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

Part 8: Transitional arrangements

Summary

Before the Act came into force on 1 April 2018, assessments for carers were carried out under section 12AA of the Social Work (Scotland) Act 1968 and section 24 of the Children (Scotland) Act 1995. Support for carers could then be provided under section 3(4) of the Social Care (Self Directed Support) (Scotland) Act 2013 or as 'services' under section 22 of the Children (Scotland) Act 1995. The Act replaces this old system.

The Carers (Scotland) Act 2016 (Transitional Provisions) Regulations 2018 provide for existing carers who receive support or services under the old system to move to the new system under the Act. In summary, local authorities must:

continue providing support or services to existing carers and continue to waive charges, until they move to the new system or cease to need carer support; and

keep this support or services under review until the carers move to the new system.

For any existing adult carer who, on 1 April 2018, is already receiving support under section 3(4) of the Social Care (Self Directed Support) (Scotland) Act 2013, the responsible local authority must offer an adult carer support plan where a change in circumstances has had (or could have) a material impact on the care provided by the carer and in any case by 31 March 2021. And they must carry out an adult carer support plan if requested.

For any existing carer who, on 1 April 2018, is already receiving services under the Children (Scotland) Act 1995, the responsible authority must offer a young carer statement (or if the carer has become an adult carer, the responsible local authority must offer an adult carer support plan) where a change in circumstances has had (or could have) a material impact on the care provided by the carer and in any case by 31 March 2019. The responsible authority or responsible local authority (as appropriate) must also carry out a young carer statement or adult carer support plan if requested.

What are transitional arrangements for?

8.1.1. From 1 April 2018, assessments for carers under the Social Work (Scotland) Act 1968 and the Children (Scotland) Act 1995 are superseded by the more comprehensive and outcomes-focused adult carer support plans (ACSPs) and young carer statements (YCSs) under the Act and support for adult carers and young carers will be provided under section 24 of the Act.

8.1.2. Transitional arrangements are needed to regulate the way existing carers move from the old system of carer assessments and support to the new system under the Act. The Carers (Scotland) Act 2016 (Transitional Provisions) Regulations 2018^[204] ('the Regulations') have therefore been made under section 43 of the Act. They work by providing for when existing carers must be offered ACSPs or YCSs, so that they can move to the new system.

Principles

8.1.3. The transitional arrangements were developed with three principles in mind.

Continuity of support

8.1.4. The transitional arrangements are intended to provide continuity of support and services for existing carers during the transition process. Carers who currently receive support or services under the old system should continue to do so until they move to the new system under the Act. Authorities should continue to provide that support or services until these carers have an adult carer support plan or young carer statement (as appropriate) and until decisions about future support under the Act are in place.

Managed transition to new system

8.1.5. The transitional arrangements are also intended to ensure that existing carers move onto the new system on a phased basis and over a reasonable timescale. This approach is designed to avoid creating bottlenecks and to allow authorities to manage the process of existing carers moving to the new system alongside providing ACSPs, YCSs and support to 'new' carers.

Responsive to individual circumstances

8.1.6. The transitional arrangements are intended to be responsive to the circumstances of individual carers. Existing carers should be able to request an ACSP or YCS under the Act at any time. Existing carers must also be offered an ACSP or YCS when their caring circumstances change significantly. These provisions will work alongside longstop dates to ensure that all existing carers benefit from the person-centred approach of an adult carer support plan or young carer statement within a reasonable timescale.

Transitional Provisions Regulations

8.1.7. The Regulations themselves are quite technical and complex to read. Some of that technical complexity arises from differences in concepts and terminology between the old and new systems for supporting carers. In some cases responsibility for supporting an individual carer will also move from one local authority to another when the carer moves from the old system to the new one.

8.1.8. There is added complexity in relation to young carers because some existing carers will be transitioning to become adult carers during the same period as they move between the old and new systems. The regulations are drafted to allow for that possibility.

8.1.9. The regulations are summarised above. Their effect for adult carers and young carers is considered in more detail below.

Adult Carers

Carer's assessments in progress under the old system on 31 March 2018

8.1.10. Where a carer's assessment has been or is being carried out under the old system but no support has yet been provided to the carer, the carer should be treated as having been identified for the purpose of the Act and the responsible local authority must offer the carer an ACSP under section 6(2) of the Act. The regulations do not make any specific provision for these cases so the normal requirement to offer an ACSP applies.

