Carers (Scotland) Act 2016: statutory guidance - updated July 2021

Summary

A. Key Messages

This is a summary of the statutory guidance for local authorities, health boards and integration authorities on effective implementation of the provisions of the Carers (Scotland) Act 2016 ('the Act'). It will also be of interest to other organisations working alongside statutory bodies to deliver carer support, as well as the directing authorities of independent or grant aided schools responsible for young carer statements.

The Act gives carers rights to a new adult carer support plan or young carer statement without first requiring them to be providing care on a substantial and regular basis. This reflects a preventative approach to identify each carer's personal outcomes and needs for support through meaningful conversations with individual carers. This preventative approach is also reflected in the requirement to provide information and advice services to carers. The third sector is well placed to help deliver information and advice.

Prevention is pivotal in how carers and the people that they care for are supported. Much of carer support is focused on intervening as early as possible in a carer's journey, including by providing information and support to promote quality of life, independence and engagement with their communities in order to prevent deterioration in their situation. This preventative approach also underpins the integration of health and social care and the embedding of self-directed support as Scotland's mainstream approach to social care and ongoing work on the reform of adult social care. (The preventative approach is discussed further at Part 3, Chapter 2 - Duty to provide support to carers).

The Act also seeks to improve physical and emotional wellbeing and deliver positive outcomes for Scotland's carers by ensuring more personalised and effective delivery of carer support. Personalisation is a social care approach which promotes choice, control and independence for people who use services. This can have a significant impact on the lives of carers and the people they provide care to and can help to sustain good caring relationships. The Act requires local eligibility criteria to be set in each local authority area. These frameworks will help local authorities determine the level of support to provide to carers based on their identified needs.

Carer involvement is a key principle of the Act. It is intended to empower carers with more useful information about the support that may be available to them and to ensure that they can share their caring experiences and knowledge with those responsible for providing support or services. Carers should be involved in setting local eligibility criteria. Carers and carer representatives must also be involved in the preparation of local carer strategies, short breaks services statements and planning of carer services. Carers must also be involved in hospital discharge processes.

B. Local carer strategies

The Act requires local carer strategies to be developed across Scotland. These will set out plans to identifying carers, provide support and services to adult and young carers and provide information about local support. The duty to prepare local carer strategies applies to local authorities and relevant health boards but is delegated to integration joint boards^[1].

Local authorities and health boards are strongly recommended to work closely and collaboratively with carers and the third sector in preparing strategies. Part 5 provides guidance on preparing a Local Carer Strategy.

C. Carers Journey- Adult Carers

C.1 Identification of a carer

Under the Act a 'carer' is an individual who provides or intends to provide care for another individual. A carer can be caring for one or more cared-for persons. A cared-for person can have one or more carers. They don't need to live in the same house. See Part 1 of the guidance for further information.

An 'adult carer' is a carer who is at least 18 years old and is not a 'young carer'.

Part 1 of the guidance contains more information about definitions.

C.2 Adult carer support plan (ACSP)

Where a person self-identifies as a carer they may request an adult carer support plan (ACSP). If they appear to meet the definition of carer, the responsible local authority must prepare an ACSP.

When carers are identified by practitioners, whether in the community or acute settings, they must be offered an ACSP. If they accept the offer the responsible local authority must prepare an ACSP.

The ACSP provides a framework for identification of personal outcomes and individual needs for support of adult carers. ACSPs are considered in Part 2 of this guidance.

The ACSP links to the duty and power of the responsible local authority to provide substantive support to meet identified needs. Decisions about whether a carer's identified needs meet local eligibility criteria depend on the information obtained through the outcomes focused conversation with the carer whilst preparing their ACSP. The information within the ACSP will include the nature and extent of care; the impact of caring; and the extent to which the carer is able and willing to provide care. Thus decisions about support and the completion of the ACSP (with information on carer support to be provided) are mutually dependent.

The ACSP will require to be agreed with the carer before it is completed and the support agreed to be put into place. The carer must be given a copy of the finalised ACSP.

Chapter 1 of Part 2 provides advice on ACSPs, including following a proportionate approach, taking account of the impact of the caring role on the carer.

C.3 Applying local eligibility criteria, decisions about support and charging

There is no national eligibility threshold for support. Instead local eligibility criteria are set by each local authority to determine the levels of impact/risk and need which trigger the duty to provide support - acknowledging that there will be circumstances that merit the exercise of the power to provide support to people whose needs fall below the local eligibility threshold.

The Act establishes a process to determine whether a local authority has a duty to provide support to an individual carer to meet their identified needs, as illustrated by the Carer Support Pathway in Figure 1.

The duty (as opposed to the power) to provide support to a carer depends on the extent to which a carer's needs for support meets local eligibility criteria. This process is explained in more detail in Part 3 of the guidance. Key steps are outlined in Table 1 below.

