Section 5: The 2013 Act and other relevant legislation and policies
Since the 2013 Act came into force, there have been a number of statutory changes, including the Public Bodies (Joint Working) (Scotland) Act 2014, the Carers (Scotland) Act 2016, Children & Young People (Scotland) Act 2014 and the Health and Care (Staffing) (Scotland) Act 2019. These have been aimed at refocusing the system to better meets the needs of people, to respect the rights of people using and working in care, and to encourage better joint working across health and social care services for people using both.
However, the resulting complexity of the legislative landscape has been a barrier to the provision of a joined-up and consistent approach to SDS across Scotland. This means that professional judgement is required in deciding under which legislation interventions should be made.
This Guidance cannot exhaustively describe all interactions between the 2013 Act and other relevant legislation. However, this section aims to provide an overview of the most important pieces of legislation that relate to – and, in some cases may affect (for example, the Adults With Incapacity (Scotland) Act 2000) – the implementation of the 2013 Act. This section also provides links to sources of further guidance.
Legislation relating to children and their families
Children (Scotland) Act 1995
Section 22 of the 1995 Act , which remains a major part of the legal framework for child welfare, support and protection in Scotland, places a duty on the local authority to safeguard and promote the welfare of children in need and, where consistent with that duty, to promote the upbringing of children within their families.
In summary, section 93(4) of the 1995 Act provides that a child is in 'need of care and attention' because:
- they are unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development unless the local authority provides services for the child under Part II of the 1995 Act;
- their health or development is likely significantly to be impaired, unless such services are so provided;
- they are disabled; or are affected adversely by the disability of any other person in their family.
The services to be provided under section 22 of the 1995 Act as read with section 23 of the 1995 Act include services for: children who are looked after, services for disabled children under the age of 18, children affected adversely by the disability of any other person in the family, and children whose health or development may be affected or may fall below a reasonable standard without services from the relevant authority.
Children and Young People (Scotland) Act 2014
Part 3 of the Children and Young People (Scotland) Act 2014 (Children's Services Planning) seeks to improve outcomes for all children, young people and families in Scotland. Its aim is to ensure that local planning and delivery of children's services and related services and support is integrated, focused on securing quality and value through preventative approaches, and dedicated to safeguarding, supporting and promoting child wellbeing.
Statutory guidance sets out expectations of close partnership working as a Children's Services Planning Partnership (CSPP) involving the workforce, other service providers, and children, young people and families in decision-making to promote a sense of shared ownership of the plan.
To this end, Part 3 of the 2014 Act sets out a legal framework for children's services planning, including its scope and aims. Section 8(1) of the 2014 Act requires every local authority and the relevant health board to jointly prepare a Children's Services Plan for the area of the local authority, in respect of each three-year period. A Children's Services Plan aims to ensure that any action to meet need is taken at the earliest appropriate time and that, where appropriate, this is taken to prevent needs arising.
The 2014 Act also requires annual reporting on the extent to which i) children's services and related services have been provided in that area in accordance with the Children's Services Plan and ii) that provision has improved outcomes for children, young people and families living in that area. Children's Services Plans can help evidence the extent of impact of local delivery of SDS on children, young people and families.
Section 96 of the 2014 Act provides the framework for assessing a child's or young person's wellbeing for the purposes of the 2014 Act. It lists the key indicators of wellbeing that should be considered when assessing wellbeing in the context of the Act.
See sections on further guidance relating to the 1995 Act and 2014 Act.
Further guidance concerning policy and legislation on children, young people and families
SDS and how it applies to children
The 2013 Act applies to children, young people (including those in transition to adulthood) as well as adults. It therefore affects the way that particular forms of support for children and their families are arranged. In particular, it provides the opportunity for children and their families to take greater control over the support provided to them. By giving families greater choice and control over their support, the self-directed approach is designed to ensure that what matters to the child is central to every decision made.
The 2013 Act should therefore be seen as strengthening engagement with children (the 2013 Act and the 2014 Act both refer to a child being a person up to age 18), young people (up to age 26) and their families, including those subject to compulsory measures of care.
A further aspect in relation to children is that parents (and in some situation others with parental responsibilities or parental rights such as certain carers or the local authority), are the persons able in law to make decisions on behalf of the child.
