Draft Self-directed Support Statutory Guidance on care and support

Section 9: Further Guidance

9.1 Children and families

This section provides guidance on the assessment of the child's needs, the choices that should be made available to the child/family and the involvement of the child in the assessment and support planning process. It should be considered alongside the Scottish Government's Guidance and Regulations on the Children (Scotland) Act 1995, in particular Chapter 1 on Promoting the Welfare of Children and Families: http://www.scotland.gov.uk/Publications/2004/10/20066/44709

92. Social care and support to children and families takes place within a wider policy and practice framework for children and young people. This framework 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.

93. Under the Getting it Right framework (and likely to be underpinned in law by the forthcoming Children and Young People Bill) 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. The concept relies on the principle that the Named Person will be there for each child and the role will be part of day-to-day work. 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.

94. The Named Person and the Lead Professional should be familiar with local protocols and procedures. The authority should take steps to promote the potential benefits offered by the various options available to individuals under social care law. Where the child has care and support needs which are being met under Section 22 or Section 23 of the 1995 Act the relevant professionals should be aware of the duties and powers under social care legislation, in particular the duties to offer choices in relation to the child's care and support.

Further guidance and hyperlinks:

Further information about the roles of the Named Person and Lead Professional can be found at: www.scotland.gov.uk/girfec

Care and support: the main legal duties and powers

95. Section 22 of the Children (Scotland) Act 1995 places a duty on the responsible authority to safeguard and promote the welfare of children in need and, where consistent with that, to promote the upbringing of children within their families. In each case, the local authority must provide a range and level of services appropriate to the child's needs. The accompanying Section 23 provides additional prescription in relation to any support related to disability. For instance, it requires any support to minimise the effect of disability on the child and to give the child the opportunity to live as normal a life as possible.

96. The professional should bear in mind that the definition of a "child in need", as provided in Section 22, 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. While the focus of support provided under section 22 is to support the child, the support may be provided to the wider family if/when it will help to safeguard or promote the welfare of the child.

The assessment and support planning process

97. Under the Getting it Right approach each child who requires support, whether from a single universal service or from several services or agencies, will have this support co-ordinated and recorded within a single plan. This should mean that the "social care" assessment and support planning process - i.e. the process described in this guidance - should feed into a single plan for the child. The professional should seek to ensure the assessment process is fully co-ordinated between adult and children's services, including any other relevant departments such as education. An approach based on personal outcomes will help to draw out the child and their family's views on the things they want to achieve, the things they'd like to do and how they'd like to do them. An approach based on personal outcomes will also help to ensure that the social care assessment can easily contribute to the Single Plan for the child. In undertaking the assessment, the professional should consider the SHANARRI framework².

Further guidance and hyperlinks:

Further guidance on Getting it right for every child is available at: www.scotland.gov.uk/girfec

Providing choice in the context of the wider safeguarding role

98. It is fundamental to the concept of the 2013 Act that it is the supported person and not the professional who gets to decide the option through which the service is delivered - subject of course to any restrictions laid down in the Act or its regulations. However, the Act does not override professional judgment as to the nature of the services to be provided under a particular option. In all cases, the professional must ensure that the particular type of support will ensure the young supported person's safety and promote their welfare. Where this is not the case, the professional should explain to the young supported person and their family why the support provided under alternative options will not meet their outcomes. It is important to emphasise that choices in these circumstances will involve the professional guiding the appropriate person to explore and understand the context around the options which would best promote the welfare of the child. Given social work interventions often manage crisis situations to settle into more supported on-going arrangements, the potential for including all of the various choices in forward planning should be viewed positively.

Note: Alongside this guidance the Scottish Government is consulting on draft Regulations on direct payments. Please consider the consultation document accompanying the draft Regulations. The document invites views on whether Ministers should use Regulations to place specific restrictions on the duty to allow a direct payment with respect to children's support. Are there specific circumstances where it would never be appropriate to offer Options 1 or 2 with respect to children's support? If so, what are these circumstances and why/how should they be prescribed in the secondary legislation?

The involvement of the child in making and managing choices

99. If the child is 16 or older then the child will have the right to make decisions about their support - in other words, they will be able to choose how they wish to arrange their support. If the child is under 16 then the person with responsibility for the child - called the "appropriate person" on the face of the 2013 Act - should make decisions about the child's support. The professional should inform the appropriate person that they must, in so far as practicable and taking account of the maturity of the child, give the child an opportunity to indicate whether they want to express a view about their support. If the child wishes to express a view then the appropriate person should give the child an opportunity to express their view. The appropriate person should also have regard to the views of the child in making the key decisions about that child's support.

