Carers Legislation - Analysis of Consultation Responses

5 Support to Carers (Other than Information and Advice)

In summary,

A duty to support carers and young carers

• A majority of respondents supported the proposal to introduce a duty to support carers and young carers, linked to an eligibility framework. Greatest levels of support came from carer/ user support organisations and individuals. The views of local authorities were relatively polarised, with almost equal numbers in favour and against.
• There were requests to develop the framework in consultation with stakeholders.
• There were some concerns that if thresholds are set too high, some carers might not be able to access support. In line with this, there were requests for the provision of preventative support; and for discretionary power to be retained to support carers not meeting the eligibility criteria.
• There were some calls for clear timescales to be outlined; as well as concerns over the resources that would be required for the introduction of this duty.
• A small number of respondents felt legislation elsewhere supports carers and young carers (for example Self-directed Support (SDS) or Getting it Right for Every Child (GIRFEC)); which in turn negates the need for an additional duty.

Existing discretionary power to support carers and young carers

• There was majority support not to retain the existing discretionary power to support carers and young carers; primarily from carer/ user support organisations and individuals. Support for retaining the existing discretionary power came primarily from local authorities and CHCPs.
• As noted at the previous question, a number of respondents wanted to see the discretionary power retained as well as the introduction of a duty to support carers and young carers, linked to an eligibility framework, so that all carers would have access to the support they need, regardless of whether they meet eligibility criteria or not.
• For many of those in favour of retaining the status quo, a key factor is that discretionary power allows for the provision of flexible support. Another key factor is that other legislation already exists which provides support to carers and young carers.
• Again, there were some concerns over resources to provide support to carers and young carers.

Short breaks

• There was majority support for the introduction of a duty to provide short breaks. Greatest levels of support came from carer/ user support organisations and individuals. Least support came from local authorities, health organisations and CHCPs.
• A number of respondents in favour of the introduction of this duty noted that current provision across Scotland is inconsistent, that there is a lack of information on what is available to carers or that short breaks are essential for carers to recharge their batteries.
• A key theme was that short breaks need to be flexible and offer a range of opportunities to meet carer needs.
• A key advantage attributed to short breaks is that they put an emphasis on prevention.
• There were some concerns over the resources that would be needed to support this duty, with some suggestions that the third sector offers a more cost effective route to the provision of short breaks than do local authorities.
• There were some requests for greater clarity over short breaks and for the provision of guidance and best practice.
• There were requests for local authorities to issue a Short Breaks Statement outlining what is available to carers and young carers.
• For those opposed to the introduction of this duty, key reasons were that there is already a range of short breaks in place for carers and young carers; that the provision of short breaks should be discretionary; that short breaks are only one of a range of supports available and that they should not be awarded separate status; or that carers can already seek direct payments under current legislation.

5.1 The consultation paper explained that currently there are no provisions within social care law to directly support carers. Since 1 April 2014, with the introduction of the Social Care (Self-directed Support) (Scotland) Act, local authorities have had the discretionary power to support carers.

5.2 Another option being considered by the Scottish Government is to repeal the power to support carers and introduce a duty to support them. However, realistically it would not be possible to support all carers, so the duty would need to be linked to an eligibility framework. This would mean that local authorities would be required to support carers on a consistent basis across Scotland but there would be an allowance for local variations in the type of support available and in accordance with the eligibility framework. This framework would be set out in regulations or guidance rather than in primary legislation.

A DUTY TO SUPPORT CARERS AND YOUNG CARERS

5.3 The first question in this chapter of the consultation paper asked,

Question 11: Should we introduce a duty to support carers and young carers, linked to an eligibility framework?

5.4 As shown in table 5.1, a large number of those who replied said yes (119). Greatest levels of support came from carer/ user support organisations and individuals. However, the views of local authorities were evenly split, with 12 in favour of this and 12 against. Twenty-three respondents, mainly from local authorities and CHCPs, said no. One respondent from the health group said yes and no.