Although the child must be consulted and has the right to give their view and have this taken into account in accordance with their age and maturity), the child is not the ultimate decision-maker in relation to their own care. This is also the case where corporate parenting duties apply (for example when compulsory measures of care are in place via a Children's Hearing.
The duty of care remains the paramount factor in all work and it is a priority to fulfil statutory responsibilities in relation to children in need of care and protection.
Within this complex landscape, authorities should take steps to:
- Ensure that all relevant functions are familiar with local protocols and procedures relating to the provision of social work, care and support for children and their families. This should include recognition of the duties imposed on the authority by the 2013 Act, how those interface and apply in the children's context. The potential benefits to children that arise from the GIRFEC approach and the 2013 Act and the values, principles and practice associated with SDS should be embedded.
- Ensure that the relevant senior managers and practitioners are made aware of the duties and powers under social work legislation, in particular the duty under the 2013 Act to offer choices wherever this is not in conflict with other statutory duties in relation to a child or young person's care and support.
Applying the SDS Options
The 2013 Act imposes a further duty to provide choice and flexibility through a range of options to the child and their family. In many cases, the provision of alternatives such as choice of service, direct payments or an individual service fund can provide a creative and positive means by which to meet the child's needs.
Under the 2013 Act, if the child is 16 or older then the child will have the right to make decisions about their own support and to choose how they wish to arrange this support.
If the child is under 16 then the person having parental responsibilities or parental rights – called the appropriate person in the 2013 Act – should make decisions about the child's support, unless there are statutory measures in place which limit the extent that these duties can be carried out (for example compulsory measures of care, corporate parenting duties, or shared parental rights).
The authority should inform the appropriate person that they must, so far as is practicable and taking account of the maturity of the child, give the child an opportunity to indicate if they wish to express any views about the choices available and take into account the views of the child.
The child should be given appropriate help to express their views and wishes, including independent advocacy. If the child does not wish to express a view, the views of others close to the child should be considered, if appropriate.
However, there are some circumstances relating to provision for children in need where the offer of the four SDS options may not be appropriate, for example in cases where a child requires alternative care, or is subject to certain protective duties. In such cases, the authority's safeguarding and wellbeing function will affect the form of support which is necessary to safeguard the child's wellbeing, and therefore the extent to which additional choice and control is possible.
The authority should therefore approach its duties on choice in relation to support under Section 22 of the 1995 Acton a case-by-case basis. In each case, the authority must provide a range and level of services appropriate to the child's needs.
In relation to direct payments – in other words, the provision of a cash payment in place of support – Regulation 11 of the Self-directed Support (Direct Payments) (Scotland) Regulations provide the authority with further discretion to refuse to provide the direct payment option, though only where the child's safety will be put at risk by the provision of the direct payment.
See Section 3 (SDS Options) for further guidance on the application of the four options contained in the 2013 Act in relation to support to children and their families.
Getting it right for every child
All support and planning for children and young people should be underpinned by 'Getting it right for every child' (GIRFEC) which is the national approach in Scotland to promoting, supporting and safeguarding the wellbeing of children and young people in Scotland.
In general, social care and social work support provided under the 1995 Act refers to that provided to persons under 18. For some young people who have been looked after by a local authority, a social work or social worker-led service may continue up to the age of 26. The reasons why social work involvement may be necessary differ widely, but usually the parents, children and/or whole family will be experiencing a combination of practical, emotional, and relationship difficulties. Children and their families with a range of disabilities, emotional and relationship needs may be assessed as in need of a social work service.
With the United Nations Convention on the Rights of the Child as its foundation, GIRFEC is based on values and principles which support children's and parents' rights, and promotes actively involving children, young people and parents in assessments, planning and decision-making.
Under this approach, a personalised child's plan is developed when those working with the child or young person and family identify that a child or young person needs a range of extra support planned, delivered and co-ordinated.
The child's plan should reflect the child or young person's voice and explain what should be improved for the child or young person, the actions to be taken and why the plan has been created. The National Practice Model and National Child Protection Guidance in Scotland 2021 are tools for practitioners to help them to meet the 'Getting it right for every child' core values and principles in an appropriate, proportionate and timely way.
In 2016, the Scottish Government instructed an independent root and branch review of the care system for children and young people in Scotland, to help identify how to change the future of the care system for the better, and improve both the quality of life and outcomes of young people in care.