100. The child's opinions need to be actively sought and their behaviour observed with the adults who will be supporting them. A few trial or observation visits may be needed to get their views. The child should be given appropriate help to express their views and wishes, and should have access to independent advocacy when appropriate. The professional will need to handle such issues sensitively in terms of the family situation where there may be parental conflict with the views of the child. It is important to recognise the views of parents who have been managing the delivery of support for their child in setting in place any new arrangements once the young supported person reaches age 16.

"Transition" from children's support into adult's support

101. For any young person the process of growing up involves the gradual taking on of responsibility for themselves. Parents can face challenges in supporting and preparing young people for an independent adult life. The transition to greater independence is rarely a single event, nor does it happen quickly. However families with disabled children often face additional challenges that may delay or limit the young person's "transition" towards independence. The greater flexibility offered by options 1 and 2 in the 2013 Act may offer advantages to the young person and their family. A direct payment or the opportunity to take control of their support may help them to take on greater responsibility right across their life, to be more independent and to have greater control over their future. Alternatively, the "mix and match" approach (where the young supported person takes direct control over a portion of their package or to meet a small collection of outcomes) may offer an opportunity to build the young supported person's confidence in managing their own support. The professional may want to facilitate transitional arrangements whereby initially the young person manages only a small proportion of their support but takes on greater responsibility over time.

102. Throughout the assessment and support planning process the young person should receive the practical support that they need in order to help them to make the relevant decisions and manage their support. This may include assistance from parents and carers, independent advice and support or, in some cases, advocacy services. The young person's ability to manage may change as they gain experience. Where the young person or family decides to take greater control - for instance, to take a direct payment and employ their own staff then additional local support services - the professional should ensure that they direct the young person and their family to agencies that assist with employment advice and payroll support.

Incapacity

103. Where the child or young person lacks capacity or may lack capacity in future the professional should make the child and their family aware of the Adults with Incapacity (Scotland) 2000 Act ("the AWI Act"). They should inform the child and their family about the opportunity to apply for power of attorney and guardianship.

The promotion of the options to children and families

104. Under the 2013 Act the authority responsible for assessment has a duty to promote the options. This applies to children and families in the same way that it applies to any client group. Under this duty the authority should take steps to:

• promote self-directed support for children and young people;
• ensure the families of disabled children and young people have access to information targeted to their needs;
• provide specialist support targeted to children and young people's needs, for example an advocate or support worker may be needed with specialist skills, and;
• train social work and health professionals, and encourage a culture of positive risk taking to enable more children and young people to benefit from the support, whatever option they choose.

Further guidance and hyperlinks:

Care Inspectorate Practice Guide: Involving Children and Young People in Improving Services
http://www.scswis.com/index.php?option=com_docman&task=cat_view&gid=533&Itemid=378#

Institute for Research and Innovation in Social Services, Leading for Outcomes: Children and Young People
http://www.iriss.org.uk/resources/leading-outcomes-children-and-young-people

Scottish Government (2010) National Guidance for Child Protection in Scotland
http://www.scotland.gov.uk/Publications/2010/12/09134441/0

Scottish Government (2011) Guidance on the Looked After Children (Scotland) Regulations 2009 and the Adoption and Children (Scotland) Act 2007
http://www.scotland.gov.uk/Publications/2011/03/10110037/0

Further links (including a guide to professionals, user's guide and carer's guide) to follow.

Draft Statutory Guidance on Care and Support

Consultation Questions

Section 9.1 : Children and Families

9.2 Supported decision-making and circles of support

The professional can face challenges where there are issues about the supported person's capacity to make, understand or communicate decisions. This section:

• provides guidance on the provision of assistance by others (known as "circles of support") in order to help an individual to make or communicate their decisions, and;
• clarifies the powers available to attorneys and guardians in relation to the assessment and support planning process.

Assistance

105. Under Sections 6 and 17 of the 2013 Act the professional must take reasonable steps to facilitate assistance which will help the supported person to play a full part in their assessment, to understand the various choices available to them and to decide how and what ways they would like to arrange their support. The purpose behind Sections 6 and 17 is to encourage reasonable, practicable steps to maximise the choice and control available to the supported person. It is not about imposing assistance on individuals. It is not about appointing proxy decision makers.

