Carers Legislation - Consultation on Proposals

Annex F

Partial Business and Regulatory Impact Assessment

Title of Proposal

Carers and Young Carers Legislation

Purpose and intended effect

• Background
  Carers, or unpaid carers as they are also known, are individuals who provide care to family members, partners, friends and neighbours of any age who are affected by physical or mental illness, disability, frailty or substance misuse. In many circumstances this will be in instances where the cared-for person has one or more conditions. This care provided by unpaid carers is estimated to save the health and social care services over £10 billion^[70] every year in Scotland. The Scottish Government is supporting unpaid carers and young carers through a range of policies under the Manifesto commitments of the Government and the national carers and young carers' strategies, Caring Together and Getting it Right for Young Carers. These policies are being supported with over £112 million of funding being directed into local authorities, Health Boards and the Third Sector to improve outcomes for unpaid carers, young carers and the people they care for. However, despite these policies and investments the pace of improvement is not taking place quickly enough and unpaid carers and young carers across Scotland are experiencing differing levels of support. It is the aim of this carers' legislation to accelerate the pace of change in supporting carers and to bring a more consistent approach across all local authority and health board areas.

• Objective
  • The objectives of the carers' legislation will be to:
    • improve carers' health and wellbeing;
    • sustain the caring role;
    • enable carers to have life alongside caring;
    • assist carers to remain in or return to work;
    • enable access to community support networks; and
    • prevent or delay hospital or residential carer admissions for cared-for persons.

How carers' legislation fits with Scottish Policy

The Scottish Government's purpose is to focus Government and public services on creating a more successful country, with opportunities for all of Scotland to flourish, through increasing sustainable economic growth.

In order to achieve this purpose, Scottish Ministers are committed to the outcomes based approach as set out in the National Performance Framework's 10 year vision. This is a single framework to which all public services in Scotland are aligned, encouraging more effective partnership working. It is a framework based on delivering outcomes that improve the quality of life for people in Scotland, rather than on inputs and outputs. The National Performance Framework includes:

• 5 Strategic Objectives describing where the Scottish Government will focus its actions;
• 16 National Outcomes describing what the Scottish Government wants to achieve and the kind of Scotland we want to see.

The proposed carers' legislation closely aligns with the Healthier and Wealthier & Fairer Strategic Objectives, but also cuts across the Smarter objective.

It also aligns closely with a number of the National Outcomes, including:

• We live longer, healthier lives;
• We realise our full economic potential with more and better employment opportunities for our people;
• We are better educated, more skilled and more successful, renowned for our research and innovation;
• Our young people are successful learners, confident individuals, effective contributors and responsible citizens;
• We have tackled the significant inequalities in Scottish society;
• We have improved the life chances for children, young people and families at risk;
• We take pride in a strong, fair and inclusive national identity;
• Our people are able to maintain their independence as they get older and are able to access appropriate support when they need it;
• Our public services are high quality, continually improving, efficient and responsive to local people's needs.

Rationale for Government intervention

The Scottish Government, with partners, is making progress in supporting Scotland's carers and young carers. However, it is clear from research^[71] and other resources that more can be done to improve support to carers and young carers.

The aforementioned policies, as well as other recent and forthcoming legislation, will benefit carers and young carers.

The Social Care (Self-directed Support) (Scotland) Act 2013 will provide a power for local authorities to support carers and young carers when it is planned to come into force on 1 April 2014. This will allow local authorities to support carers and young carers at their discretion.

The Children and Young People (Scotland) Bill, subject to Parliamentary approval and Royal Assent, will benefit both young carers and carers of disabled children by improving the way they are supported by services. It will promote cooperative working between services with the child at the centre.

The Public Bodies (Joint Working) Scotland Bill aims, through the integration of health and social care services, to improve outcomes for services users, including carers by providing a framework to support improvement in quality and consistency across health and social care services.

Notwithstanding the aforementioned developments, there is a role for legislation specific to carers and young carers. The proposals contained within the consultation document cover the continuum of the caring journey. They aim to accelerate the progress that has already been made, ensure greater consistency and support for carers and young carers and help to achieve better and sustained outcomes. It also expected that carers' legislation will inspire renewed debate and ambition for what Scotland's carers and young carers can expect.

Consultation

The legislation will be developed in a collaborative way involving colleagues from across and outwith the Scottish Government.