8.1.11. It is recommended that authorities consider prioritising these cases which are already in progress. Authorities may wish to draw on information from the carers assessment under the old system when preparing ACSPs under the new system.

Duty to continue support under the old system.

8.1.12. Where a local authority is providing support to a carer under section 3(4) of the Social Care (Self Directed Support) (Scotland) Act 2013 immediately before 1 April 2018, regulation 3 requires the local authority to continue to provide that support. That duty applies until the carer is provided with an ACSP, rejects the offer of an ACSP or no longer has needs for support.

Review of support under the old system

8.1.13. A local authority who is continuing to provide support to a carer (under Regulation 3) must make arrangements to keep that support under review (Regulation 5). This is intended to ensure that the local authority becomes aware of changes in circumstances which could have a material impact on the caring situation and could therefore trigger the duties to offer the carer an ACSP under Regulation 11. This will also ensure the local authority becomes aware of changes which mean the carer no longer has any needs for support.

8.1.14. The Regulations do not dictate what the arrangements to keep support under review should be. It could involve light touch arrangements to keep in regular contact with the carer and cared-for person. Local authorities can put in place arrangements which work in their local context and which are proportionate to the individual caring situation. For example, a carer in good health who cares for someone whose condition is stable may require less frequent contact from an authority than a carer in poor health who cares for someone with a deteriorating condition.

8.1.15. Local authorities may wish to ensure that their review arrangements are responsive and flexible enough to take account of changes which are brought to their attention by the carer. Less responsive review arrangements could result in more individual requests for ACSPs from existing carers, which the authority would have to respond to on a reactive basis.

8.1.16. If as a result of light touch review a local authority considers that a more in depth assessment is required to understand how the caring situation has changed, it may often be more appropriate to offer an ACSP at that stage, rather than carrying out a more in-depth review of existing support.

Moving to the new system

8.1.17. The trigger for an existing carer to move to the new system under the Act can be a request for an ACSP from the carer or an offer of an ACSP from the responsible local authority.

Request from carer for ACSP

8.1.18. An adult carer who is receiving support under the old system can move to the new one by requesting an ACSP from the responsible local authority under section 6(4) of the Act. The carer's existing support must continue under regulation 3 until they are provided with an ACSP under section 6 of the Act.

Material change triggering duty to offer ACSP

8.1.19. Regulation 11 requires the responsible local authority to offer a carer an ACSP where it appears to the local authority a change in circumstances has had a material impact on the care provided by the carer.

8.1.20. In some cases the local authority providing support to the carer under the old system will not be the responsible local authority under the new system. In such cases, where the local authority under the old system identifies that there has been a material impact on the care provided they must inform the responsible local authority. The responsible local authority must then offer an ACSP to the carer.

Proactive offer of ACSP by responsible local authority

8.1.21. Regulations 6 and 8 require all adult carers who receive support under the old system to be offered an ACSP by 31 March 2021 (three years after the Act comes into force). This three year transition period provides a longstop date rather than a target. It is intended to allow local authorities to manage a smooth, gradual transition, alongside supporting new carers under the Act.

8.1.22. Local authorities can offer an ACSP to a carer at any time after the Act is in force. It is not recommended that authorities wait until the end of the transition period before offering ACSPs to the majority of existing carers.

8.1.23. It is expected that all existing carers will move to the new system on a gradual basis over the course of the three years. Some carers will request ACSPs under the Act, other carers will move to the new system when their circumstances change (as outlined above) and the remaining carers should be offered ACSPs on a proactive basis by their responsible local authority.

8.1.24. It is recommended that local authorities put arrangements in place to manage the process of offering ACSPs to existing carers. These could be scheduled in different ways, tailored to local circumstances, needs and priorities, for example, prioritising carers with particular levels or types of need.

8.1.25. This approach will mean that some groups may move to the new system later than others. This could be achieved without disadvantaging individual carers because (as highlighted above) any carer can still request an ACSP and must be offered one if they have a material change in circumstances.

What to do when responsibility is moving from one authority to another

8.1.26. There will be cases where the local authority providing support to a carer under the old system is not the 'responsible local authority', which has the duty to prepare an ACSP and provide support under the Act. That arises because the local authority supporting a carer under the old system may be the authority where the carer lives, whereas under the Act, the responsible local authority is the authority where the cared-for person lives.