The review concluded with the publishing of The Promise in February 2020, which set out a clear statement of what needs to change to support the lives and wellbeing of our care experienced children, young people, adults and families, including the importance of early, preventative and holistic whole family support.
The Promise requires a cohesive and coordinated approach across services and partners to work together to provide person-centred, wraparound support for people when they need it and where they need it.
Transition from childhood to adulthood
Standard 10 of the SDS Framework of Standards sets out the core components of early planning for transitions so that people are given the help and support they need to plan for, and adjust to, new phases of their lives. Whilst recognising that transitions occur throughout a person's life this has particular importance for young people with additional support needs who are making the transition to young adult lives.
The transition period in which young people develop from adolescents to young adults involves them taking more control or responsibility and significant changes to their experiences, expectations, places and routines. Transitions also impact on the family or those who care for the young person.
The Getting it right for every child (GIRFEC) approach provides a framework and approach to work with children and their families to provide support through transitions. In line with GIRFEC principles and the principles of the 2013 Act, throughout the period of transition, the young person and their parent or guardian should receive the support they need in order to help them to make the relevant decisions and manage their support. This may include independent advice and support or advocacy services.
Transitions between children's services and adult services have been identified as points where services and support for individuals can be at risk of inadequate coordination between, leading to a negative impact on wellbeing.
Children's Services Planning guidance identifies the importance of ensuring a joined-up local approach is in place which considers transitions. The authority should ensure that effective co-ordination of transition planning and support at a local level is considered early and that there is consistency of practice between children's and adult services in relation to the social care assessment and support planning process.
The Association of Real Change (ARC) Scotland have set out seven principles which provide a framework for the continual improvement of support for young people with additional needs between the ages of 14 and 25 which are as follows:
1. Planning and decision making should be carried out in a person-centred way;
2. Support should be coordinated across all services;
3. Planning should start early and continue up to age 25;
4. All young people should get the support they need;
5. Young people, parents and carers must have access to the information they need;
6. Families and carers need support;
7. A continued focus on transitions across Scotland.
Information must be available to young people in a form they can understand and process, and which takes into account their needs and right to be involved in decisions affecting them. This could require, for example, recording information (video or audio); the use of sign languages such as British Sign Language or Makaton; the use of simpler language; information that is visually expressed, or through translation into other languages.
Regarding legal capacity: In general under Scottish law, a young person of, or over the age of, 16 years has legal capacity, meaning families no longer have the legal right to make decisions on their behalf. Where the young person lacks capacity to make specific decisions the authority should make the young person and their family aware of the Adults with Incapacity (Scotland) 2000 Act ('the AWI Act'). The authority should inform the young person and their family about the opportunity to apply for a Power of Attorney or Guardianship Order to enable someone to be appointed to act on the young person's behalf and help them to make and communicate decisions.
It is possible to apply for a Guardianship Order within three months of the young person's 16th birthday to enable the Guardianship to be in place as soon as possible after they become an adult under the 2000 Act. If the person lacks capacity then a Guardian will need to be in place in order to receive direct payments under the provisions of the 2013 Act.
The Carers (Scotland) Act 2016
The 2016 Act aims to ensure carers have choice and control and can access preventative support to protect their wellbeing and keep caring situations manageable. It puts in place a system of carers' rights designed to listen to carers, expand and transform carer support, prevent problems and help sustain caring relationships.
The 2016 Act gives all carers rights to a personalised adult carer support plan or young carer statement to identify what is important to them, for example, returning to work or undertaking studies or training. This plan must be offered regardless of the level of unpaid caring. It should also identify the carer's needs for support.
The authority has a duty to provide support to the carer where their needs meet local eligibility criteria and a power to provide support for carers' needs which do not meet those criteria (both under section 24 of the Act). The supported person does not need to have an assessment or a support plan in place before SDS support for a carer can be considered.
Where the authority exercises its duty to provide support to the carer to meet the carer's eligible needs or its power to meet the carer's other identified needs, the carer must be given the opportunity to choose one of the options for SDS (unless the authorities consider that the carer is ineligible to receive direct payments).