Table 5.1: Question 11

Respondent group	Yes	No	Other	Nil response
Individuals (32)	28	-	-	4
Carer/ User support (81)	72	2		7
Local authority (24)	12	12	-	-
Health (13)	3	3	1	6
CHCP (6)	1	5	-	-
Public body (3)	1	-	-	2
Professional body (3)	1	-	-	2
Representative body (3)	1	1	-	1
TOTAL (165)	119	23	1	22

5.5 One hundred and fourteen respondents commented on this question. A number of respondents outlined the advantages of introducing a duty to support carers and young carers, linked to an eligibility framework. A key advantage was that this will create a consistent approach across Scotland and improve access to services. A small number of respondents, mostly carer/ user support organisations, noted that this will provide clarity or transparency for carers on their entitlements, and allow provider organisations to manage delivery of this support. In line with this, there was support for any eligibility criteria to be set nationally to avoid any inconsistency in the provision of support services, although there were a small number of concerns about the provision of services in more rural areas or access to services by individuals within minority groups such as ethnic minorities.

5.6 While there was support for this proposal, a large number of respondents noted a number of issues that need to be taken into account in developing eligibility criteria. One issue, cited primarily by carer/ user support organisations, was that there is a need to develop the framework in consultation with other stakeholders; including Health Boards, local authorities, third sector organisations and carers.

5.7 Another key theme, and linked to the setting of eligibility criteria, is the need to take into account the provision of preventative support to carers so that they do not reach crisis point before support is available. There were a small number of requests for more information on the eligibility criteria because of concerns that the thresholds set may be too high for some carers to access support, and that low level needs would not be met. Because of concerns over thresholds for any eligibility criteria, there were some calls for local authorities to retain the discretionary power to support carers who do not meet the eligibility criteria.

5.8 A number of respondents also noted the need to consider a wide range of factors such as a carer's health, their employment status, other responsibilities they may have and so on. This was mentioned primarily by carer/ user support organisations.

5.9 A small number of respondents, primarily in carer/ user support organisations also commented that any eligibility criteria that are developed need to be linked to the needs of the cared-for person, although a few other respondents commented that this needs to be specific to the needs of the carer.

5.10 Putting in place an eligibility framework was in itself not considered to be enough by some respondents, who also called for clear timescales to be outlined for access to support, and for allowing access to preventative or anticipatory support. Where a timescale was specified, most respondents noted that up to 12 weeks would be acceptable.

5.11 Respondents across all sub-groups had concerns about the resources that would be needed for successful implementation of an eligibility framework.

5.12 A small number of respondents commented that there is legislation elsewhere which currently supports or will support carers. For example, that under the Children and Young People Act there will be a duty to support young people, including young carers, and that the carers' legislation needs to include guidance outlining the services and support local authorities should have in place to fulfil their duty to support young carers.

5.13 There were also concerns from a small number of respondents that this would effectively reintroduce the 'Substantial and Regular' test.

5.14 A small number of respondents who were positive about introducing a duty to support carers and young carers, linked to an eligibility framework within carer/ user support organisations and local authorities commented specifically on young carers. Most of their comments noted that that this needs to be consistent to fit with Getting it Right for Every Child (GIRFEC).

5.15 We have already noted that opposition for this proposal came primarily from local authorities and CHCPs. Some of these respondents had concerns over a lack of clarity in the information provided; while others had concerns over the resources that would be needed to implement this. One local authority noted that it will not be possible or realistic for local authorities to support all carers but that a duty linked to eligibility criteria would allow for fair access to services.

5.16 However, the key concern of those in opposition to this proposal related to queries over the need to introduce further duties. These respondents felt that the needs of young carers are dealt with by GIRFEC and/ or that new powers under SDS and the Children and Young People Act are sufficient.

5.17 Two local authorities felt that introduction of a duty to support carers and young carers, linked to an eligibility framework, would mean that carers are treated as recipients of care, rather than equal partners. A small number of respondents also felt that this would lead to assessment and 'gate-keeping of services, which was not felt to be useful in implementing a preventative approach.

EXISTING DISCRETIONARY POWER TO SUPPORT CARERS AND YOUNG CARERS

5.18 The next question asked respondents to consider whether the status quo should be maintained by retaining the discretionary power.

