Carers Legislation - Analysis of Consultation Responses

10 Carer and Cared-For Person(s) in Different Local Authority Areas

In summary,

Lead local authority

• Views on the lead local authority for undertaking the Carer's Support Plan and agreeing support to the carer where the carer lives in a different local authority area to the cared-for person were polarised. Broadly equal numbers of respondents supported the lead authority being the authority where the carer lives or the authority where the cared-for person lives. A higher number of local authorities were supportive of the latter (where the cared-for person lives).
• There were some calls for collaboration between local authorities in order to ensure the process is person-centred and flexible to meet the needs of carers.
• There were some requests for guidance and support to ensure consistency of quality.
• A small number of respondents commented on the Scottish Government's Ordinary Residence (OR) Guidance and that any guidance developed should take account of this.

Costs of support

• Again, views were split as to which local authority should cover the costs of support to the carer. As with the previous question, there were also some requests for collaboration between local authorities and for costs to be shared.
• Once again, there were some requests for guidance.
• There were some references to OR guidance.
• There were some concerns that there could be different thresholds for accessing services in different local authorities.

Guidance for local authorities

• Almost all respondents answering this question supported the Scottish Government and COSLA producing guidance for local authorities.
• There were some requests that any guidance should be produced in conjunction with other organisations such as carer organisations, third sector organisations, service providers and also carers themselves.
• A small number of respondents referred to the Rules of Ordinary Residence and noted that this needs to be referred to, or that the OR guidance needs to be amended and updated to reflect carers' support considerations.
• There were also a small number of requests for a review period to ensure that any guidance developed is effective in establishing consistent and fair practice.

10.1 The consultation paper noted there will be in the future issues in relation to local authority responsibility for carrying out a Carer's Support Plan, providing support to carers and covering the cost of support where the carer and cared-for person live in different local authority areas.

10.2 At present, it is possible for a carer living in one area looking after a person living in another area to request a carer's assessment of the local authority where they themselves live. This local authority is not under any obligation to carry out the assessment because it has no power or duty to provide community care services to the cared-for person in question. At present, the way in which local authorities deal with these types of requests - which the Scottish Government understands are relatively small in number - varies across the country, and from case to case.

LEAD LOCAL AUTHORITY

10.3 The consultation paper noted that the issue of which local authority should take the lead for undertaking the Carer's Support Plan and providing support is likely to become more of an issue in the future. If the Scottish Government places a duty upon local authorities to offer a Carer's Support Plan, it will be necessary to have clarity over the local authority on which this duty will fall. Question 25 asked:

Question 25: What are the views of respondents on the lead local authority for undertaking the Carer's Support Plan and agreeing support to the carer where the carer lives in a different local authority area to the cared-for person(s)?

10.4 One hundred and fourteen respondents, across all sub-groups, commented on this question. A small number simply welcomed the intention to address this issue. Views as to whether the lead local authority for undertaking the Carer's Support Plan should be the authority where the carer resides or the authority where the cared-for person resides, were polarised. Thirty-two respondents felt the lead local authority should be the one where the carer resides, in comparison to 34 who felt this should be the authority where the cared-for person resides. For both of these options, there was support across all respondent sub-groups, although more local authorities supported the lead local authority being where the cared-for person resides. There was divided opinion among the carer/ user support organisations with similar numbers supporting both of the given options and also collaboration between local authorities.

10.5 Among the 32 respondents with a preference for the lead authority to be where the carer resides, just over half were from the from carer/ user support group. Few local authorities supported this option. Of the respondents providing reasons for their preference, key benefits were that the carer can access support and services locally or that the local authority will know what services and support are available to carers.

10.6 Among the 34 respondents with a preference for the lead local authority to be where the cared-for person resides, support came mainly from the local authority, carer/ user support and individual groups. A number of benefits were cited to this approach and these included:

• The local authority will have knowledge of local services and what is available.
• This makes best use of local resources and support networks.
• It identifies who the carers are and their needs.

10.7 A minority of respondents did not provide a preference for the lead authority and supported collaboration between both local authorities, with the Carer's Support Plan being conducted jointly to help achieve the best outcomes for both the carer and the cared-for individual. Support for this option was highest among carer/ user support organisations, with only two local authorities commenting on collaboration. One local authority which was supportive of the cared-for person's local authority being the lead authority for undertaking the Carer's Support Plan, also commented that this will only work if there is close collaboration between the two authorities. Another local authority noted that this is a difficult issue and that it should be led by the individual's needs, albeit that local authorities and health boards need to work together to look at cross-border challenges.

10.8 Several respondents noted that whoever is the lead authority, there is a need for an explicit and transparent process for deciding who will be the lead local authority, with some requests for flexibility for local authorities to work closely together and ensure there are reciprocal agreements in place. There were also comments from a few other respondents on the need for Carer Support Plans to be person-centred and flexible so that the needs of the carer are paramount in any decisions. Indeed, a small number of carer/ user support organisations noted that this should not be an issue if there is portability of assessment between local authority areas.

10.9 A number of respondents also requested national guidance and support to ensure consistency of quality in taking forward the Carer's Support Plan across all local authorities, and clarity over individual responsibilities. Requests included the provision of best practice examples and a national eligibility framework; one local authority commented that a framework would help to address cross-border issues within Scotland.

10.10 There were also a number of comments, mainly from local authorities, on the need to make reference to the Scottish Government's Ordinary Residence Guidance. The key point raised was that there needs to be reference to the Ordinary Residence Guidance, or that whatever decision is made as to the lead authority, this needs to be consistent with Ordinary Residence Guidance. One local authority referred to SDS regulations and commented:

"This is an issue and is considered by SDS regulations around portability of support plans. The Ordinary Residence guidelines impacts on this and needs further discussion and clarification."