The 2016 Act also requires an information and advice service for carers in every local authority area, to help carers understand their rights and how to access support. In many areas, this is delivered by the local carer centre or equivalent third sector organisation.
For further guidance on carers' rights and local authority duties and powers with respect to carers (including young carers) and SDS, see the Statutory Guidance for the 2016 Act (particularly Part 2: Adult carer support plans and young carer statements and Part 3: Provision of support to carers) and also the Carers' Charter, which summarises carers' rights under the Act.
Mental Health (Care and Treatment) (Scotland) Act 2003
Under the Mental Health (Care and Treatment) (Scotland) Act 2003, the principles of the Act stress the importance of determining the wishes and feelings of the person, their carer and that those views must be taken into account by any person discharging a function under the 2003 Act (for example, carrying out assessments and making decisions about the person's care and wellbeing). A person-centred approach will include how best to communicate with the supported person.
The 2003 Act emphasises the importance of the person participating as fully as possible in any decisions being made and the importance of providing information to help that participation. Part of the planning with someone who has mental health support needs is to address how their SDS will be managed should their mental health needs deteriorate, for example through an extension to the assessment and support plan, which can clearly specify the wishes of the person. Independent advocacy support may be needed.
The principles of the 2003 Act also require that the needs and circumstances of the carers must also be taken into account, and balanced with safeguards which protect rights to privacy and autonomy.
See also the 2003 Act's Code of Practice.
Adults with Incapacity (Scotland) Act 2000
The Adults with Incapacity (Scotland) Act 2000 ('the AWI Act') protects adults (people aged 16 or over) who lack capacity to take some or all decisions for themselves because of a mental disorder or an inability to communicate. It allows a person – such as a relative, friend or partner – to make decisions on someone's behalf.
The AWI Act sets out arrangements for appointing legal proxies to make some or all decisions regarding welfare and /or finance and property matters on behalf of an incapacitated adult. Any intervention that takes place under the Act must give effect to the principles of the Act.
Where it has been assessed that a person does not have capacity or the ability to manage their own finances or the ability to make decisions about their own social care support, and they do not have a Power of Attorney or financial guardian, the flexibility allowed under SDS may not be appropriate in some circumstances (in accordance with the Regulation 8(1) of the 2014 Regulations. In this case, Local Authority Social Work should refer to the AWI Act and to sources of advocacy to support any decision making on behalf of the person.
The United Nations Conventions on the Rights of Persons with Disabilities (UNCRPD) requires a disabled person (including intellectual, cognitive or volitional disability) to be supported to exercise their legal capacity. The choice of an option under SDS is an exercise of legal capacity.
Thus, if necessary, a person with a mental incapacity must be supported to exercise their legal capacity in respect of this choice. The person themselves may not be able to arrive at a decision without support, but allowing a person of their choosing to support them with the process is allowed. However, the role of the supporter should be one of passive assistance not as active proxy decision-maker.
The UNCRPD requires the incapable person's human rights to be respected, as well as their will and expressed preference(s) on a matter, including the arranging of their support. Both will and preference can be expressed by behaviour and attitudes; they do not have to be verbal expressions. This complements the requirement to give effect to the principles of the Act, and the past and present wishes and feelings of the person.
Authorities should be aware that lack of capacity is not a reason to exclude people from SDS. Careful consideration is required to be given as to which of the options are appropriate. The professional judgement of social workers, and input from the supported person and (where relevant) their guardian or unpaid carers, should ensure all decisions made on behalf of the individual are shared and discussed with the individual's support network. See the principles of the AWI Act.
See also Power of Attorney in relation to Option 1 (Direct Payments)
There is also additional guidance on managing SDS for adults with incapacity.
Adult Support and Protection (Scotland) Act 2007
The Adult Support and Protection (Scotland) Act 2007 ('the 2007 Act') provides the legal framework for the protection of adults who are unable to safeguard their own interests. It is based on the fundamental principles that the intervention must provide benefit to the adult and is the least restrictive option to the adult's freedom. These principles should be at the heart of all risk planning and enablement.
The 2007 Act refers throughout to an 'adult'. In terms of Section 53 of the Act, 'adult' means a person aged 16 years or over. See guidance on child protection for those aged under 18 and to information elsewhere in this Guidance on transitions to adulthood. Section 3(1) defines an 'adult at risk' as someone who meets all of the following three criteria:
- that they are unable to safeguard their own well-being, property, rights or other interests;
- that they are at risk of harm; and
- that because they are affected by disability, mental disorder, illness or physical or mental infirmity they are more vulnerable to being harmed than adults who are not so affected.