• Within Government
  We are working with colleagues across the Scottish Government to develop this legislation. This includes, but is not restricted to, the following teams:
  • Children's Rights and Wellbeing
  • Integration and Reshaping Care
  • Colleges and Adult Learning - Funding and Policy
  • Directorate for Legal Services
  • Health Analytical Services
  • Health Finance
  • Higher Education and Learner Support
  • Mental Health and Protection of Rights
  • Office of the Chief Social Work Adviser
  • Primary Care and Support
  • Primary Medical Services
  • Allied Health Professionals Unit
  • Equalities Unit

• Public Consultation
  A formal consultation for the carers' legislation is scheduled to be held from January to April 2014 and will follow the standard 12 week consultation process. We are planning to meet with a number of groups and organisations during this period, including but not restricted to:
  • Association of Directors of Social Work (ADSW)
  • Association of Directors of Education (ADES)
  • Convention of Scottish Local Authorities (COSLA)
  • Carers and Young Carers Strategy Implementation Monitoring Group
  • Carers Reference Group
  • Health Boards
  • Local Authorities
  • National Carers Organisations
  • Scottish Council for Voluntary Services
  • Scottish Social Services Council (SSSC)
  • Scottish Youth Parliament
  • SOLACE

• Formal Consultation
  The formal consultation will take place between January and April 2014. The consultation materials will be available on the Scottish Government's website and will be sent to a wide range of stakeholders. We will also use social media, most likely twitter, to provide updates.

• Business
  We will identify relevant organisations to meet with during the consultation period.

Options

Option 1 - Do Nothing

The first option would be to continue with the legislative situation as it currently is:

Carers Assessments

Section 12AA of the Social Work (Scotland) Act of 1968 states that:
"A person ("the carer") who provides, or intends to provide, a substantial amount of care on a regular basis for a person aged eighteen or over ("the person cared for") may, whether or not the carer is a child, request a local authority to make an assessment ("the carer's assessment") of the carer's ability to provide or to continue to provide such care for that person.
Specific Reference is made to carers of disabled children in the Children (Scotland) Act of 1995. It states that:
"…a person ("the carer") who provides, or intends to provide, a substantial amount of care on a regular basis for a disabled child may, whether or not the carer is a disable child, request a local authority to make an assessment ("the carer's assessment") of the carer's ability to provide or continue to provide such care for the child."

Information and Advice
There is statutory provision which requires local authorities to notify carers that they may be entitled to request a carer's assessment.^[72] With regard to Health Boards, Scottish Ministers may require Health Boards to prepare and submit to them a Carer Information Strategy for informing carers who appear to the Board to be entitled to a carer's assessment that they may have such rights.^[73]

There are also provisions in law requiring local authorities to provide service users with information^[74] and also to publish information, for example, about relevant services they provide in respect of children.^[75]

The Patient Rights (Scotland) Act 2011^[76] also contains provisions about providing information to patients and the provision of patient advice and support services.

The Social Care (Self-directed Support) (Scotland) Act 2013 includes duties for local authorities to provide information to adults, children, carers and young carers about self-directed support in relation to the four options available to service users and carers.^[77]

There are provisions in the Children and Young People (Scotland) Bill^[78] for service providers to communicate information about the role of named persons and for service providers to share information.

Support
The Social Care (Self-directed Support) Scotland Act of 2013 will give local authorities, for the first time, a discretionary power to provide support directly to carers. It will also allow carers to choose one of the four option for self-directed support:

• Option 1 - The making of a direct payment by the local authority to the supported person for the provision of support.
• Option 2 - The selection of support by the supported person, the making of arrangements for the provision of it by the local authority on behalf of the supported person and, where it is provided by someone other than the local authority, the payment by the local authority of the relevant amount in respect of the cost of that provision.
• Option 3 - The selection of support for the supported person by the local authority, the making of arrangements for the provision of it by the authority and, where it it's provided by someone other than authority, the payment by the authority of the relevant amount in respect of the cost of that provision.
• Option 4 - The selection by the supported person of option 1,2 or 3 for each type of support, and where it is provided by someone other than the authority, the payment by the local authority of the relevant cost of the support.

Sectors and groups affected

The Public Sector

The public sector organisations that may be affected by the current situation include:

• Local Authorities
• Health Boards
• Care Inspectorate
• College Development Network
• Education Scotland
• Mental Welfare Commission for Scotland
• NHS 24
• NHS Education for Scotland
• NHS Health Scotland
• The Scottish Government
• Social Service Scotland Council
• Scottish Public Service Ombudsman
• Skills Development Scotland

The Private Sector

Information, Advice and Support for carers and young carers will be delivered mainly by Third Sector organisations. However, some services will be delivered by private organisations, especially in relation to issue of short breaks provision.