Assistance with understanding and/or making decisions

106. The supported person may find it difficult to make a decision on their own. However with some additional support they may be able to make the necessary decisions associated with the assessment, support planning process or the actual provision of support. Where the professional believes the supported person would benefit from further assistance, they should first consider the full range decisions that will have to be made during the course of the supported person's pathway. Though every assessment will be unique, the main decisions are likely to cover:

• decisions about the outcomes that the supported person wants to achieve;
• decisions about the steps that the supported person wants to take to achieve those outcomes;
• decisions about the means by which the supported person will receive their support;
• the range of reactive or management decisions that come with the on-going day to day provision of support, and;
• any further decisions about needs, outcomes and plans associated with the review of a supported person's needs.

107. The professional must then take "reasonable steps" to enable the supported person to make the relevant decisions. They should exercise judgement in deciding whether the supported person requires such assistance. However, where they decide that additional assistance is required they must take reasonable steps to identify a person or persons who can provide some extra assistance to the supported person. After this step, but only with the supported person's agreement, they should then involve the relevant individuals.

108. Where a supported decision-making arrangement or a "circle of support" is being considered the agreement of the supported person is paramount. The supported person must be invited to agree to any arrangement whereby another individual or group of individuals are being invited to provide them with assistance. The supported person's agreement must be secured before the individual(s) can provide any assistance.

109. It is important that the person(s) providing any assistance are able to provide that assistance. While there is no requirement for the individual(s) providing the assistance to have professional qualifications in supported decision-making, they should have an understanding of the type of assistance required and the limits and boundaries of what is meant by "assistance". In other words, they should be aware:

• of their role and the limits of their role, and;
• the fact that their role is to help the supported person to make decisions and not to make decisions on the supported person's behalf.

110. Only guardians or attorneys appointed under the "AWI Act" have the power to make decisions on another supported person's behalf. On certain occasions it would be reasonable to predict that the supported person's condition will deteriorate over time such that they will lack capacity to make decisions. The professional should therefore take steps to make the supported person and their family aware of the option to apply for power of attorney. Alternatively, a person's capacity to make or understand decisions may fluctuate. Where this is the case the professional should consider the benefits of an Advanced Statement under the Mental Health (Care and Treatment) Act 2003.³

Assistance with communicating decisions

111. As stated, assistance to make decisions and assistance to communicate decisions are two distinct forms of assistance, and they are treated as such on the face of the 2013 Act. The supported person may require some additional support from, for example, an interpreter or a speech and language therapist, or from a family member or friend. If so, the professional must take reasonable steps to identify other people who can help the supported person to communicate their decisions. The professional should take steps to get the supported person's agreement before they arrange any assistance for the supported person.

What to do when the supported person lacks capacity

112. Where the supported person has a guardian or attorney, and where that "proxy" has the necessary powers, the guardian or attorney should be supported to make the relevant decisions in relation to the person's assessment, the support plan, the provision of choice in relation to the person's support and the support itself. The professional should ensure that the proxy is:

• fully involved in the assessment;
• supported to collaborate with the professional, and;
• supported to make informed choices about the supported person's support.

113. The professional may have doubts or questions about a supported person's capacity. If so, they should seek assistance from a Mental Health Officer. Where the professional concludes that an application for guardianship would be appropriate they should discuss this with the supported person's family or others who may have an interest in the supported person's care and support. The local authority can apply to the court for a guardianship order over an individual.

Further guidance and hyperlinks:

Chapter 4 of the AWI Act Code of Practice for Local Authorities contains further guidance on the relevant AWI powers and duties and how these relate to the assessment and support planning process.

Institute for Research and Innovation in Social Services, Leading for Outcomes: Dementia
http://www.iriss.org.uk/resources/leading-outcomes-dementia

Further links (including a guide to professionals, user's guide and carer's guide) to follow.

Powers of Attorney and Guardianship

Office of the Public Guardian (Scotland)
http://www.publicguardian-scotland.gov.uk/

Mental Welfare Commission for Scotland - Good Practice Guides
http://www.mwcscot.org.uk/publications/good-practice-guides/

Further links (including a guide to professionals, user's guide and carer's guide) to follow.

Draft Statutory Guidance on Care and Support

Consultation Questions

Section 9.2 : Supported decision-making and circles of support

9.3 Carers

This section contains guidance on carers assessments, the provision of support to carers following the carer's assessment and the provision of choice to carers with respect to any support that they might receive.