10.11 A small number of carer/ user support organisations who had consulted with members on this question noted that their members had divided opinions as to which option would be best.

COSTS OF SUPPORT

10.12 Another issue for consideration is that of which authority covers the cost of undertaking the Carer's Support Plan and providing support. It has been suggested that the authority in which the carer lives carries out the Carer's Support Plan and provides support, and that the local authority area where the cared-for person resides should reimburse the costs to the carer's local authority.

10.13 The Scottish Government is keen to understand views before taking any decision on the way forward in terms of legislative provisions or guidance. The consultation paper noted there are also similar issues when the carer or cared-for person lives in Scotland and the other family member lives elsewhere in the UK.

Question 26: What are the views of respondents on which local authority should cover the costs of support to the carer in these circumstances?

10.14 Ninety-seven respondents, across all sub-groups, commented on this question, many of whom referred to their response at Question 25. Although many respondents echoed the response they had given at Question 25, views on which local authority should cover the costs of support to the carer were less polarised, with 35 suggesting it should be the authority which supports the cared-for person, and 26 suggesting it should be the authority where the carer resides. For many, although not all of these respondents, preferences for which local authority should be responsible for covering the costs of support to the carer was the same as the answer given at Question 25.

10.15 For both of these options, there was support across all respondent sub-groups. Greatest levels of support for the authority which supports the cared-for person came from carer/ user support organisations, local authorities and individuals. Support for the local authority where the carer resides came primarily from carer/ user support organisations, with much less support from respondents in all other sub-groups.

10.16 That said, there were a few provisos, with a small number of respondents who were supportive of the authority where the carer resides, commenting that the costs of short breaks/ respite should be paid for by the local authority where the cared-for person resides. A carer/ user support organisation noted concerns of different eligibility criteria in different authorities and another noted the need for both authorities to work closely together.

10.17 A small number of respondents commented that the local authority covering the costs of support to the carer should be the local authority that carried out the Carers Assessment.

10.18 As at Question 25, there was also support, albeit at a lower level, for collaboration across local authorities or for the costs to be borne jointly. These comments came primarily from respondents who were carer/ user organisations. A small number of respondents, mostly carer/ user support organisations also commented that the needs of the carer should be paramount and that their needs should determine which authority should cover the costs of support to carers.

10.19 A small number of respondents also noted the need for clear guidance or for guidance providing clarity on funding issues or how to recover costs between authorities. One CHCP commented that guidance needs to be linked to current arrangements, for example, within older peoples' services.

10.20 A few respondents, mostly local authorities, commented on the issue of Ordinary Residence (OR). A number of key points were made, which included:

• Issues raised under Ordinary Residence (OR) Rules need to be considered.
• Any legislative changes need to be consistent with OR guidance.
• OR guidance should be updated to reflect Carers' support considerations. One carer/ user support organisation also noted that OR Guidance should include reference to the Social Work (Scotland) Act.
• There needs to be further discussion and clarification around how the Ordinary Residence guidelines impact on this decision.

10.21 One local authority commented that the rules of Ordinary Residence and changes to the roles of Responsible Authorities within the Children's Hearings (Scotland) Act 2011 contain adequate provision to guide local authorities when this is an issue for a young carer specifically.

10.22 A small number of carer/ user support organisations which had consulted with their members noted that views were split in terms of which local authority should cover the costs of support to the carer.

10.23 There were also a small number of concerns noted by respondents, mainly in reference to cross-border issues and the different thresholds for accessing services, although small numbers of respondents also had concerns over the resources needed for this, communication between authorities and the timescales for implementation.

GUIDANCE FOR LOCAL AUTHORITIES

10.24 The final question in the consultation paper asked,

Question 27: Should the Scottish Government with COSLA produce guidance for local authorities?

Table 10.1: Question 27

Respondent group	Yes	No	Other	Nil response
Individuals (32)	26	1	-	5
Carer/ User support (81)	46	1	-	34
Local authority (24)	20	2	-	2
Health (13)	9	-	-	4
CHCP (6)	5	1	-	-
Public body (3)	1	-	-	2
Professional body (3)	-	-	-	3
Representative body (3)	2	-	-	1
TOTAL (165)	109	5	-	51

10.25 A majority (109) of respondents said yes while only five said no. Many of those who answered 'yes' did not provide any further reasons. Seventy-two respondents provided further commentary to this question.

10.26 Of those answering 'yes' to this question and providing further commentary, a key theme was that guidance for local authorities would bring about consistency and clarification across all local authorities.

10.27 A small number of respondents wishing to see guidance developed, noted that this should also involve various other types of organisation. These included third sector organisations, carer organisations, service providers and carers themselves. One local authority respondent also commented that the working party involved in developing this guidance should ensure representation for all appropriate issues such as SDS or GIRFEC. A CHCP also commented on the need to ensure that any guidance developed is consistent with other relevant legislation. Four respondents - all local authorities - referred to the Rules of Ordinary Residency (OR) and noted that this needs to be referred to or that the OR guidance needs to be amended and updated to reflect carers' support considerations.

10.28 A few respondents commented that guidance in itself is not enough to ensure consistency across all local authorities but that this should also be supported by legislation. A few respondents also suggested the need to build in a period of review to ensure that any guidance developed is effective in establishing consistent and fair practice or that there should be an independent watchdog to ensure this is fairly and consistently applied.