Third Sector

The Third Sector provides a high proportion of the services that support carers. There are a number of carers centres and young carers projects across the country that are given financial support to provide information, advice and support to carers and young carers. Carers' centres may also carry out a carer's assessment on behalf of a local authority.

• Benefit of continuing with the current situation
  The benefits of continuing with the current legal situation relate mostly to further progress which might be made through policy and practice developments. Moreover, the cost of implementing new legislation needs to be taken into account. However, this does not take account of the expected longer term savings that will result of moving the provision of support away from crisis management towards prevention.
  As part of the Bill process a full Financial Memorandum will be written. The financial implications of any new legislation will be fully developed in consultation with COSLA, local authorities, Health Boards and key Third Sector organisations.

• Costs of continuing with the current situation
  As highlighted, the cost of supporting carers will continue to be skewed towards the crisis management of caring situations at risk of collapse. In the majority of situations, crisis management care is delivered at a significantly higher cost than preventative and planned care approaches.
  We recognise, however, that some preventative support is provided by carers centres, Health Boards, local authorities and Third Sector organisations. Moreover, the aim of the provisions in the SDS Act is to provide support on a preventative basis.
  The proposed new legislation aims to move this focus towards the provision of preventative support with the aim of reducing the likelihood of caring relationships descending into crisis points. Moreover, the new legislation will provide an impetus for change, ensuring support to carers and young carers is provided on a more consistent basis.

Option 2 - Introduce Carers Legislation The full consultation document covering the proposed legislative measures that will be developed is published in conjunction with this partial BRIA. These proposals aim to cover the continuum of unpaid caring:

• The Carer's Assessment (the Carer's Support Plan) - The carer's assessment is the gateway to carers accessing support. The consultation will ask for views on changing the name of the carer's assessment to the 'carer's support plan' to remove the negative connotations of the word assessment. It will also propose that the current 'regular and substantial' test for carers' eligibility to be assessed is removed. It is also suggested that further criteria are removed from the assessment process. It is proposed that local authorities will be required to notify carers of the timescale for receiving an assessment and to be advised of the reasons if this timescale is not met.

• Information and Advice - Access to relevant, accurate and timely information and advice is key to supporting carers, and the individuals they care for. Many carers say that this support, at an early stage and at appropriate milestones in their caring journey, is fundamental to maintaining their caring role. The consultation proposes that, to ensure information to carers is readily available, that a statutory duty is placed on local authorities to provide local information on carer's assessments and available carer support. To reflect developments as the Public Bodies (Joint Working) (Scotland) Bill moves through the Parliamentary process, it is proposed that the statutory requirement for Health Boards to prepare and submit Carer Information Strategies is removed. This is due to the requirement becoming redundant as health and social care integration is established.

• Support to carers (other than information and advice) - There are currently no provisions within social care law to directly support carers. Where local authorities support carers directly now, they are using the power to advance well-being in section 20 of the Local Government in Scotland Act 2003. From 1 April 2014, local authorities will have a discretionary power to support carers when the Social Care (Self-directed Support) (Scotland) Act 2013 comes into force. The consultation proposes a range of scenarios relating to support. This includes:
  • retaining the status quo and using the forthcoming discretionary powers under the Self Directed Support Act;
  • introducing a duty for local authorities to provide support based on an eligibility framework by either direct support to the carer and/or by the provision of services to the cared-for person.
  The consultation also asks respondents for their views on introducing a statutory duty for the provision of short breaks.

• Stages and Transitions - Carers experience difficulties and challenges as the individuals they care for move through both stages (e.g. the deteriorating health of the individuals they care for) and transitions (from children to adult services). Better planning around this would help to alleviate many of these issues.

Young carers may also experience difficulties as they move from being a young carer to becoming an adult carer. The consultation will look at whether there should be a legal obligation for local authorities to provide young carers with a carers support plan, if it appears that they will become an adult carer, ahead of their 18^th birthday.

• Carer involvement - The consultation proposes to make provision for carer involvement in the planning, shaping and delivery of services for the people they care for and support for carers in areas outwith the scope of health and social care integration. It also proposes to make provision for involvement by carers' organisations in the planning, shaping and delivery of services and support falling outwith the scope of integration. The consultation suggests that carers' legislation includes a principle about carer involvement in care planning for service users (subject to consent) and support for themselves in areas not covered in existing legislation. It is also proposed that carers' legislation includes a principle about young carer involvement in care planning for service users (subject to consent) and support for themselves.

• Planning and Delivery - The consultation proposes measures to ensure that carers and relevant organisations are involved in the planning of services with local authorities and Health Boards. It is proposed that they are involved in the creation of local carers' strategies and that those strategies are reviewed every three years. It is also proposed that local authorities with Health Boards take necessary steps to ensure the adequate provision of appropriate services to meet the needs of carers and young carers in their area.

