Carers (Scotland) Act 2016: children's rights and wellbeing impact assessment

Carers (Scotland) Act 2016 Childrens Rights and Wellbeing Impact Assessment

Title of Policy	Carers (Scotland) Act 2016 ("the Act")
Summary of aims and desired outcomes of Policy	It is the intention of the Scottish Government that Scotland's estimated 745,000 adult carers and 44,000 young carers [1] [2] should be better supported on a more consistent basis so that they can continue to care, if they so wish, in good health and to have a life alongside caring. In relation to young carers, the intention is similar to that for adult carers but that young carers should have a childhood similar to their non-carer peers. The Act will realise this ambition by ensuring better and more consistent support for carers and young carers so that they can continue to care, if they so wish, in better health and to have a life alongside caring.
Directors: Division: Team	Directorate for Health and Social Care Integration: Care, Support and Rights Division: Carers Policy Branch.

Executive summary

1. The aim of this Child Rights and Wellbeing Impact Assessment ( CRWIA) is to identify, research, analyse and record the anticipated impact of the Act on children's human rights and wellbeing in Scotland.

2. The CRWIA has been informed by a range of evidence. All provisions of the Act have been considered against the available evidence and assessed under:

• the general principles and 41 articles under Part 1 of the United Nations Convention on the Rights of the Child. These articles set out the civil, political, economic, social and cultural rights that all children everywhere are entitled to;
• the three Optional Protocols to the United Nations Convention on the Rights of the Child; and
• the eight wellbeing indicators developed as part of the Scottish Government's Getting It Right For Every Child approach. These indicators are: Safe, Healthy, Achieving, Nurtured, Active, Respected, Responsible, Included.

3. The original CRWIA that was published for the introduction of the Carers (Scotland) Bill can be accessed at:

4. This impact assessment is one of a package to accompany the Act. The others are: Business and Regulatory Impact Assessment ( BRIA); Equality Impact Assessment ( EQIA); and Privacy Impact Assessment ( PIA).

5. The Scottish Government has decided to use some of the regulation-making powers in the Act. Where regulation-making powers are not being used the Government may consider these, where appropriate, in the future. Whilst the Act comes into force on 1 ^st April 2018, certain provisions and regulations have been commenced earlier to enable local authorities to fulfil their duties under the Act. Commencement Orders have been laid in order to enable this to happen.

6. An Implementation Steering Group ( ISG) has been established to help inform successful implementation of the Act and to provide views on draft regulations and guidance. Several other working groups have also been established to help inform specific sections of the Act. Further information about membership of the ISG and working groups are described below at Who was involved in this CRWIA?

Background

Policy Aims

7. It is the intention of the Scottish Government that Scotland's 745,000 adult carers and 44,000 young carers should be better supported on a more consistent basis so that they can continue to care if they so wish, in good health and to have a life alongside caring. In relation to young carers, the intention is similar to that for adult carers, but that young carers should have a childhood similar to their non-carer peers. The objective of the Act is to make real this ambition by furthering the rights of both adult and young carers.

8. The Scottish Government is supporting unpaid adult and young carers through a range of policies as set out in their manifesto and Programme for Government. From 2007/08 to 2016/17 the Scottish Government has invested nearly £136 million towards a range of programmes and initiatives to support these policies.

9. The case for the Act is set out fully in the Policy Memorandum published alongside the Carers Bill ^[3] on its introduction to the Scottish Parliament on 9 ^th March 2015.

10. The Act provisions closely align with the Healthier, Wealthier and Fairer Strategic Objectives, but also cut across the smarter objective.

11. The Act contributes to the following National Outcomes:

• We live longer, healthier lives;
• We have tackled the significant inequalities in Scottish society;
• We live in well-designed, sustainable places where we are able to access the amenities and services we need;
• Our children have the best start in life and are ready to succeed
• We have strong, resilient and supportive communities where people take responsibility for their own actions; and
• Our public services are high quality, continually improving, efficient and responsive to local people's needs.

Who was involved in this CRWIA?

12. The implementation of the Act has involved colleagues from within the Scottish Government and a range of external stakeholders.

13. The ISG membership includes carers, carer representatives, local authorities, health boards, COSLA, and other interests including: Care Inspectorate; Healthcare Improvement Scotland ( HIS); and Royal College of General Practitioners Scotland.