Table 1: Key steps in preparation of ACSP/ YCS and applying local eligibility criteria

Key Steps	Related sections from the Carers Act
(i) Prepare adult carer support plan or young carer statement setting out carer's identified personal outcomes and identified needs (if any). Accelerated timescales and option of light touch plan/statement apply to carers of people who are terminally ill.	Section 6(1)(a) and (b) and section 12(1)(a) and (b))
(ii) Consider which of the needs can be met through services or assistance to the cared-for person (other than 'replacement care' to provide a break from caring) or provided generally to persons in the area (i.e. by information and advice, universal services and community support).	Section 24(1)(a) and (b)
(iii) If needs are met wholly as per (ii), no further action (but keep under review).	Section 9(1)(l) and section 15(1)(m) re review
(iv) If needs are met only in part by (ii), or not at all, then apply local eligibility criteria to what are the 'outstanding' needs.	Section 24(2) and 3
(v) Decide whether the outstanding needs engage the legal duty to provide support, that is whether the local eligibility criteria are met. Criteria should be applied to each of the areas individually and independently of each other so that if a carer has identified needs in one domain (e.g. health and wellbeing) above the threshold, this would mean that those needs meet the local eligibility criteria and the carer would be eligible for support in that area.	Section 24(4)(a) and section 25(1)
(vi) If the outstanding needs do not meet the local eligibility criteria, decide whether the discretionary power to provide support should be used.	Section 24(4)(b)
NB: Consideration of whether the support to the carer should take the form of or include a break from caring (including replacement care where required) applies in relation to both the duty and power to support carers.	Section 25(1)
(vii) In the case of (v) and (vi), give the carer the opportunity to choose one of the options for self-directed support (unless ineligible to receive direct payments).	Social Care (Self-directed Support) (Scotland) Act 2013

Whilst eligibility criteria enable decision-making regarding support, use of eligibility criteria is not an exact science. Gradations of impact and risk along a five-point scale from 'no impact/no risk'to 'critical impact/critical risk'are not straightforward to describe. It is therefore important that practitioners use their professional judgement in the use of indicators to ensure carers receive the right level of support at the right time. The views of the carer must also be taken into account.

Where the responsible local authority exercises its duty to provide support to the carer to meet the carer's eligible needs or its power to meet the carer's other identified needs (both under section 24 of the Act), the carer must be given the opportunity to choose one of the options for self-directed support (unless the local authority considers that the carer is ineligible to receive direct payments).Any carer support provided for the carer will be provided under section 24 of the Act and cannot be charged for or means tested.

Where support such as general carer training courses, counselling or support groups are openly accessible for carers, e.g. through a local carer centre (without local eligibility criteria being applied), these universal services are not provided under section 24 of the Carers Act. Therefore, the requirement to offer the four options of self-directed support does not apply. A wide range of personal outcomes and identified needs may be met through such preventative carer support.

D. Carers Journey - Young carers

D.1 Identification of a young carer

Under the Act a 'carer' is an individual who provides or intends to provide care for another individual. A carer can be caring for one or more cared-for persons. A cared-for person can have one or more carers. They don't need to live in the same house. See Part 1 of the guidance for further information.

A 'young carer' is a carer who is either under 18 years old or is over 18 but has remained at school since turning 18.

Part 1 of the guidance contains more information about definitions.

D.2 Young carer statement (YCS)

Where a young person self-identifies as a carer they may request a young carer statement (YCS). If they appear to meet the definition of a young carer, the responsible authority must prepare a YCS.

When a young carer is identified by practitioners, whether in the community or acute settings, they must be offered a YCS. If they accept the offer the responsible authority must prepare a YCS.

A YCS provides a framework through which needs for support are assessed and monitored and support is managed. The YCS is intended to ensure that young carers are seen as children and young people first and foremost and are protected from undertaking caring responsibilities and tasks which are inappropriate, having regards to their age and maturity.

The YCS has to set out a young carer's identified personal outcomes, identified needs (if any) and the support (if any) to be provided by the responsible local authority to a young carer to meet those needs. Part 2 of the Guidance considers YCSs in more detail.

The authority responsible for the YCS can be different from that responsible for supporting the young carer. Also, different authorities can be responsible for YCSs compared to ACSPs, as summarised below. In addition, some integration authorities will have responsibility for children's services while in other cases local authorities will retain that responsibility. Delegation issues are considered further in Part 7.

Decisions about whether identified needs meet local eligibility criteria depend on the information obtained through the outcomes focused conversation with the young carer whilst preparing their YCS. The information within the YCS will include the nature and extent of care; the impact of caring; and the extent to which the carer is able and willing to provide care. Thus, such decisions and the completion of the YCS (with information on carer support to be provided) are mutually dependent.

The YCS will require to be agreed with the young carer before it is completed and the support agreed to be put into place. The young carer must be given a copy of the finalised YCS.