It should be noted and strongly emphasised that the three criteria above make no reference to capacity. For the purposes of the Act, capacity should be considered on a contextual basis around a specific decision. Note also that if someone knows or believes that an adult may be at risk of harm they should make a referral without delay to the relevant authority for the adult at risk.
The Act sets out a defined system and protective measures for the support and protection of adults at risk of harm.
There will be situations where consideration of the Adult Support and Protection (ASP) principles produces potential conflicts, such as occasions when the adult at risk expresses a preference not to engage with any form of intervention, but the professionals involved believe that adult protection interventions would provide a benefit to them.
In such circumstances, the expectation is that decision-making should take place on a multi-agency basis to enable full and complete discussion of potential protective actions and the application of the principles. The principles include participation of the adult; finding out their views and those of the adult's nearest relative, any primary carer, guardian or attorney of the adult, and any other person who has an interest in the adult's well-being.
The authority should ensure that there is an effective link established between their ASP duties, child protection duties and their wider duties relating to service user wellbeing, social care assessment and social welfare.
Greater care is required in assessment of need and the appropriateness of provision via the four options where there are elements of risk involved. As part of an assessment – which may require significant time to undertake – it is crucial to understand the person's decision-making processes.
Consideration should be given to any factors that may impact on an adult's ability to make free and informed decisions to safeguard themselves. Account must be taken of any possibility of 'undue pressure', or increasing of risk if the views of others are sought. An adult at risk may be considered to have been 'unduly pressurised' if it appears that harm which intervention is intended to prevent is being, or is likely to be, inflicted by a person in whom the adult at risk has confidence and trust. It is important that the adult has the option to maintain existing family and social contacts, should they wish to do so.
The SDS Framework of Standards (Standard 6: Risk enablement) sets out a collaborative and enabling approach to sharing the responsibility of finding an appropriate balance between innovation, choice and risks.
See also the section on legislation relating to children for details of duties relating to child wellbeing, support and protection in Scotland.
Protection of those in transition from childhood to adulthood
Authorities should pay attention to the needs and risks experienced by young people in transition to adulthood, who are more vulnerable to harm than others and who are more likely to experience change to the support they access.
As other legislation and provisions exist which include persons up to 18 years (and in some circumstances up to age 26 years), support under these other provisions may be more appropriate for some young persons. The responsibilities of the authority and other agencies for persons aged 16 to 18 years will extend beyond adult protection legislation, and professional judgement will be needed to decide under which legislation interventions should be made.
See the Adult Support and Protection Code of Practice for more information and guidance on this, as well as the more detailed Transitions from childhood to adulthood section.
Public Contracts (Scotland) Regulations 2015
The Public Contracts (Scotland) Regulations 2015 apply a 'Light Touch Regime' (LTR) to social and other specific service contracts at certain threshold value, currently £663,540 (as of July 2022). This regime provides greater flexibilities than for the tendering of other service types. It specifically allows quality, continuity, accessibility, affordability, and the needs, involvement and empowerment of those receiving services to be taken into account when awarding contracts.
Procurement Reform (Scotland) Act 2014
Below the LTR threshold value, no procurement procedural rules apply and section 12 of the 2014 Act specifically allows a contract for health and social care services to be awarded without the need to seek offers through advertising the contract opportunity.
Statutory Guidance for the Procurement Reform (Scotland) Act 2014 states in Chapter 7 that buying many health or social care services 'requires special consideration by a contracting authority…the quality or availability of these services can have a significant impact on the quality of life, health and wellbeing of people accessing the service and their carers'.
The authority should seek to use the flexibility within the procurement regulatory regime to meet the legal duties of the 2013 SDS Act (for example, some procurement rules do not apply to Option 1 as the service user is the purchaser).
See the section on procurement and on SDS Options. See also Social Work Scotland's SDS and procurement best practice guide.
Public Bodies (Joint Working) (Scotland) Act 2014.
The 2014 Act provides the legislative framework for the integration of health and social care services in Scotland. Statutory guidance and advice around health and social care integration produced to support the Public Bodies.
