Section 14: Additional Guidance
This section covers the relationship between the 2013 Act and wider legal duties and strategic responsibilities for local authorities. It covers:
- adult support and protection;
- re-ablement and intermediate care;
- residential care;
- personal and nursing care;
- housing support; and
- equipment and adaptations (including housing adaptations)
The relationship between protection duties and social care provision / self-directed support duties
14.1 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.
14.2 The authority should ensure that there is an effective link established between their adult support and protection duties, child protection duties and their wider wellbeing, social care assessment and social welfare duties under the 1968, 1995 and 2013 Acts.
14.3 The authority should ensure that its adult and child protection duties are incorporated and highlighted in any social care and self-directed support training, and vice versa. It should develop and provide joint training on protection duties and their relationship to social care provision to adult/child protection officers, adult social work and children and families teams. It should involve adults and children/families in the design and delivery of any training.
14.4 The authority should ensure that the relevant professional(s) involved in assessment and support planning for both adults and children/families take a thorough and person-centred approach to risk assessment, enablement and management, building and maximising the adult's control over their own risks.
14.5 The authority should ensure that the relevant professional(s) fully involve the supported person and their carers/advocates at every stage in the person's assessment and support planning pathway. The authority should also ensure that the child or adult's support provider is involved in the person's assessment and support planning pathway.
14.6 The authority should consider any additional steps that it should take with respect to those at risk from harm when they are in receipt of care and support services. This should apply to the individual support planning arrangements and the authority's general delivery plans for social care provision.
14.7 The authority should ensure that all relevant organisations involved in adult support and protection assist social work and health professionals, family carers and providers to monitor and improve the way that they identify and manage risk on an individual basis, support people to take risks in a planned and safe way and provide good quality information about what to do 'when things go wrong'.
14.8 The authority should ensure that there are effective and timely communication links between local authority staff dealing with social care provision and Adult Support Protection (ASP) lead officers. For instance:
- are there robust and effective arrangements in place to intervene in the interests of adults who are subject to harm?
- are there robust and effective arrangements in place to empower individuals to take control of their support and their lives?
14.9 The authority should ensure that there are effective arrangements for the review and monitoring of the supported person's care and support arrangements, and that these arrangements involve the relevant ASP lead officer (for adults) or Lead Professional (for children) as appropriate;
14.10 The authority should ensure that there are comprehensive arrangements to monitor and review the provision of social care to adults and children under all of the options under the 2013 Act. Furthermore, it should ensure that any monitoring activities take account of child/adult protection responsibilities and involve the relevant adult and child protection functions and support staff.
Further guidance: child protection
14.11 Child protection means protecting a child from child abuse or neglect. Abuse or neglect need not have taken place. It is sufficient for a risk assessment to have identified a likelihood or risk of significant harm from abuse or neglect. Equally, in instances where a child may have been abused or neglected but the risk of future abuse has not been identified, the child and their family may require support and recovery services but not a Child Protection Plan.
14.12 There are key principles underpinning an effective approach to child protection. These principles are consistent with the values and principles that underpin good social care provision and the options provided under the 2013 Act. In particular the UN Convention principles state that:
- each child has a right to be treated as an individual;
- every child who can form a view on matters affecting them has the right to express those views if they so wish, and those views should be given due weight in accordance with the child's age and maturity;
- parents should normally be responsible for the upbringing of their children and should share that responsibility;
- each child has the right to protection from all forms of abuse, neglect or exploitation;
- insofar as is consistent with safeguarding and promoting the child's welfare, public authorities should promote the upbringing of children by their families; and
- any intervention by a public authority in the life of a child must be properly justified and should be supported by services from all relevant agencies working in collaboration.
14.13 Risk is a crucial consideration in terms of authority's child protection duties (risk being the likelihood or probability of a particular outcome given the presence of factors in a child or young person's life). As stated in Scottish Government National Guidance for Child Protection in Scotland 2010 ("the 2010 guidance"), risk is part and parcel of everyday life. A toddler learning to walk is likely to be at risk from some stumbles and scrapes but this does not mean the child should not be encouraged to walk.
14.14 Risks may be deemed acceptable. They may also be reduced by parents/carers through the early intervention of universal services or through the provision of alternative options such as those provided under the 2013 Act. The policy and practice underpinned by the 2013 Act is predicated on the principles of informed choice and risk enablement. The provision of support under each and all of the options available via the 2013 Act will carry its own unique risks. Direct payments and notional budgets directed by the supported person, based on informed choice and effective risk enablement can provide significant opportunities to children and families. At the same time, the 2010 guidance states that "where risks cause, or are likely to cause, significant harm to a child would a response under child protection be required". As such, if there is clear evidence that the provision of a direct payment, individual service fund (or indeed the provision of arranged support on the child's behalf) would be likely to cause significant harm to a child the authority's duties and powers under the relevant child protection legislation will apply.
