Section 3: The 2013 Act and Its Impact on Services to Children and Families
This section clarifies the application of duties on self-directed support in relation to services provided to children and families under Section 22 of the Children (Scotland) Act 2013. It relates to children and families only.
3.1 This section of the guidance clarifies the impact that the 2013 Act will have on "Section 22 support", i.e. the support provided to children and families under Section 22 of the Children (Scotland) Act 1995. The subsequent sections of this guidance relate to all ages and should be considered as including the relevant guidance relating to children and families. Where the guidance provides additional advice relating to children and families this is highlighted within the guidance document.
The policy and practice context for children and families
3.2 Local authorities provide social care and support to children and families as part of a wider policy and practice framework for children and young people. This framework - Getting it Right for Every Child - emphasises the importance of:
- promoting the upbringing of children and young people within their families so far as this is consistent with safeguarding and promoting their welfare;
- giving children and young people the opportunity to become more independent in the future;
- working in partnership with families;
- recognising that children and young people are individuals with their own wishes and feelings;
- listening to children and young people and taking into account their views;
- actively involving children, young people and parents in assessments and decision-making; and
- having regard to issues of race, language, religion and culture.
The 2013 Act and its relationship to Getting it Right for Every Child
3.3 The 2013 Act affects the way that particular forms of support for children and families are arranged and provided to children and families. In particular, it provides the opportunity for children and families to take greater control over the support provided to them. The Children and Young People (Scotland) Bill will bring about further important changes to the way that children are supported. This will include children who are supported under the legal duties in the 1995 and 2013 Acts.
3.4 Under the framework for children and families' support every child, from birth to age 18, should have a Named Person. The Named Person will be a professional from health or education (depending on the age of the child) and will act as the first point of contact for children and families. Once a concern for the child's wellbeing has been brought to the attention of the Named Person, it is the Named Person's responsibility to take action to provide help or arrange for the right help to be provided to promote the child's development and wellbeing. When two or more agencies need to work together to provide help to a child or young person and their family there should be a Lead Professional to co-ordinate that help.
3.5 The authority should take steps to integrate its approach to self-directed support with its implementation of GIRFEC and associated legislation. In particular, the authority should consider the impact that the 2013 Act duties will have on its approach to the Named Person and Single Child's Plan. For example:
- The authority should ensure that its education function, responsible under the GIRFEC approach for working alongside social work, is familiar with local protocols and procedures relating to the provision of social care and support for children and families. This should include recognition of the duties imposed on the authority by the 2013 Act, the potential benefits to children that may arise from the options provided under the 2013 Act and the values, principles and practice associated with self-directed support.
- The authority should ensure that the relevant senior managers and professionals are made aware of the duties and powers under social care legislation, in particular the 2013 Act's duties to offer choices in relation to the child's care and support.
- The authority's policies and procedures in relation to the development of single plans for children should take account of its duties under the 2013 Act.
3.6 Further statutory guidance on the Named Person and other legal provisions within the Children and Young People (Scotland) Bill will be published by the Scottish Government.
3.7 Section 22 of the 1995 Act places a duty on the responsible 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. Under Section 22 the authority will provide services in relation to a wide set of needs, many of which will not be related to disability alone. The definition of a child in need is a broad definition. It includes children under the age of 18 who have a disability, children affected adversely by the disability of any other person in the family and children whose health or development may be impaired or may fall below a reasonable standard without services from the local authority. In summary, a child is in need if he or she is in need of care and attention because:
- he or she is 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 him under Part II of the 1995 Act;
- his or her health or development is likely significantly to be impaired, unless such services are so provided;
- he or she is disabled; or
- he or she is affected adversely by the disability of any other person in his or her family.
3.8 The 2013 Act imposes a further duty to provide choice and flexibility with respect to the relevant support to children or families. It requires the authority to provide a range of options to the child/family. In a great number of circumstances - including all support to children affected by disability but not restricted to such support - the provision of alternatives such as direct payments or individual services funds can provide a creative and positive means by which to meet the child's needs. However in some instances the authority's safeguarding 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.
3.9 The authority should approach its duties on choice in relation to Section 22 support on 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 - i.e. the provision of a cash payment in place of support that would otherwise be directed by the person as a notional budget or arranged on their behalf - the 2013 Act's accompanying Regulations ("the Direct Payment Regulations 2014") 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.
3.10 See section 8 in this document for further guidance on the application of the four options contained in the 2013 Act in relation to support to children/families.
Email: Heather Palmer
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