The main legal references for this section of the guidance are:

• Section 12AA of the Social Work (Scotland) Act 1968 and section 24 of the Children (Scotland) Act 1995: Assessment of ability to provide care
• Section 3 of the Social Care (Self-directed Support) (Scotland) Act 2013: Support for adult carers
• Section 7 of the Social Care (Self-directed Support) (Scotland) Act 2013: Choice of options: adult carers along with all accompanying sections of the 2013 Act, in particular sections 1, 2, 4, 9 and 11-16.

The carer's assessment

114. A carer who provides a substantial amount of care on a regular basis has the right to request an assessment of their own needs as a carer. This is known as a carer's assessment. Under Section 12AA of the 1968 Act (relating to carers of adults) and Section 24 of the 1995 Act (relating to carers of children) the professional must comply with any such request. In addition, the professional has an obligation to inform individuals of the right to request an assessment under section 12AB of the 1968 Act and section 24A of the 1995 Act.

115. A good quality carer's assessment rests on a problem-solving conversation between the professional and the carer and a strong focus on personal outcomes. Sections 4 and 5 in this document provide general guidance on how to conduct assessments - and much of this is equally relevant to carers assessments.

Further guidance and hyperlinks:

For further guidance on the legal basis and policy aims for carer's assessments see the Scottish Executive's Community Care and Health (Scotland) Act 2002: New Statutory Rights for Carers: Guidance
http://www.sehd.scot.nhs.uk/publications/cc2003_02full.pdf

For practical guidance on how to conduct a carer's assessment, please see further good practice guidance [currently under development by Scottish Government, national carers organisations and other partners].

Support to the carer

116. The 2013 Act contains additional requirements on the professional in relation to the outcome or end result from the initial assessment.⁴ First, it places a duty on the professional to consider the conclusions from the assessment. In considering this aspect the professional must consider whether the carer would benefit from some form of support to enable them to continue in their caring role. If the answer is "yes" then Section 3 of the 2013 Act provides the legal basis for the professional to work with an adult carer in order to arrange some support. For young carers the basis is section 22 of the Children (Scotland) Act 1995.

117. Support to a carer can mean a wide variety of things. It can mean access to universal services available in the community, referral to a known source of information and advice (for example, to a condition-specific organisation or to a carers centre) or the provision of further information in the form of booklets, websites, advice or guidance on coping with their caring role.

118. It can also mean arranging some form of "funded" services or support. Funded support to the carer can be of significant benefit to the carer and to the supported person. It can also lead to significant benefits to the statutory agencies responsible for care and support. Carers do not tend to "down tools" but without the contribution of the carer or other friends and relatives, it would be the statutory agency which would otherwise have to step in with higher levels of support to the supported person in need. Senior managers should encourage professionals to exercise their own judgement, consider the outcomes alongside carers and put in place the right support at the right time.

The choices that must be made available to the carer

119. If, as a result of the assessment, the professional decides to provide funded support, they must offer the carer choices as to how they wish to receive that support. They must provide the carer with the various options within the 2013 Act and they must give effect to the carer's choice. As with support to the disabled or older person, they must inform the carer of the amount of support available under each of the options. If the carer does not wish to make their own decision about how they will receive any support (and assuming that they still wish to receive support) then the professional should continue to arrange support on their behalf.

Information and additional advice and support to carers

120. The professional must collaborate with the carer in relation to their assessment. They must: take steps to ensure the carer can exercise informed choice; involve the carer in the assessment and in the decisions around any support to them in their own right, and take steps to ensure that the carer makes an informed choice. This means that they must provide the following:

• an explanation of the nature and effect of the various options under which they may arrange their carer support;
• information about how to manage that support;
• information about people or organisations, including independent organisations, who can provide assistance or information to the carer to help them to make decisions about the options (this might include general advice and information support services or it might mean more specialist advice from a carer's organisation);
• information about how to manage their carer's support, and;
• in any case where the authority considers it appropriate to do so, information about supported persons who provide independent advocacy services to help the carer to take part in their assessment to navigate their choices and to arrange their carer support.