The Statutory Guidance on the 2014 Act covers a range of topics, including guidance on strategic commissioning planning, Health and Social Care Integration Partnership reporting guidance and the roles and responsibilities of Integration Joint Boards. As SDS is a key pathway for social care outcomes to be achieved, the 2014 Act provides the legal basis for local authorities' implementation of SDS.
Health, (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016
Since 2018, Health Boards have a duty to 'meet all reasonable requirements' to provide or secure communication equipment and support to people who have lost their voice or have difficulty speaking. This duty applies to all children and adults who have lost their voice or have difficulty speaking and is principally delivered through Speech and Language Therapists.
Guidance relating to this duty contains information on how to get the necessary equipment and support, and is intended to support full inclusion and participation in society, consistent with the statutory principles set out within the SDS Act 2013.
Equality Act 2010
The Equality Act 2010 provides people with legal redress if they experience direct or indirect discrimination in the workplace and in wider society. The Equality and Human Rights Commission has produced guidance on the requirements of the 2010 Act. The Equality Act applies to employment, the provision of goods, facilities, and services and contains important provisions concerning authority decision-making and how these should aim to 'reduce the inequalities of outcome which result from socio-economic disadvantage'.
An Equality Impact Assessment of the Self Directed Support Bill was carried out in 2012 before SDS legislation came into force in 2014. This considered evidence of the needs and experiences of people concerning the following protected characteristics, age, disability, gender (including pregnancy and maternity), race, religion and belief, and sexual orientation. It did not cover marriage and civil partnership, gender reassignment, or sex.
Since then, evidence suggests that there are groups of people with characteristics not specifically mentioned by the 2010 Act (for example people who are homeless and those who live in isolated locations) who do not get equal access to SDS, or who have not received sufficient information, choice or support. Similarly, some people within protected characteristics groups do not have equal access to SDS as other parts of the population (for example, Gypsy/Travellers).
This evidence is discussed in several reports including My Support My Choice: People's Experiences of Self-directed Support and Social Care in Scotland, (SDSS/Alliance, 2020), Gypsy Travellers: Human rights and social work's role. (IRISS, 2017), and the Care Inspectorate's Thematic Review of self-directed support (2019).
It is important that social workers and duty bearers consider the impact of decisions on people across all protected characteristics (including those not covered by the 2012 Equality Impact Assessment).
There are a number of resources on how authorities can ensure that people accessing SDS have access to assessments and support which are adequate and tailored to their requirements, way of life (including geographical location) and identities.
For more information, see the SDS Framework of Standards (Standard 7: Flexible and outcome-focused commissioning and Standard 11: Consistency of Practice), the impact assessments completed as part of the development of the National Care Service, and the SDS toolkit produced by Minority Ethnic Carers of People Project (MECOPP).
Islands (Scotland) Act 2018
The Islands (Scotland) Act was passed by the Scottish Parliament in 2018. It outlines measures designed to meaningfully improve outcomes for island communities, including the introduction of Island Communities Impact Assessments (ICIAs). These provisions in Sections 7 to 14 of the Act came into force on 23rd December 2020.
For more information on health and social care in the islands, see the National Plan for Scotland's Islands pages published in 2019, which includes details on actions to be taken to improve fair, accessible health and social care for those on islands.
Prisons and social care
According to Understanding the Social Care Support Needs of Scotland's Prison Population (2021) 'self-directed support and the integration of health and social care available to people in the community have so far not been extended to people in prison. Criminal justice-related social services provided under section 27 of the 1968 Act are not 'community care services' within the meaning of section 5 of the 2013 Act to which the duty to offer the four options apply. This means that authorities have the power to offer these to prisoners in relation to the wider community care needs that they may have, but are not obliged to do so.
The Scottish Government's intends to consult on the transfer of justice services into the National Care Service.
The Protecting Vulnerable Groups Scheme
The Protecting Vulnerable Groups (PVG) scheme is managed and delivered by Disclosure Scotland. It helps ensure people whose behaviour makes them unsuitable to work with children and/or protected adults cannot do 'regulated work' with these vulnerable groups.