Question 12: Alternatively, should we retain the existing discretionary power to support carers and young carers?

Table 5.2: Question 12

Respondent group	Yes	No	Other	Nil response
Individuals (32)	2	19	-	11
Carer/ User support (81)	9	34	-	38
Local authority (24)	14	9	-	1
Health (13)	3	4	-	6
CHCP (6)	6	-	-	-
Public body (3)	-	1	-	2
Professional body (3)	-	-	-	3
Representative body (3)	1	1	-	1
TOTAL (165)	35	68	-	62

5.19 The majority of those who replied said no (68) and these were primarily within the carer/ user support organisation category and individuals. Of the 35 saying yes, support came primarily from local authorities, carer/ user support organisations and CHCPs. While there was a degree of support for this proposal from local authorities, a significant number did not support this, with 14 saying 'yes' and nine saying 'no'.

5.20 Not surprisingly, many of those who responded gave the opposite response to that given at the previous question; i.e. many of those who felt there should be a duty to support carers and young carers, linked to an eligibility framework (Question 11), did not support retaining the status quo. That said, we have already noted in relation to the previous question that a number of respondents wanted to see a discretionary power retained as well as introducing a duty to support carers and young carers, linked to an eligibility framework; they felt this would not allow any carers to be denied access to the support they require.

5.21 Fifty-seven respondents commented on this question. Many gave relatively brief responses, reiterating points raised in the previous question.

5.22 For those in favour of retaining the status quo, a key issue was that discretionary power allows for the provision of flexible support; which can be inclusive of carers and young carers who do not have a Carer's Support Plan or a Child's Plan. A number of these respondents also noted that Self-directed Support and/ or the Children and Young People Bill will allow for the necessary support to be provided.

5.23 One carer/ user support organisation noted that statutory power should underpin this process. Another that substantive guidance should be provided.

5.24 For those respondents supporting the introduction of a duty, a number noted that retaining discretionary power will lead to inequalities for carers in accessing services or noted that there is currently a wide variation in the support offered across Scottish local authorities. A few respondents noted that if a new duty is introduced, then discretionary power should also remain so that support can still be offered to carers who do not meet the necessary eligibility criteria.

SHORT BREAKS

5.25 One intervention offered to support carers and young carers is short breaks. A short break can be any provision which supports carers and young carers to have time out from caring in order to recharge their batteries. So, a short break can include holidays, time for participation in leisure activities, time to meet up with friends or breaks away with the cared-for individual. There has been some progress in Scotland to offer short breaks to carers, although provision is inconsistent across the country and among different care groups.

5.26 The consultation paper noted that the Scottish Government is considering introducing a duty for local authorities to provide and promote short breaks and invited respondents to give their views on this. Question 13 asked:

Question 13: Should we introduce a duty to provide short breaks?

Table 5.3: Question 13

Respondent group	Yes	No	Other	Nil response
Individuals (32)	23	4	-	5
Carer/ User support (81)	69	3	-	9
Local authority (24)	5	19	-	-
Health (13)	4	5	-	4
CHCP (6)	-	6	-	-
Public body (3)	-	-	-	3
Professional body (3)	1	-	-	2
Representative body (3)	1	2	-	-
TOTAL (165)	103	39	-	23

5.27 Many of those who replied said yes (103) while 39 said no. Of those saying no, almost half came from local authorities (and represented the majority of those responding to this consultation), all CHCPs and more than half the health organisations responding to this question.

5.28 This question received a large number of additional comments, with 128 respondents commenting further. A small number, mostly carer/ user organisations, echoed the consultation paper and commented that current provision is inconsistent across Scotland or that there is a lack of information in general over what is available to carers. A small number, mostly but not exclusively local authorities, noted that they already offer short breaks to carers, with one commenting that this is provided in conjunction with third sector organisations.