• Identification - Identifying carers and young carers is important to allow them to access a carer's assessment and support. The consultation proposes that no legislative measures are introduced in relation to the identification of carers and that improvements are continued through existing and forthcoming policies and initiatives, including the work of NHS Education Scotland (NES) and the Social Services Scotland Council (SSSC) around furthering the skills of the health and social care workforce on identification and support for carers and young carers.

Sectors or groups affected

The main sectors or groups affected by these legislative proposals are likely to be:

The public sector

The public sector organisations that will be impacted by the Bill will be the same as the list detailed under Option 1.

Private sector

The private sector organisations that will be impacted by the Bill will be the same as the list detailed under Option 1.

Third Sector

The proposals within the consultation document will cover a range of issues that will affect Third Sector organisations that provide support to carers and the individuals they care for.

Service Users

The proposed legislative measures being considered through the consultation process should have a positive impact on service users. By improving the support for their carers, who should be able to continue in their caring relationship, this will reduce and/or delay the likelihood of admission to hospital and residential care.

Carers

The proposed legislation will positively impact on carers. The proposals aim to improve outcomes for all carers and young carers by addressing the continuum of the caring journey.

Benefits

• By ensuring that carers are supported to continue in their caring roles, we can minimise the risk of their relationship with the individuals they care for deteriorating to crisis level. This has cost benefits as the cost of supporting carers at appropriate times, with a focus of prevention, during their caring journey will often be less than managing at crisis points. Costs versus benefits will be developed further as part of the Financial Memorandum accompanying a resultant Bill.

• The proposed legislation would set a minimum level of support that all carers in Scotland should expect to receive and will bring more transparency and consistency across local authority areas.

• The consultation's proposal to remove the regular and substantial test for the carer's assessment (carers support plan) will allow all individuals who carry out unpaid caring to be assessed for possible support.

Costs

• A full consideration of costs will be carried out as we prepare the Financial Memorandum to accompany the resultant Bill. However, cost implications may include:
  • Costs to local authorities resulting from the requirement to provide information and advice.
  • Legislation to introduce a duty for carers to receive support would have financial implications for local authorities and possibly NHS Boards and the Third Sector.
  • The possible removal of the regular and substantial test for carers receiving an assessment will likely lead to an increase in the overall number of assessments being carried out by local authorities or delegated third parties. However, the possibility of a gradient of assessment may reduce this number and/or the detail required for each assessment.

Scottish Firms Impact Test

Throughout the formal consultation period, the Bill Team will meet with a range of stakeholders, including organisations, businesses and users who are likely to be affected by any proposed legislation. The outcome of these meetings will be analysed and presented as part of the full BRIA.

• Competition Assessment
  The proposal that legislative measures are introduced that will see local authorities with Health Boards take steps, as far as is practically reasonable, to ensure that sufficient support services are available for meeting the needs for support to carers and young carers in their area would have financial implications for local authorities and Health Boards. The consultation will indicate whether stakeholders feel that this will have an impact on competition within the current market.

• Test run of business forms
  No new business forms will be brought in with the implementation of the proposed legislation.

Legal Aid Impact Test

As part of the Bill development process we will liaise with the Scottish Government Legal Systems Division to gauge whether any proposed legislation will affect Legal Aid. This will be detailed within the full BRIA.

Enforcement, sanctions and monitoring

The enforcement, sanctioning for non-compliance and monitoring of any proposed legislation will be detailed within the full BRIA.

Implementation and delivery plan

January - April 2014

• Launch of formal consultation.
• Publish of partial BRIA and EQIA with consultation document
• Series of events and meetings with relevant stakeholders, including businesses.

We currently aim to introduce the Bill to Parliament in 2015.

Post-implementation review

Any review process will be considered as the legislation is developed.

Summary and recommendation

The Scottish Government is committed to supporting carers in their roles and allowing them to continue to lead a life alongside their caring responsibilities. We want to ensure that carers are provided with adequate support, at the right time and that meets their own individual needs.

This cannot be achieved through one individual policy or initiative and legislation will play an important role in increasing the speed at which we bring about change in culture and services.

• Summary costs and benefits table
  This information will be detailed in the full BRIA and financial memorandum that accompanies the Bill.

Declaration and publication

I have read the partial impact assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options.

Signed:

Date: 16 January 2014

Michael Matheson, Minister for Public Health

Scottish Government Contact point: carersandyoungcarerspolicy@scotland.gsi.gov.uk