Section 2: Summary: The SDS Act 2013 and its Impact on Local Authorities' Duties and Powers
This section provides a summary of the main assessment and service duties with respect to children, adults and carers. It explains how those duties are affected by the introduction of the Social Care (Self-directed Support) (Scotland) Act 2013.
"What remains in place?" - The duties and powers that will remain unaffected by the 2013 Act
2.1 The following duties and powers are not affected by the introduction of the 2013 Act:
2.2 Duty to safeguard and promote the welfare 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 welfare.
- The authority retains its duty to promote the upbringing of such children by providing a range and level of services appropriate to the child's needs (Section 22 of the Children (Scotland) Act 1995).
2.3 Duties in relation to children affected by disability (Section 23 of the 1995 Act)
- The authority retains its duty to ensure that services provided under Section 22 of the 1995 Act (services to children in need) are designed to minimise the effect of any disability on disabled children and to minimise the effect on any child who is affected by the disability of any other person in his family. (Section 23 of the 1995 Act)
- The authority retains its 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 of the 1995 Act)
- The authority retains its 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 and the views of the carer. (Section 23 of the 1995 Act)
2.4 Carers assessments (carers of disabled children)
- The authority retains its duty to conduct carers assessments for carers of disabled children where the carer requests such an assessment and where that carer provides a substantial amount of care on a regular basis.
2.5 Duty to prepare plans for community care services (adults)
- The authority retains its duty to prepare and publish a plan for the provision of community care services in their area (Section 5A of the 1968 Act)
2.6 Duty to appoint chief social worker
- The authority retains its duty to appoint a chief social work officer (Section 3 of the 1968 Act). Registered social workers remain accountable for the exercise of specific statutory functions, as set out in The Role of the Registered Social Worker in Statutory Interventions: Guidance for Local Authorities (Scottish Government: December 2009).
2.7 Power to make arrangements with voluntary and other organisations
- The authority retains its power 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).
2.8 Duty to promote social welfare (adults):
- The authority retains its 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".
2.9 Duty to assess needs (adults):
- The authority retains its duty to conduct an assessment of the adult's needs (Section 12A of the 1968 Act).
2.10 Power to provide emergency assistance in cash (adults)
- The authority retains its power 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).
2.11 Carers assessments (carers of adults):
- The authority retains its duty to comply with all requests for carer's assessments where the carer provides or intends to provide a substantial amount of care on a regular basis (Section 12AA of the 1968 Act).
- The authority retains its duty to have regard to the results of the carer's assessment in the assessment of the person cared for, and in making decisions relating to the support to the person cared for.
- The authority retains its duty to inform carers who meet the substantial/regular criteria of their right to request a carer's assessment.
Duties/Powers repealed by the 2013 Act
2.12 Duty to offer and provide direct payments (Sections 12B and 12C of the 1968 Act)
- The 2013 Act repeals Section 12B of the 1968 Act (the duty to offer and provide direct payments). In its place the 2013 Act provides a new, enhanced duty to offer the direct payment option and to "give effect to" the person's choice of a direct payment. The direct payment is now provided as one of four options for the provision of support to the supported person. The practical effect of this change is to ensure that two service delivery options (the direct payment and arranged services) are replaced by four options, coming under the broad description of options for self-directed support (the direct payment, "directing the available support", arranged services and a mix of the various options for different aspects of the person's support).
"What's new": the duties, powers and general principles provided by the 2013 Act
2.13 The following provides a summary of the main changes and additions provided by the 2013 Act.
2.14 Duty to have regard to the general principles of collaboration, informed choice and involvement as part of the assessment and the provision of support (this duty applies with respect to adults, children/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 24 of the 1995 Act and all of the 2013 Act.
What does this mean?
- The authority should collaborate with the supported person when they undertake the assessment and provide support.
- The authority should take steps to ensure that the person makes informed choices as part of their assessment and in selecting their support options.
- The authority should take steps to involve the supported person in their assessment and in selecting their support options.
2.15 Duty to take reasonable steps to facilitate the person's dignity and participation in the life of the community (this duty applies with respect to adults, children/families, adult carers and young carers)
- The 2013 Act provides a further general principle related to independent living. This principle should guide and inform the assessment 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 to assessment (i.e. its assessment practice), the manner in which it provides services and the manner in which it provides options to the supported person.
2.16 Power to provide support to carers (of adults) following a carer's assessment
- The 2013 Act provides the authority with a new power to provide support to the carer - support which helps to address the carer's needs to continue in their caring role.
2.17 Duty to offer four options to the supported person (this applies with respect to adults, children/families, adult carers and young carers)
- The 2013 Act imposes a new duty on the authority to provide 4 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 relating to both adults and children.
- The four options are:
- Option 1, a direct payment: the definition of the direct payment remains unchanged from its previous incarnation under Section 12B of the 1968 Act
- Option 2, "Directing the available support": this option should provide greater transparency and control for the supported person without the requirement to take this support as a direct payment. There is a degree of discretion for the local authority in how it can develop and deliver this option. However the authority should take steps to ensure that Option 2 differs in nature from both Option 1 (the direct payment) and Option 3 (arranged services).
- Option 3, "Services arranged for the person by the authority" - this is where the authority arranges any services on the person's behalf.
- Option 4, A mix of the first 3 options for different aspects of the person's support.
2.18 Duty to explain the nature and effect of the 4 options and to "signpost" to other sources of information and additional support (this duty applies with respect to adults, children/families, adult carers and young carers)
- The authority is placed under a new duty to explain the nature and effect of the 4 options provided under the Act. This means that the authority should explain what each of the 4 options will mean for the supported person. This applies both in terms of the general impact of the options (the varying degrees of flexibility and control associated with each option, general guidance and advice on what it means to have your support arranged on your behalf or to direct your support) and the specific impact for the supported person, i.e. what the different options might mean for the supported person given their own circumstances, assets and circles of support.
- The authority is placed under a duty to provide information about other persons or organisations out-with the authority who can provide assistance or information about the options and how to manage the options.
- 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, i.e. services that can advocate on the person's behalf in relation to the assessment and the selection of the various options provided under the 2013 Act.
Email: Heather Palmer