Further guidance: adult support and protection
14.15 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. The 2007 Act defines "adults at risk" as adults who:
- are unable to safeguard their own well-being, property, rights or other interests;
- are at risk of harm; and because they are affected by disability, mental disorder, illness or physical or mental infirmity, are more vulnerable to being harmed than adults who are not so affected.
14.16 The duties that are relevant if/when care and support services are also being provided:
- duty to make inquiries to establish whether action is required, where it is known or believed that an adult is at risk of harm and that intervention may be necessary to protect the adult (Section 4);
- duty to co-operate with other councils and other listed (or prescribed) bodies and office holders (Section 5);
- duty to have regard to the importance of the provision of appropriate services (including, in particular, independent advocacy services), where the council considers that it needs to intervene in order to protect an adult at risk of harm (Section 6);
- duty to set up an Adult Protection Committee to carry out various functions in relation to adult protection in its area, and to review procedures under the Act (Section 42). The Adult Protection Committee may cover more than one council area.
14.17 The 2007 Act enables the authority to visit any place necessary to assist inquiries under Section 4 of that Act. The authority can also apply to the sheriff for the grant of a protection order. This may be an assessment order, a removal order, a banning order or temporary banning order.
14.18 The 2007 Act is based on the principle that any intervention must provide benefit to the adult and be the least restrictive option to the adult's freedom. It emphasises that support should not be restrictive and the adult has a choice. These principles should be at the heart of all risk planning and enablement associated with social care provision under either the 1995 Act or the 1968 Act, and are consistent with the values and principles that underpin the 2013 Act.
14.19 There may be occasions when the authority's duties under the 2007 Act will become relevant in relation to actions or events which arise under a direct payment, individual service fund or arranged service arrangement. In all cases, it is a clear duty upon a local authority and its partners to ensure that any individual is protected and safeguarded from harm.
14.20 In considering the choices available under the 2013 Act the authority will need to take into account the relevant duties in the 2007 Act. If the granting of a direct payment (or indeed the provision of arranged support on the person's behalf) would lead to an increased risk of harm and such a risk cannot be alleviated by the means of a mutually agreed risk enablement process, then the authority should consider its responsibilities and powers with respect to the safeguarding and protection of the supported person.
Further guidance and hyperlinks:
For further guidance on local authorities' corporate responsibilities and professionals' individual responsibilities under the 2007 Act see the Scottish Government's Adult Support and Protection (Scotland) Act 2007: Code of Practice: http://www.scotland.gov.uk/Publications/2009/01/30112831/0
Scottish Government guidance on authorities child protection duties and powers is available at: http://www.scotland.gov.uk/Publications/2010/12/09134441/0
Social Care Institute for Excellence (2010), Enabling risk, ensuring safety: Self-directed support and personal budgets http://lx.iriss.org.uk/sites/default/files/resources/report36.pdf
The Knowledge Network - Implementing Self-directed Support - Personalisation - Risk Enablement http://www.knowledge.scot.nhs.uk/home/portals-and-topics/self-directed-support/implementing-self-directed-support/risk-enablement.aspx
Simon Duffy & John Gillespie (2010) Personalisation and Safeguarding Discussion Paper http://www.in-control.org.uk/media/52833/personalisation%20safeguarding%20discussion%20paper%20version%201.0.pdf
14.21 Re-ablement services involve a short term package of support provided over a 6 week period. It may be provided following a fall or following discharge from hospital though it may be provided in other circumstances. The unique characteristic of re-ablement support is that it is short-term intensive support designed to help the supported person regain independence. There will tend to be two possible outcomes when the re-ablement support comes to an end:
a) the supported person may be eligible for long-term support, or
b) the re-ablement service will address the initial need and, as such, there will be no further "stable" or long-term support.
14.22 It would be sensible for the authority to view re-ablement as a part of the assessment process - an early intervention which may or may not lead to more stable forms of on-going support. However, where it is decided that the supported person will be provided with that stable on-going support, the authority must offer the person the various choices set out in the 2013 Act.
14.23 Intermediate care is an umbrella term describing a collection of services working to common, shared objectives and principles. It provides a set of 'bridges' at key points of transition in a person's life, in particular from hospital to home (and vice versa) and from illness or injury to recovery and independence. The purpose of intermediate care is to provide time-limited interventions at points of crisis in a person's life where this will restore or avoid a loss of independence and confidence, or reduce the risk of hospital admission (or a longer stay in hospital).
Further guidance and hyperlinks:
Further guidance on Intermediate Care can be found in Maximising Recovery, Promoting Independent: An Intermediate Care Framework for Scotland
14.24 The person's route into intermediate care will be a multi-disciplinary assessment of one form or another. In light of the short-term intensive nature of the intervention intermediate care can be viewed as an initial step or staging post which can help to determine a supported person's need and inform any subsequent long-term support plan. Where it is decided that the supported person will be provided with stable on-going support the authority must offer the supported person the choices set out in the 2013 Act.