121. The professional will want to make the options "come alive" for the carer and make the choices meaningful and relevant. Table 9 provides some examples of what the various choices may mean in practice in terms of carer's support:

Table 9: Examples of carer's support under the 2013 Act

2013 Act option	Example
Direct payment	The professional arranges a regular direct payment covering a 3 month period while the carer recovers from a hip operation. Because of the carer's decreased mobility, they are not able to carry out both the caring and the household tasks. The carer uses the payment to purchase domestic help - someone to do the cleaning and ironing, to tidy the home and assist with some of the domestic tasks and demands - and, as a result of the support provided via the direct payment, is able to continue caring.
Directing the available support	The carer receives a carer's short break voucher as a form of "virtual budget" and they use this to purchase a short break. The professional arranges for an individual service fund to be set up. They arrange for this to be transferred to a third sector organisation (say, a carer's centre). This organisation purchases training or peer support sessions under the direction of the carer.
Arranged services	The professional arranges for the carer to attend a series of peer support sessions provided under contract to the local authority. The professional refers the carer to their local carer's centre which is grant funded or funded under contract with the authority.

Case Study 3:

Support to carers: Isobel and John's story

Isobel cares for her husband who needs a lot of help with personal care. John doesn't want anyone other than his wife to help but she is exhausted trying to care for her husband and run the house. It's difficult to get time to do laundry, shopping etc. Following a carer's assessment the local authority provides Isobel with a budget of £40 per week to help with tasks that will enable her to concentrate on providing support to John, which is what she wants to do. The couple also receive support to have short breaks together of up to two weeks per year in accessible accommodation.⁵ This has helped relieve the stress felt by Isobel and has improved their relationship.

Charging for support to carers

Consultation issue: Separate to this consultation the Scottish Government is consulting on draft regulations and guidance in relation to charging for carers support provided under Section 3 of the Social Care (Self-directed Support) (Scotland) Act 2013. The Scottish Government proposes to lay regulations which would waive all such charges and some charges for related services or support to cared-for persons which enable the carer's support to be delivered in practice. This guidance document will be updated to reflect the final version of the Carer's Charging Regulations along with any accompanying guidance.

Support to carers out-with the formal carer's assessment

122. Early preventative support helps to lessen any negative impact of a caring role. Working together, the carer and the professional can ensure better emotional and physical wellbeing for the carer by putting preventative support in place. The aim is to support the carer in circumstances such as the early stages of a caring role knowing that the caring will become more intensive in due course (for example, caring for a supported person just diagnosed with dementia) or whilst caring for someone whose condition is known to remain stable and low-level.

123. It is important to remember that the characteristics of the individual carer are relevant when deciding whether that individual is providing a substantial amount of care on a regular basis. For example, they might be very old themselves and in poor health. Preventative support is more cost-effective than support provided in a crisis or emergency. Carers who do not meet the threshold for a carer's assessment (in other words they are not providing a substantial amount of care on a regular basis) can still benefit from low-level preventative support, and carers who feel confident enough to access low-level support are more likely to take up further support should their caring role increase in the future. In some cases the carer may not wish to undertake a full assessment. Carers need not, therefore, undertake a formal assessment in order to receive some kind of support from the authority.

Further guidance and hyperlinks:

Scottish Government (2010) Caring Together: The Carers Strategy for Scotland 2010 - 2015
http://www.scotland.gov.uk/Publications/2010/07/23153304/0

Draft Statutory Guidance on Care and Support

Consultation Questions

Section 9.3: Carers

9.4 Direct Payments

Direct payments have their own distinct characteristics - aspects which set them apart from the other options that a person may choose. This section provides further guidance on direct payments.

The fundamental characteristics of a direct payment

124. A direct payment is not a benefit and nor is it a gift. It is a means by which to meet eligible needs. Its ultimate purpose is to meet the eligible needs for the individual. As such, it should relate to the person's support plan. The direct payment funding should be used in flexible ways, but it must relate in some way to the outcomes set out in the supported person's support plan. The professional should take care to ensure that the supported person understands what a direct payment is and how it might be used. The professional should take steps to learn about the nature and effect of a direct payment, the purpose behind a direct payment and the flexibility and responsibilities that come with direct payments. They should engage with the philosophy behind direct payments and their potential application for a wide range of individuals and circumstances.

Third party direct payments

125. Under the Self-directed Support (Direct Payments)(Scotland) Regulations ('the Direct Payments Regulations') which are consulted on in draft alongside this guidance, the supported person can ask for their direct payment to be paid to a third party - a supported person or an organisation - and administered on the supported person's behalf. Under a third party direct payment, the person remains in control of the payment and the person remains responsible for the direct payment. They supported person should be made aware of this.