14. Stakeholders have had the opportunity to express views about the Act provisions and draft regulations. This includes via:

• Implementation Steering Group;
• Working Groups on specific provisions;
• Monitoring and evaluation Group;
• Local Carer Leads Group;
• Stakeholder Development Day and other events;
• Formal public consultations; and
• Informal consultations.

15. Early consultations were held with the following areas of the Scottish Government with policy responsibility for children and young people:

• Children's Rights and Wellbeing
• Looked After Children Unit
• Kinship Care
• Equalities Unit

16. The Scottish Government, in partnership with COSLA, have established pilots in nine integration authority areas to test some of the Act provisions before the Act comes into force on 1 April 2018. These pilots operated from April to October 2017. An evaluation report was produced which was based on the evidence and data gathered, helping to inform the implementation of the Act, and to encourage sharing of good practice between Health and Social Care Partnerships ( HSPCs).

17. Whilst all of the provisions tested are potentially relevant to children and young people, two of the pilots focussed on testing of the new young carer statement ( YCS).

18. The Scottish Government also invited health boards to submit proposals to test the provision on carer involvement in the hospital discharge of cared-for persons. These pilots have now concluded. Monitoring and evaluation forms to assist with evidence and data gathering have been issued, and an evaluation report will be produced with a view to informing the implementation of the Act.

19. All Pilot areas were supported by the Scottish Government. The Scottish Social Services Council ( SSSC) and NHS Education for Scotland ( NES) also supported the relevant pilots.

20. Additionally, the Scottish Government has issued a readiness toolkit in June and November 2017. This is a voluntary framework for: integration authorities; local authorities where children's services aren't delegated; ADES; COSLA and Social Work Scotland to self-evaluate and self-assess local activity and progress which supports implementation of the Act. The aim of the toolkit is to:

• stimulate strategic discussions, internal challenge and a review of existing plans;
• map and measure progress leading to commencement;
• identify areas where more work needs to be done;
• identify opportunities for sharing learning with other integration authorities; and
• form the basis for further discussion with Chief Officers, Directors, health and social care leads, COSLA and Scottish Government.

Scope of this CRWIA

21. Consideration has been given to whether any of the Act's provisions could be thought to breach any of the restrictions set out in section 29 of the Scotland Act 1998, subsection (2). This includes consideration as to whether the provisions are compatible with the European Convention of Human Rights. After due consideration it has been concluded that none of the Act's provisions are outside the legislative competence of the Scottish Parliament. For completeness, Annex A describes the impact of the Act's provisions on children and young people, and compliance with United Nations Convention on the Rights of the Child ( UNCRC) ^[4] requirements.

22. The Act may directly affect the estimated 44,000 children and young people who are young carers in Scotland. Children and young people who have health problems or a disability could also be indirectly affected as their parents or guardian might benefit from the provisions of the Act within their role as carers.

23. This CRWIA should be read in conjunction with the other impact assessments conducted for the Act.

24. The scope of this CRWIA is focused on the possible impacts as a result of implementing the provisions in the Act. The previous version of the CRWIA describes all of the provisions which may have an impact on children and young people. For the purposes of this review and updated CRWIA the Regulations (and associated provisions) which have already been laid, and the remaining Regulations laid in February 2018 are included.

Commencement regulations

25. The Carers (Scotland) Act 2016 (Commencement No. 2 and savings provision) Regulations 2017 were laid before Parliament on 17 ^th May 2017. This describes the provisions of the Act that will come into force on 31 ^st May 2017, and on 1 ^st October 2017.

Early commencement of provisions

26. The main provisions of the Act come into force on 1 ^st April 2018. In order for any duties to operate, local eligibility criteria must be in place. To allow sufficient time to enable local eligibility criteria to be published, the order set out a date for commencement of 1 ^st October 2017 for section 21 and other associated provisions. It also set out a commencement date of 31 ^st May 2017 for a number of provisions under which Scottish Ministers are making regulations, including those associated with the setting of local eligibility criteria.

Waiving of charges

27. The Carers (Waiving of Charges for Support) (Scotland) Regulations 2014 require local authorities to waive charges where services are provided to adult carers under section 3(4) of the Social Care (Self-directed Support) (Scotland) Act 2013.