With respect to the Scheme, the authority should, either directly or through a support organisation:
- Ensure the supported person, where they are directly employing a personal assistant (PA) under Option 1, is made aware of the PVG scheme so that they can decide whether or not to request a PVG disclosure from a prospective personal assistant (PA). See section below on exceptions to using the PVG scheme.
- Make the supported person (or their guardian) aware that guidance is available on the Disclosure Scotland website on: 1) how a supported person can use the PVG scheme as a 'personal employer' and 2) how a prospective PA can apply for PVG. Supported persons or authorities can also contact Disclosure Scotland via firstname.lastname@example.org or phone: 0300 020 0040 Monday to Thursday 9am to 4pm; Friday 9am to 3:30pm).
- Develop effective arrangements to ensure that all prospective personal employers are aware of and are encouraged to make use of the PVG scheme.
- Take steps to support their staff to discharge those duties and powers alongside their duty to provide choice, control and flexibility to adult supported people and children and their families.
- Identify and implement an effective process that informs local protocols and complies with PVG and other relevant statutes.
If a supported person has concerns regarding the behaviour of a PA or feels they are being placed at risk of harm, then they should raise this urgently with the relevant authority where the supported person lives. The authority has a duty to make inquiries into the claims and may inform the police, other law enforcement agencies, and/or colleagues in health services.. The authority should make the supported person aware of this at the outset.
Exceptions to the PVG Scheme
The exceptions to the supported person, or someone acting on their behalf, being able to use the PVG Scheme are where the person providing care is:
- n a family member who lives with the supported person, or who lives with the supported person as if they were a member of the same family;
- n someone with a personal relationship with the supported person and where there is no commercial consideration involved;
In those exceptional cases, an application for PVG cannot be made. This is in accordance with the decision of the Scottish Parliament in enacting both the Protection of Vulnerable Groups (Scotland) Act 2007 and Disclosure (Scotland) Act 2020, where Parliament agreed on both occasions that such relationships should not be subject to PVG Scheme membership.
The only circumstance where a family member acting as a PA can use the PVG Scheme is where they don't live in the same household and are being paid for the PA role.
Additional guidance on using the PVG scheme (including Direct Payments)
The PVG check should be used as an aid to sensible and safe recruitment practice but it is not the only aspect of this.
The authority should ensure that the supported person, along with anyone who may provide additional support to the supported person, is made aware that the PVG Scheme allows personal employers to satisfy themselves that an individual to whom they are offering regulated work is not either already barred from doing that type of regulated work or under consideration for barring. A PA will be provided with a Scheme Membership Statement that confirms this.
However, authorities should also ensure that the supported person is made aware that scheme membership on its own does not mean that the individual is suitable to provide support. That decision must always be taken by the employer, informed by the content of their Scheme Membership Statement as well as other good recruitment and employment practice such as taking up references, developing job adverts which specify any specific support requirements, interviewing and conducting probationary periods.
By law, the authority cannot seek access to PVG scheme membership records for PAs, where it is not the employer. It should ensure that the personal employer understands the importance of scheme membership, the rules on seeking and sharing information and the risks of employing an unsuitable person as a personal assistant.
Where a local authority is making the recruitment decision (for example because they are providing care directly from their own services or through a contractor), the authority can apply for a PVG and have sight of the results.
Direct payments should not be refused on the grounds that the authority does not have access to scheme membership statements. The support plan agreed between the supported person and the authority as part of the assessment process should set out how the key outcomes are to be met.
Where the authority does not consider that a direct payment, or the way in which it will be used to purchase support, will deliver the agreed outcomes the supported person should be advised of the reasons in writing and – if necessary – in such other form as is appropriate to the needs of the person. Under the Direct Payment Regulations 2014, the authority can refuse to allow a direct payment where the person's safety is at risk. However the authority must have good reason to use this power and this should be specific to the person's individual circumstances.
The Disclosure (Scotland) Act 2020
The Disclosure (Scotland) Act 2020 ('the 2020 Act) will be fully implemented by 2024, at which time it will become mandatory for PAs to join the PVG Scheme, other than where the applicant is a family member who lives with the supported person (or lives with them as if they were a family member.
That means it will be an offence for individuals who are not part of the PVG scheme and are not family members living with the supported person (or living with them as if members of the same family) to work as PAs to provide care under SDS arrangements without a PVG check being in place.
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