Circumstances where the professional cannot offer a direct payment

126. There are certain circumstances where social care legislation prevents the professional from offering the direct payment option. The relevant circumstances are contained in the draft Direct Payments Regulations. Where a person is deemed to be ineligible for the direct payment, it is not sufficient for the professional to simply inform the supported person that they cannot have a direct payment and leave matters there. They must notify the supported person as to the reason why they cannot have a direct payment. They must explain the circumstances in which the authority must review the question of whether the supported person is ineligible. Finally, they must give the supported person the option of choosing the other options available. Where there is a subsequent material change in the supported person's circumstance and the supported person asks for a review of their ineligibility for the direct payment, the professional must provide the supported person with an opportunity to choose from the four options in the 2013 Act.

The choices available to a supported person under a direct payment

127. What can a supported person do with their direct payment? The short answer is anything, provided that it meets the supported person's "assessed need", relates to the outcomes within the person's support plan and the supported person acts within the criminal and civil law. Typically, direct payments have been understood as a route to employing a personal assistant. However, a direct payment can also be used to purchase:

• a service from the local authority or from another local authority;
• a service from a provider organisation in either the voluntary or private sector;
• a physical "thing" which helps to meet the supported person's needs;
• a holiday or respite of one sort or another, or;
• anything else which helps to meet the supported person's needs, has a link to the outcomes in the supported person's support plan

128. Of the four options available under the 2013 Act, the direct payment, if constructed and developed on a sound basis, carries the greatest level of flexibility. Professionals should make this point clear to individuals. Similarly, the organisation as a whole should seek to convey this point in the promotional literature.

129. On occasion, the professional will have doubts that a particular purchase is an appropriate use of the direct payment. The professional should seek to anchor any discussion in the person's assessed needs and in the outcomes contained within the person's care and support plan. The key question is whether the support in question will meet the personal outcomes and assessed needs for the individual. The professional must be open and honest with the supported person. Where they conclude that a particular form of support will not meet the person's assessed needs and outcomes they should seek to explain why this is the case.

The responsibilities that come with a direct payment

130. The supported person should be provided with the relevant information to allow them to come to an informed choice. There are certain responsibilities that come with a direct payment and these should be explained to the person. There is no specific legal requirement to do so, but it would represent good practice to explain the following responsibilities:

• to use the payment to meet the outcomes within the support plan;
• to report back in a proportionate and reasonable way on how the funding is being spent, and;
• where the supported person chooses to employ a Personal Assistant, the responsibility to be a good employer and to discharge the range of additional responsibilities that come with being an employer (the main responsibilities relate to disclosure, employment law, payroll, staff development and training).

131. The professional should take steps to provide this information to the supported person and they should point the supported person towards further sources of information which can help them to understand their responsibilities.

Further guidance and hyperlinks:

For further guidance on direct payments and the Protecting Vulnerable Groups scheme, consult the Scottish Government's "Guidance on the interaction between Self-Directed Support and Protecting Vulnerable Groups Scheme": http://www.scotland.gov.uk/Publications/2011/08/04111811/0

Monitoring and administration of direct payments

132. A direct payment is a cash payment in order to meet assessed needs. As such, it requires a proportionate level of financial and welfare monitoring. It is essential that monitoring is co-ordinated in an effective and efficient way. Honest mistakes should not be penalised. When an administrative error is made, the local authority should ensure support is provided to address any gaps in knowledge or expertise.

"Welfare" monitoring

133. The professional should not rely on the support person asking for help, particularly when that person is embarking on a direct payment for the first time. A local independent support organisation or independent advocacy service may help the person raise any issues which are giving concern. Packages which include health services will require to be monitored by health professionals who will have the necessary expertise to judge whether the person's health needs are being met.

Financial monitoring

134. The authority should consider the national Chartered Institute of Public Finance and Accountancy (CIPFA) good practice guidance which recommends proportionate monitoring, focused on outcomes, and with as light a touch as possible.

Terminating and recovering direct payments

135. The professional may have to consider using the powers available to them under the Direct Payments Regulations to terminate the direct payment.

136. Any decision to terminate a direct payment should follow a thorough discussion with the supported person, carer(s) and circle(s) of support. If the person chooses to receive the support by means of a direct payment, and the person is eligible to do so in terms of the 2013 Act and Direct Payments Regulations, the local authority must provide the direct payment. The local authority can then only terminate the direct payment in the circumstances laid down in those Regulations (including that it has been used for some purpose other than to secure the agreed support).

