 of the 1995 Act, to take account of the views of the parent or guardian of the child, the views of the child and the views of the carer.
Duty to identify carers' needs and support carers
- The responsible local authority must offer an adult carer support plan (ACSP) or young carer statement (YCS) to anyone they identify as a carer and prepare one for those that accept. They must also prepare an ACSP/YCS for anyone who meets the definition of a carer if that person requests one;
- The authority has a duty to provide support to any carer whose needs for support (identified as part of the plan or statement) meet the local eligibility criteria. The authority also has a power to provide support for carers' needs which do not meet those criteria, for example signposting to wider community support.
Duty to promote social welfare
- The authority is under a duty to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area (Section 12 of the 1968 Act). This remains a wide-ranging duty, with flexibility for the authority to take a range of steps to promote social welfare. The full range of options and additional flexibility provided for under the 2013 Act fall within the scope of promoting social welfare.
Duty to make inquiries
- The authority has a duty to make inquiries about a person's well-being, property or financial affairs if it knows or believes that the person is at risk of harm and that it might need to intervene in order to protect the person's well-being, property or financial affairs, as per the Adult Support and Protection (Scotland) Act 2007.
Powers under legislation enacted prior to the 2013 Act
Power to provide support without an assessment
- 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 full assessment where the local authority considers that the need for services is a matter of urgency (an initial emergency assessment of need would still be required in line with Getting It Right principles). 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 as possible. 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 would be 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;
- Where a local authority chooses to provide support in this way, it should, pending a full assessment, be prepared to discuss with the person any of the four options in order to find what will work best for the supported person to receive support until a full assessment can be carried out. The supported person's choices and preferences should be respected within short term care and support plans;
- The approach described in this section of the guidance must be carried out in the context of both the 2013 Act and the accompanying Self-directed Support (Direct Payments) (Scotland) Regulations 2014) (the '2014 Regulations').
See the section on eligibility and assessment
Power to provide emergency assistance in cash
- The authority has the power (through section 12 of the Social Work (Scotland) Act 1968) to provide assistance in cash as well as in kind in the case of an emergency. This remains a different form of assistance to a direct payment (which is now covered under the 2013 Act).
Power to make arrangements with voluntary and other organisations
- The authority has the power (through section 12 of the Social Work (Scotland) Act 1968) to make arrangements with voluntary organisations or other persons, including other local authorities, where they are able to assist in the performance of the relevant functions (Section 4 of the 1968 Act)
Legal considerations concerning the implementation of duties
At the time of writing, social work and social care in Scotland – as in other parts of the UK and Europe – has been severely impacted by the long-term impact of COVID, by the cost of living crisis the impact of Brexit and other workforce issues.
This presents a variety of challenges, including the use of eligibility criteria for the delivery of social care and potential for the reduction of quality of choice and control experienced by supported people and carers.
However it is important to note that the 2013 Act says that local authorities must have regard to' the principles of involvement, informed choice and collaboration (section 1) and must 'take reasonable steps to facilitate' respect for the dignity of the person and their right to participate in the life of the community in which the person lives (section 2), and must take 'reasonable steps to enable the supported person to make a choice' (section 6).
This means that the 2013 Act cannot compel authorities to, for example, guarantee that all SDS options are available (see also the section on the discretion of local authorities).
An example of how courts have interpreted this in practice is a European Court of Human Rights judgment which held that local authorities must comply with their statutory duties, including carrying out assessments and respecting people's dignity, but that local authorities have discretion in how they resource social care.
To avoid unnecessary legal action and to focus on how best to enact the spirit as well as the letter of the 2013 Act, authorities who are facing significant delivery challenges should ensure that where a full range of options are not available, social workers and other duty-bearers within the authority should take reasonable steps to find solutions and compromises. They should be open and transparent with the supported person, particularly in explaining why preferred options are not available and what alternatives are available.
This can help ensure a focus on what matters to the person in the form of agreed personal outcomes, and that trust-based relationships and good conversations between practitioners and people are at the heart of decisions.
For more information, see also SDS Framework of Standards (Standard 9: Transparency) and the section on complaints
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