8.1.27. Where a local authority is supporting a carer under the old system but will not be the responsible local authority under the new system, regulation 8 requires the (old) local authority to inform the (new) responsible local authority. This is intended to ensure that responsible local authorities will become aware of all adult carers who are receiving support under the old system so that they are identified as carers for the purpose of the duties in the Act.

8.1.28. Where local authorities share a boundary, it is recommended that they work together, firstly to identify whether responsibility for supporting a number of carers is likely to transfer between them in this way and secondly to use their powers to offer ACSPs to manage and co-ordinate their cross-border transitions from the old system to the Act. This proactive approach may help to manage the number of individual requests for ACSPs.

From offer to ACSP

8.1.29. Once an ACSP has been offered the carer's existing support must still continue under regulation 3 until they are provided with an ACSP, reject the offer of an ACSP or they no longer have needs for support.

8.1.30. Once an offer has been made, regulation 13 ensures that it is treated as an offer under the Act. This means that all the other provisions in the Act will apply as normal to the preparation of the ACSP.

Young Carers

Assessments in progress under the old system on 31 March 2018

8.1.31. Where an assessment has been or is being carried out under the old system but no support or services has yet been provided to the carer, the carer should be treated as having been identified for the purposes of the Act. The regulations do not make any specific provision for these cases so the normal requirement to offer a YCS (or ACSP) applies. If the carer is a young carer under the Act, the responsible authority must offer the carer a YCS under section 12(2) of the Act. (If the carer is an adult carer under the Act, the responsible local authority must offer the carer an ACSP under section 6(2) of the Act).

8.1.32. It is recommended that authorities consider prioritising cases which are already in progress under the old system. Authorities may wish to draw on information from the assessment under the old system in order to provide the YCS (or ACSP) under the new system.

Duty to continue support under the old system

8.1.33. Support to young carers under the old system will take the form of services under section 22 of the Children (Scotland) Act 1995. Where a local authority is providing such services to a carer immediately before 1 April 2018, Regulation 4 requires them to continue to provide those services. That duty applies until the carer is provided with a YCS or an ACSP, rejects the offer of a YCS or an ACSP or no longer has needs for support.

8.1.34. The regulations make provision for a carer to be provided with either a YCS or an ACSP. There are two reasons for this. Firstly, there may be carers receiving services under section 22 of the Children (Scotland) Act 1995 who are over 18 and not at school, so would not be 'young carers' under the Act. Secondly, if a carer is under the age of 18 on 1 April 2018, they may become an adult carer during the course of the transition period so would need to be offered an ACSP and not a YCS under the Act.

Review of support under the old system

8.1.35. A local authority who is continuing to provide services to a carer (under Regulation 4) must make arrangements to keep those services under review (see Regulation 5). This is intended to ensure that the authority is aware of changes in circumstances which could have a material impact on the caring situation and could therefore trigger the duties to offer the carer a YCS or an ACSP under Regulation 12.

8.1.36. The Regulations do not dictate what the arrangements to keep services under review should be. It could involve light touch arrangements to keep in regular contact with the carer and cared-for person. Authorities can put in place arrangements which work in their local context and which are proportionate to the age of the carer and the individual caring situation. For example, an older young carer who cares for someone whose condition is stable may require less frequent contact from an authority than a younger carer who cares for someone with a deteriorating condition.

8.1.37. Authorities may wish to ensure that their review arrangements are responsive and flexible enough to take account of changes which are brought to their attention by the carer. Less responsive review arrangements could result in more individual requests for YCSs and ACSPs from existing carers, which the authority would have to respond to on a reactive basis.

8.1.38. If as a result of light touch review a local authority considers that a more in depth assessment is required to understand how the caring situation has changed, it may be more appropriate to offer a YCS or ACSP at that stage, instead of carrying out a more in-depth review of existing services.

Moving to the new system

8.1.39. The trigger for an existing carer to move to the new system under the Act can be either:

• a request for a YCS or an ACSP from the carer;
• an offer of a YCS from the responsible authority; or
• an offer of an ACSP from the responsible local authority.

Request from carer for YCS

8.1.40. A carer who is receiving services under the old system can move to the new one by requesting a YCS from the responsible authority (under section 12(4) of the Act) or an ACSP from the responsible local authority (under section 6(4) of the Act). The carer's existing services must continue under regulation 4 until they are provided with a YCS or ACSP under the Act.