137. The professional should inform the person of any decision or potential decision to terminate a direct payment as soon as possible. They should keep the supported person informed throughout the process. It is recommended that they set a minimum period of notice which will normally be given before the payments are discontinued, and include it in the information to be provided to people who are considering their options at the outset. The authority should bear in mind any contracts into which the supported person has entered.

138. The supported person may have to enter hospital for a short period. If so, and where the person employs a personal assistant, the professional should take all necessary steps to ensure that the direct payment continues to pay the staff costs in line with employment legislation. This is the best way to ensure continuity of care and support, avoid legal challenges and avoid the stress and disruption of repeated recruitment processes. This can ensure that the person can continue to receive appropriate support under the 1968 Act or 1995 Act in the temporary hospital setting.

139. It may make sense to discontinue the direct payment temporarily, for example when the supported person enters hospital for a longer period or because their condition improves. In such cases, the professional should discuss with the supported person how best to manage the crisis period. The aim should be to help the supported person to resume responsibility for their own services after the interruption, if that remains their wish.

Further guidance and hyperlinks:

Scottish Personal Assistant Employers Network
http://www.spaen.co.uk

Self-directed Support Scotland
http://www.sdsscotland.org.uk/

Further links (including a guide to professionals, user's guide and carer's guide) to follow.

Draft Statutory Guidance on Care and Support

Consultation Questions

Section 9.4: Direct payments

9.5 Wider legal duties and strategic responsibilities of local authorities

This section covers the relationship between the 2013 Act and:

• adult support and protection;
• re-ablement and intermediate care;
• residential care;
• personal and nursing care;
• housing support;
• equipment and adaptations (including housing adaptations);
• other forms of social welfare support such as assistance to people fleeing domestic abuse, assistance to address homelessness or drug and alcohol addiction, and;
• charging.

Adult support and protection

140. 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.

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

141. The local authority will wish to ensure that there is an effective and positive link established between their adult support and protection duties and their assessment and support planning duties. There are some simple, practical steps that they should take in order to foster a positive link between the two frameworks. For example:

• they should ensure that professional(s) involved in assessment and support planning take a thorough approach to risk assessment, enablement and management (see section 5 for further guidance);
• they should fully involve the supported person at every stage in the person's assessment and support planning pathway;
• they should ensure effective arrangements for the review and monitoring of support, and;
• they should ensure that adult protection duties are incorporated and highlighted in any social care training, and vice versa.

142. There will be occasions where the professional will have to consider and/or use their safeguarding powers. See section 9.1 for guidance on child safeguarding/protection and the links to care and support duties.

Re-ablement

143. Re-ablement services involve a short term package of support provided over a 6 week period. Re-ablement 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. It would be sensible for the professional 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 professional must offer the person the various choices set out in the 2013 Act.

Intermediate Care

144. 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
http://www.scotland.gov.uk/Publications/2012/07/1181

145. The "gateway" into intermediate care is a multi-disciplinary assessment of one form or another. In light of the short-term intensive nature of the intervention, intermediate care should 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 professional must offer the supported person the choices set out in the 2013 Act.

Consultation issue:

Re-ablement and intermediate care may involve elements of both health care (provided by the NHS) and social care (provided by local authorities). Insofar as the support is social care, the guidance provided in this section views re-ablement and intermediate care as forming part of the assessment process, as opposed to an on-going form of support.

The duties in the 2013 Act to offer the various options as to the mechanisms for receiving support only apply to support which a local authority decides to provide after the assessment process. They would therefore not apply to forms of support provided before an assessment has been completed.

It would be possible to put the question of whether the Options apply in these circumstances beyond doubt by making regulations to provide that Options 1 and 2 under the 2013 Act do not apply to re-ablement and intermediate care services, even where they are provided under the 1968 Act.

Consultees may wish to consider whether a firm statement on the face of the law would be helpful. Alternatively, others may take the view that professionals should be compelled to offer a variety of options in the provision of intermediate care or re-ablement services.

Please record your views as part of your response to question 12a.

Residential Care

146. 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 professional 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 professional must collaborate with the supported person, ensure that the supported person can make informed choices and involve the supported person in their assessment.

Consultation issue:

As part of the consultation on draft Regulations to accompany the 2013 Act, Ministers are inviting views on whether or not to allow direct payments to be used for the purchase of residential care. Please see the accompanying draft Regulations and consultation paper on draft Regulations if you wish to provide a view on this question.