28. Scottish Ministers have amended these regulations to maintain this position so that support for carers which will be provided under the Carers Act cannot be charged from 1 ^st April 2018.

29. To avoid leaving a period where there is no legal requirement for waiving of charges, the commencement order brought section 26 of the Act into force on the 31 ^st May 2017 for the purpose of enabling regulations to be made, but retains the requirement for waiving of charges for services provided to adult carers under section 3(4) of the 2013 Act.

30. The purpose of the commencement order was to enable certain provisions to commence earlier than 1 ^st April 2018, in order for local authorities and other delivery partners to prepare and manage their business, and carry out their duties as prescribed in the Act. The Scottish Government does not expect there to be any adverse impact as a result of this commencement order.

Regulations and possible impacts on children and young people

The Carers (Scotland) Act 2016 (Agreements of a Specified Kind) Regulations 2017

Regulations

31. These Regulations provided for under section 1(3)(a) were made on 25 July 2017 and came into force on 1 October 2017.

32. This was to ensure clear definitions under the Act were in place in order for local authorities to set their first local eligibility criteria from 1 October 2017.

Provision

33. Section 1 describes the key definitions of "carer", "young carer" and "adult carer" for the purposes of the Act.

Possible impact of regulations under section 1(3)(a)

34. This ensures that one of the key policy intentions of the Act of widening access to support for carers will be achieved, with the inclusion of kinship carers.

35. The distinctions between who is: a carer of a looked after child; a carer of a non-looked after child; and an "informal" kinship carer, is important to understand in the totality of the Act and for wider policy considerations. However, the process of establishing whether the kinship carer has an "agreement" under section 12 of the Looked After Children (Scotland) Regulations 2009 takes place before a local or responsible authority considers preparing an adult carer support plan ( ACSP) or young carer statement ( YCS).

36. The inclusion of kinship carers as defined above for the purposes of the Act reinforces the policy intention that the new legislation extends the reach of support available to eligible carers.

37. Kinship carers can often be in need of further support in addition to the financial assistance that may be offered to help meet their particular needs. By enabling support to kinship carers through the provisions of the Act, cared-for children will also be better supported.

38. The number of additional people who may request or be offered an ACSP or YCS, and receive support as an eligible carer, is not expected to be significant.

39. The Scottish Government expects there to be a positive impact on children and young people as a result of these provisions.

The Carers (Scotland) Act 2016 (Prescribed Days) Regulations 2017

Regulations

40. These Regulations provided for under section 22(2) were laid on 16 June 2017, and came into force on 1 October 2017.

Provision

41. Section 21 provides that each local authority must set local eligibility criteria to apply in its area. The local eligibility criteria is the criteria by which the local authority determines whether it is required to provide support to meet the identified needs of carers.

42. Section 22 provides that each local authority must publish its local eligibility criteria.

Possible impact of regulations under section 22(2)

43. The intention of these regulations is to prescribe to local authorities (a) that local eligibility criteria should be published within 6 months from 1 October 2017 and (b) that the first review of these criteria should be within three years.

44. These regulations enable local authorities to plan to undertake their duties, and provide a level of democratic accountability at a local service delivery level.

45. The Scottish Government believes there is no adverse impact on children and young people as a result of these provisions.

The Carers (Scotland) Act 2016 (Adult Carers and Young Carers: Identification of Outcomes and Needs for Support) Regulations 2018

Regulations

46. These Regulations provided for under sections 8 and 14 were laid on 15 February 2018, and will come into force on 1 April 2018.

Provision

47. These Regulations provide for further clarity about the identification of an adult carer's or young carer's personal outcomes and needs for support to be undertaken by the responsible (local) authority.

48. An adult carer's or young carer's personal outcomes and needs for support must be identified through conversation between the responsible (local) authority and the carer. An adult carer's or young carer's personal outcomes and needs for support must be reviewed when the adult carer support plan or young carer statement is reviewed.

Possible impact of regulations under sections 8 and 14

49. The identification of personal outcomes and needs for support are integral to the duty to prepare the adult carer support plan and young carer statement. The Scottish Government believes there is no adverse impact on children and young people as a result of these provisions.