14.25 Residential Care is a social care service. Assessments which result in a decision to receive care and support in a group setting are social care assessments. As such the authority should undertake any assessment which may result in residential care in line with this guidance. For example, the general principles of assessment set out in Section 1 of the 2013 Act apply in exactly the same way as any other context. The authority must collaborate with the supported person, ensure that the person can make informed choices and involve the supported person in their assessment. The provision of alternative options can provide the supported person with an opportunity to choose an option other than residential care support.
14.26 Where the supported person is assessed as requiring residential care all of the 2013 Act's Options, with the exception of Option 1 (direct payment), should be offered to the supported person.
Further guidance and hyperlinks:
Scottish Government guidance on Choice of Accommodation; Discharge from Hospital (2004) http://www.sehd.scot.nhs.uk/publications/CC2003_08.pdf
Charging for support to the supported person
14.27 Under Section 87 of the 1968 Act the authority can require the supported person to pay a charge towards the cost of any services which meet the supported person's assessed needs. Historically charges have tended to be based on service types. Where a supported person's package is predicated on an identified budget it can be difficult to base any charge on the basis of a service. This requires the consideration of arrangements based on the proportion of the overall budget as opposed to one form of service or another. Local charging policies are a matter for the local authority and should be considered in light of the relevant COSLA guidance however where personal and nursing care support is provided to a person aged 65 and over the authority should refer to Executive circular CCD 4/2002: Free personal and Nursing Care 19.
Charging for support to carers
14.28 In 2013 the Scottish Government consulted on draft regulations and guidance in relation to charging for carers support provided under Section 3 of the 2013 Act. The Scottish Government confirmed that it intended to lay Regulations requiring the authority to waive charges where services are provided to adult carers under section 3(4) of the 2013 Act and where services are provided to children in need (ie young carers) under section 22 of the 1995 Act. For detailed guidance on the waiving of charges for carers support please see the relevant Regulations and separate statutory guidance.
Personal and nursing care
14.29 Personal and nursing care is a form of social care and support. As such it falls within the scope of the assessment and support planning processes described in this guidance. If the supported person has personal care needs then the person should be provided with the full range of choices under the 2013 Act. See paragraph 14.27 for further guidance on charging.
Housing support services
14.30 Housing support is support other than care or housing management services to enable a person to establish or maintain occupancy of a dwelling. Housing support services are provided to help people live as independently as possible in their own homes. If the authority concludes that a particular form of housing service falls within the definition of community care services then the 2013 Act applies and the supported person should be provided with the full range of choices under the 2013 Act.
Equipment and adaptations (including housing adaptations)
14.31 The authority should have regard to the following key principles which represent good practice in housing adaptations:
- the supported person and their carer(s) should be placed at the centre of service provision and be in control;
- access to assessment and the adaptation itself should take account of need and be fair, consistent, reliable and reasonable, with a focus on prevention;
- assessment and access to financial and other non-financial supports for the adaptation should be equitable and fair; and
- the supported person should be able to understand the systems and rules, which should be uncomplicated and maximise the ability of the supported person to make informed choices.
14.32 Options 1 and 2 in the 2013 Act - the direct payment or the opportunity to direct the available support - may provide an opportunity to explore new or alternative ways to meet the person's outcomes. However any additional costs or responsibilities that may be incurred by arranging the adaptation via a direct payment or individual service fund should be fully explained to the supported person. Consideration should to be given as to how any on-going costs will be met, and who will responsible for these costs - for example providing additional top ups to the direct payment to cover these fees.
Additional guidance on direct payments and equipment/adaptations
14.33 A key principle behind direct payments is that they can be used to purchase anything provided that it meets the assessed needs of the supported person and is not illegal. This includes equipment and adaptations. A direct payment can be a useful way to provide additional flexibility and control to the supported person. However as withany other form of support the equipment/ adaptation must meet the assessed needs of the person. In addition it is a matter for the local authority to define the relevant amount of funding that is necessary to meet the assessed needs of the person.
14.34 A direct payment arrangement means that control and responsibility passes to the supported person. This means that ownership and responsibility for arranging the maintenance of the equipment or adaptation can passto the supported person. In some instances it may make sense for responsibility for maintenance to rest with the authority. The key priority should be to make use of the user/supported person agreement to discuss and clarify questions of maintenance, ownership and issues such as the donation of any equipment to the authority, NHS, provider or fellow citizens after it is no longer required.
14.35 While there is no specific restriction on the use of direct payments to fund larger scale adaptations it is a matter for the authority to determine if the relevant support relates to community care support. A direct payment is an alternative means by which to meet assessed social care needs. It is not a substitute for housing improvement grants.When considering the funding of large scale or particularlycomplex alterations the authority and the supported person should consider how additional responsibilities such as insurance,health and safety requirements and specialist support and expertise,will be fulfilled.
Email: Heather Palmer