Chapter 2 of Part 2 provides advice on YCSs, including following a proportionate approach, taking account of the impact of the caring role on the young carer.

D.3 Young carers: Applying local eligibility criteria, decisions about support and charging

There is no national eligibility threshold for support. Instead local eligibility criteria are set by each local authority to determine the levels of impact/risk and need which trigger the duty to provide support - acknowledging that there will be circumstances that merit the exercise of the power to provide support to people whose needs fall below the local eligibility threshold. The Act does not preclude the use of different eligibility criteria in relation to young carers. However, it is proposed that very similar local eligibility criteria to those for adult carers are used.

The Act, establishes a process to determine whether a local authority has a duty to provide support to a young carer to meet their identified needs, as illustrated in the Carer Support Pathway in Figure 1, above.

The duty (as opposed to the power) to provide support to a carer depends on the extent to which a carer's needs for support meet the local eligibility criteria. This process is explained in more detail in Part 3 of the guidance. Key steps are outlined in Table 1 above. The distinctive needs of young carers should be considered when assessing eligible need and putting support in place.

Use of eligibility criteria is not an exact science. Gradations of impact and risk along a five-point scale from 'no impact/no risk'to 'critical impact/critical risk'are not straightforward to describe. It is important that practitioners use their professional judgement in the use of the indicators to ensure carers receive the right level of support at the right time. The views of the carer must also be taken into account.

Where the responsible local authority exercises its duty to provide support to the carer to meet the young carer's eligible needs or its power to meet the young carer's other identified needs (both under section 24 of the Act), the carer must be given the opportunity to choose one of the options for self-directed support (unless the local authority considers that the carer is ineligible to receive direct payments).

Any carer support provided for the young carer will be provided under section 24 of the Act and cannot be charged for or means tested.

Where support services such as general young carer forums, counselling or support groups are openly accessible for young carers through a local carer centre (without local eligibility criteria being applied), these universal services are not provided under section 24 of the Carers Act. Therefore the requirement to offer the four options of self-directed support does not apply. A wide range of personal outcomes and identified needs may be met through such preventative carer support services.

E. Responsibilities

Duty	Section	Who is responsible?	See main guidance
Adult carer support plan	6-11	The 'responsible local authority' is responsible for offering and preparing ACSPs. This is the local authority for the area in which the cared-for person resides. Local authority functions under sections 6 to 11, must be delegated to the integration authority, so far as they relate to adult social care.	Part 2, Chapter 1
Young carer statement	12-20	The 'responsible authority' is responsible for offering and preparing YCSs. This is: for the majority of young carers - the local authority of the area where the young carer resides; for pre-school young carers - the health board for the area where the young carer resides; for young carers who attend a grant aided or independent school - the directing authority of that school. Local authority functions under sections 12 to 20, can be delegated to the integration authority, so far as they relate to children's social care.	Part 2, Chapter 2
Local Eligibility Criteria	21 & 22	Each local authority must set local eligibility criteria. Local authority functions under sections 21 and 22, must be delegated to the integration authority, so far as they relate to adult social care.	Part 3, Chapter 1
Provision of support, waiving of charges and replacement care	24, 25 & 26	The responsible local authority has powers and duties to provide support to carers, including a duty to consider whether support should take the form of or include a break from caring. The responsible local authority is always the local authority for the area in which the cared-for person resides. In relation to young carers, this means that the responsible authority (with the duty to prepare the YCS) may be different from the responsible local authority (with the duty/power to provide support). Local authority functions under sections 24 and 25 must be delegated to the integration authority, so far as they relate to adult social care.	Part 3, Chapters 2, 3
Duty	Section	Who is responsible?	See main guidance
Carer involvement in service planning	27, 29 & 30	Local authorities and health boards must consider appropriate involvement of carers and carer representatives in the planning and evaluation of carer services and support.	Part 4
Carer involvement in hospital discharge	28	Each health board must involve the carer before a cared-for person (the patient) is discharged from hospital.	Part 4
Local Carer Strategy	31-33	Each local authority and relevant health board must prepare a local carer strategy.	Part 5
Information and advice for carers	34	Each local authority must establish and maintain an information and advice service for carers resident in that local authority area or caring for someone in that local authority area. Local authority functions under section 34 must be delegated to the integration authority, so far as they relate to adult social care.	Part 6, Chapter 1
Short breaks services statement	35	Local authorities must prepare and publish a statement which sets out information on short breaks provision available to local carers and cared-for persons. Local authority functions under section 35, must be delegated to the integration authority, so far as they relate to adult social care.	Part 6, Chapter 2
Carers' charter	36	Scottish Ministers must prepare a Carers' charter.	Part 6

Part 2, Chapters 1 and 2 on ACSPs and YCSs and Part 3, Chapter 2 on the duty and power to support carers include advice on situations where carers reside in a different area from the cared-for person.