5.29 A key theme, cited by almost half of these respondents and across all sub-groups was that short breaks are essential for carers to recharge their batteries or that they are a highly valued intervention to support both carers and the cared-for individual. Two local authorities noted evidence they had to show that short breaks offer carers support they value and produce positive outcomes. As noted by one carer/ user support organisation:

"Short breaks are a vital, even indispensable, source of support for a significant number of carers to enable them to sustain their caring roles. Enshrining recognition of this fact in legislation would send an important signal to carers in need of such breaks that their role is valued and their need is recognised. It would also mean that the enhancing of the status of carers in the move to be treated as equal partners in the provision of care."

5.30 Another key theme, cited by around a quarter of these respondents across most sub-groups, was that short breaks need to be flexible and offer a range of different opportunities to meet the needs of carers. For example, to some carers a short break may be a few days away somewhere; for others, it may mean an opportunity to undertake leisure activities such as a visit to the cinema or socialising with friends.

5.31 Another advantage noted by a small number of respondents was that the availability of short breaks puts an emphasis on prevention so that carers can avoid reaching a crisis point.

5.32 While many respondents were positive about the provision of short breaks, a significant minority acknowledged the issue of resources and noted that there will need to be sufficient resources made available for this to be successful. A few of these respondents commented that it will be difficult for local authorities to support this financially or that the introduction of this duty is unrealistic because of its impact on budgets. Not surprisingly, local authorities noted this could place a significant financial burden upon them. That said, there were a number of suggestions that the provision of short breaks could be devolved to the third sector; this would be a more cost effective approach and offer a better route for carers as they would be dealing directly with carer organisations with a good understanding of their role. For example, one carer/ user organisation suggested that local authorities should be investing in social enterprise and community-based short break solutions. There were a small number of comments that in the long term the provision of short breaks would make financial savings that would more than cover the cost of providing these as short breaks help to keep cared-for individuals within the family home, rather than putting more pressure on full time care in residential services.

5.33 There were some calls for greater clarity over the definition of short breaks, with recommendations for the development of guidance and best practice in order to promote consistency around the provision of short breaks. Allied to this there were a number of requests for a Short Breaks Statement from local authorities. Such a statement would provide information on what is available and how to access this.

5.34 There were a small number of concerns, primarily from carer/ user organisations, about the availability of short breaks that are appropriate and accessible to all carers. For example, one commented on a lack of culturally appropriate short break services for BME communities; another on the need for appropriate services for gypsy travellers; another on carers living in remote and rural areas. Another commented,

"Short Breaks Statements will be a vital tool to help carers understand what short breaks are available in their area, and which breaks they may be entitled to."

5.35 Across the organisations opposed to this duty, three key themes emerged. First, a number noted that they already provide a range of mechanisms for providing short breaks and there was recognition of the importance of these to carers. However, the second key theme and primarily cited by respondents within local authorities, health boards and CHCPs was that while they recognise the value of short breaks, they do not support a duty and that the provision of short breaks should be discretionary. These respondents noted that they offer a range of different supports to carers, of which short breaks are only one aspect and that they should not be awarded separate status. As one health board commented:

"This would not be helpful in our endeavour to provide carers with the outcomes which suit them. A duty will inevitably lead to a definition of respite/ short break that is rigid. Our experience is that carers, if provided with some resource and no red tape, will be creative and very innovative in accessing the means to improve their life balance through a short break which may be for example be the opportunity to purchase equipment to provide an outlet (eg musical instrument, bicycle, garden seat, shed) that was not open to them before."

5.36 The third key theme emerging was that carers can already seek direct payments under current legislation and utilise options under the provisions of the Self-directed Support Act (SDS). These comments came primarily from local authorities and CHCPs. As one CHCP noted,

"As Self Directed Supports develop there will be increasing means to provide short breaks which may not come under such a clearly defined category."

5.37 In relation to this last point, a few respondents within local authorities and CHCPs commented that new legislation would benefit from further consideration of how this duty would align with SDS. A small number also commented that they would like this to be a discretionary power rather than a duty, with some concerns that this could create expectations that cannot be met by local authorities. A representative body commented:

"[We are] of the view that this would lead to a service-led approach and undermine actions to shift professional thinking towards an outcomes-led approach."