Material change triggering duty to offer YCS or ACSP

8.1.41. Regulation 12 requires responsible local authorities to offer carers a YCS or an ACSP (as appropriate) where it appears to the local authority that a change in circumstances has had a material impact on the care provided by the carer.

8.1.42. In some cases the local authority providing support to the carer under the old system will not be the responsible authority or the responsible local authority under the new system. In such cases, where the local authority under the old system identifies that there has been a material impact on the care provided they must inform the responsible authority and responsible local authority. Then, depending on whether the carer is a young carer or an adult carer for the purposes of the Act, either the responsible authority must offer a YCS or the responsible local authority must offer an ACSP to the carer.

Proactive offer of YCS or ACSP by responsible authority and responsible local authority

8.1.43. Regulations 7, 9 and 10 require all young carers who receive services under the old system to be offered a YCS or an ACSP by 31 March 2019 (one year after the Act comes into force). The shorter transition period for young carers (one year as opposed to three) reflects the need for more frequent reviews in this vulnerable group. The reference to ACSPs is to allow for the possibility that carers may move from receiving services under section 22 of the Children (Scotland) Act 1995 to being adult carers under the Act.

8.1.44. The one year transition period provides a longstop date rather than a target. It is intended to allow local authorities to manage a smooth, gradual transition, alongside supporting new carers under the Act.

8.1.45. Responsible authorities can offer a YCS to a young carer and responsible local authorities can offer an ACSP to an adult carer at any time after the Act is in force. It is not recommended that authorities wait until the end of the transition period before offering YCSs or ACSPs to the majority of existing carers.

8.1.46. It is expected that all existing carers who receive services under the old system will move to the new system on a gradual basis over the course of the year. Some carers will request YCSs under the Act, other carers will move to the new system when their circumstances change (as outlined above) and the remaining carers should be offered YCSs or ACSPs (according to whether they are young carers or adult carers under the Act) on a proactive basis by their responsible authority or responsible local authority.

8.1.47. It is recommended that local authorities put arrangements in place to manage the process of offering YCSs and ACSPs to existing carers. These could work in different ways and could be tailored to local circumstances, for example, prioritising carers with particular levels or types of need.

8.1.48. This approach could mean that some groups would move to the new system later than others but this could be achieved without disadvantaging individual carers because (as highlighted above) any carer can still request a YCS or an ACSP under the Act and must be offered one if they experience a material change in circumstances.

What to do when responsibility is moving from one authority to another

8.1.49. There will be cases where the local authority providing services to a carer under the old system is not the 'responsible authority', which has the duty to prepare a YCS or is not the 'responsible local authority', which has the duty to prepare an ACSP and to provide support to young carers and adult carers under the Act.

8.1.50. Regulations 9 and 10 deal with circumstances where a local authority is providing services to a carer under the old system but will not be the responsible authority or the responsible local authority under the new system. The regulations require the (old) authority to inform the (new) responsible authority and (new) responsible local authority that it is providing services to the carer. This is intended to ensure that responsible authorities and responsible local authorities will be made aware of all carers who are receiving services under the old system.

8.1.51. Where local authorities share a boundary, it is recommended that they work together, firstly to identify whether responsibility for supporting a number of carers is likely to transfer between them in this way and secondly to use their powers to offer ACSPs to manage and co-ordinate their cross-border transitions from the old system to the Act. This proactive approach may help to manage the number of individual requests for YCSs and ACSPs from carers receiving services under the old system.

From offer to YCS or ACSP

8.1.52. Once a YCS or an ACSP has been offered, the local authority must continue to provide the carer's existing services under regulation 4 until the carer is provided with a YCS or ACSP, rejects the offer of the YCS or ACSP or no longer has needs for support.

8.1.53. Once an offer has been made, regulation 14 ensures that it is treated as an offer under the Act. This means that all the other provisions in the Act will apply as normal to the preparation of the YCS or ACSP.

Information about transitional arrangements

8.1.54. It is recommended that local authorities consider including information on their local transition arrangements in their first local carer strategies under Part 5 of the Act. This information is unlikely to be relevant to subsequent strategies as all existing carers should have moved to the new system by the time the strategies fall to be reviewed under section 33 of the Act.

8.1.55. It is also recommended that local authorities ensure that the information and advice services they provide under Part 6 of the Act can provide information and advice about the transition arrangements for existing carers.