The Carers (Scotland) Act 2016 (Review of Adult Carer Support Plans and Young Carer Statements) Regulations 2018

Regulations

50. These Regulations provided for under sections 10 and 16 were laid on 2 February 2018, and will come into force on 1 April 2018.

Provision

51. These Regulations provide for the "trigger" circumstances in which an adult carer support plan or young carer statement must be reviewed outwith planned review times.

Possible impact of regulations under sections 10 and 16

52. A review of an ACSP or YCS will ensure that the individual needs of an adult carer or young carer are being appropriately considered and supported whenever there is a substantial change of circumstances, including the health and wellbeing of the cared-for adult or cared-for child.

53. The Scottish Government believes there is no adverse impact on children and young people as a result of these provisions.

The Carers (Scotland) Act 2016 (Short Breaks Services Statements) Regulations 2018

Regulations

54. These Regulations provided for under section 35(4) were laid on 2 February 2018, and will come into force on 1 April 2018.

Provision

55. These Regulations make provision about the preparation, publication and review of short breaks services statements.

Possible impact of regulations under section 35(4)

56. The Scottish Government believes there is no adverse impact on children and young people as a result of these provisions.

The Carers (Scotland) Act 2016 (Transitional Provisions) Regulations 2018

Regulations

57. These Regulations provided for under section 43 were laid on 2 February 2018, and will come into force on 1 April 2018.

Provision

58. These Regulations provide for the transition from the provision of support to carers under existing legislation to support provided under the Carers Act.

59. These Regulations provide that existing support to the adult carer or young carer must continue until "trigger" circumstances require an adult carer support plan ( ACSP) or young carer statement ( YCS) to be prepared, as well as the periods within which an ACSP or YCS must be offered to the carer.

Possible impact of regulations under section 43

60. These regulations provide for continuity of existing support services to adult carers and young carers. The Scottish Government believes there is no adverse impact on children and young people as a result of these provisions.

The Carers (Waiving of Charges for Support) (Scotland) (Amendment) Regulations 2018

Regulations

61. These Regulations provided for under section 87(5) were laid on 2 February 2018, and will come into force on 1 April 2018.

Provision

62. These Regulations ensure that costs incurred by a local authority in the provision of support to a carer are not charged to that carer.

Possible impact of regulations under section 87(5)

63. The Scottish Government believes there is no adverse impact on children and young people as a result of these provisions.

The Self-directed Support (Direct Payments) (Scotland) Amendment Regulations 2018

Regulations

64. These Regulations provided for under sections 15 and 22(1) of the Social Care (Self-directed Support) (Scotland) Act 2013 were laid on 2 February 2018, and are due to come into force on 1 April 2018.

Provision

65. These Regulations to maintain the requirement that local authorities cannot means test or require a contribution from a carer where carer support is being delivered by way of a direct payment.

Possible impact of regulations under section 87(5)

66. The Scottish Government believes there is no adverse impact on children and young people as a result of these provisions.

The Public Bodies (Joint Working) (Prescribed Local Authority Functions etc.) (Scotland) Amendment (No. 2) Regulations 2017

Regulations

67. These amending Regulations were laid on 7 November 2017, and will come into force on 1 April 2018.

Provision

68. These Regulations remove section 3 from the entry for the Social Care (Self-directed support) (Scotland) Act 2013 from the list of enactments in the schedule of the Public Bodies (Joint Working) (Scotland) Act 2014, as this provision is repealed by the Carers Act. It also provides that the functions conferred on a local authority under sections 6, 24, 25, 31, 34 and 35 of the Carers Act are ones which must be delegated to Integration Authorities. This amendment ensures that provisions in the Carers Act are consistent with the way other social care functions have been delegated to Integration Authorities.

Possible impact of regulations under section 87(5)

69. These amending Regulations allow responsibility for a number of local authority related functions for carers to be passed to Integrated Authorities so that they can direct their the way they are carried out, updating existing legislation in order for the Carers Act to function as intended. There is no adverse impact on children and young people as a result of these provisions.

I confirm that this CRWIA sufficiently demonstrates that the impact of the Carers (Scotland) Act has been assessed:

Name and job title of a Deputy Director or equivalent Jamie MacDougall Deputy Director Care Support and Rights Division

Date this version authorised: 20 March 2018