147. As stated, as part of the consultation on this guidance Ministers are inviting views on whether or not to place a legal duty on professionals to offer the supported person the direct payment option for the purchase of residential care. However, the remaining choices provided in the 2013 Act (to direct the available support or to have their support arranged on their behalf) must be offered to the individual in a way that is meaningful and relevant to them in the context of residential care. In particular, the two parties should consider the flexibility that may be offered by Option 2 in the 2013 Act (i.e. where a support or service fund is directed by the individual). A care home fee, paid under the National Care Home Contract, is a good example of a virtual budget arrangement. However, there may be further opportunities to develop the concept and to explore the flexibility that may be offered by an individual fund for residential care.

148. Regardless of the particular mechanism by which the supported person arranges their care the initial choice of residential establishment and any subsequent change must be made in line with the Choice of Accommodation Directions and the accompanying guidance issued by Scottish Ministers.

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

149. 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 established "service" charges, with some services exempted from charging. However, where a supported person's package is predicated on flexible use of an identified budget rather than a menu of services, the authority is no longer able to charge on the basis of service types. Authorities should consider new approaches to charging - approaches which enable them to charge on the basis of a proportion of the supported person's budget as opposed to one form of service or another. Personal and nursing care support to people aged 65 and over must be provided free from any charge. Where this is the case, the authority should refer to Executive circular CCD 4/2002: Free personal and Nursing Care 19, particularly Section 5: Payment Mechanisms.

Personal and nursing care

150. 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 they should be provided with the full range of choices under the 2013 Act.

Housing support services

151. Housing support is support other than care or housing management services that will 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. Where housing services fall 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)

152. The professional 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.

153. 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 individual. 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.

Other forms of social welfare support: assistance to people fleeing domestic abuse, assistance to address homelessness or drug and alcohol addiction

Consultation issue:

Support provided under Section 12 of the 1968 Act can include a range of interventions beyond support to disabled and older people. For example, it may include support to address homelessness, drug or alcohol addiction, or assistance to promote the welfare of individuals who are fleeing domestic abuse. Direct payments and individual service funds may deliver positive outcomes to individuals eligible for support due to homelessness, drug or alcohol addiction or because they are fleeing domestic abuse. On the other hand, it may be inappropriate for alternatives such as direct payments or individual service funds to be made available for this particular set of social care needs. Scottish Ministers would like to hear your views. Should professionals be required by the law to offer all 4 options (i.e. including direct payments and individual service funds) or should they be prevented from doing so? Please record your views as part of your response to question 12a.

Draft Statutory Guidance on Care and Support

Consultation Questions

Section 9.5: Wider legal duties and strategic responsibilities

Draft Statutory Guidance on Care and Support

Consultation Questions - General Questions

The Guidance document as a whole

Question 13: Do you have any further general comments on the guidance?

For example, are there any gaps in terms of the topics covered by the guidance? Are there any major changes that you would recommend? Do you have any comments on the style and layout of the guidance, or the language used in the guidance?

The costs and benefits arising from this guidance

Question 14: Do you have any comments on the financial costs or benefits of the requirements set out in the guidance?

Can you identify any financial costs or benefits to individuals, local authorities, health boards, providers or any other person or organisation affected by the guidance. In considering the costs and benefits you may wish to consult the Business Regulatory Impact Assessment published for the Social Care (Self-directed Support) (Scotland) Act available at the following hyperlink: http://www.scotland.gov.uk/Publications/2012/03/5525

We plan to update the BRIA in light of the comments and information from this consultation.

The equality and human rights impacts of the guidance

Question 15 (a): Do you have any views on the impact of the guidance on any or all of the following equality categories:

i) age;

ii) disability

iii) gender;

iv) lesbian, gay, bisexual and transgender;

v) race, and;

vi) religion and belief

Some advice to help you to answer this question - By "equality impacts" we mean whether or not the guidance will affect certain groups in a positive or a negative way. In considering the impacts you may wish to consult the Equality Impact Assessment published for the Social Care (Self-directed Support) (Scotland) Act available at the following hyperlink: http://www.scotland.gov.uk/Publications/2012/03/9876

We plan to update the Equality Impact Assessment in light of the comments and information from this consultation.

Question 15 (b): Do you have any views on the impact of the guidance on human rights?

For more information about human rights please see the Scottish Human Rights Commission's website at: http://www.scottishhumanrights.com/abouthumanrights/whatarehumanrights