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

Annex A: Support to carer or cared-for person

1. There are various reasons why it is important to be clear about whether a decision to provide a particular service is being taken in relation to the cared-for person or the carer:

• if support is provided as a result of an assessment of the cared-for person's social care needs and outcomes under section 12A, then it is clear from sections 5, 6 and 11(2) of the SDS Act that it is for that person to decide whether the support should be provided and how it should be delivered;
• the cared-for person might not wish to receive particular support and so they may not be delivered in practice even though the local authority has decided they have an eligible need through assessment of their social care needs;
• as set out above, different eligibility criteria might apply in assessing whether the needs of the cared-for person call for the provision of social care support or carer support; and
• the rules in relation to whether a charge can be made in respect of the support or services will be different if it is provided for the carer or the cared-for person.

2. Section 12A of the Social Work (Scotland) Act 1968 and section 8 of the Disabled Persons (Services, Consultation and Representation) Act 1986 make provision for social care assessments to take into account the care provided by a carer and the carer's ability to continue to provide that care. These provisions are intended to ensure that the local authority is fully informed about the level of care that a carer is willing and able to provide.

3. Section 12A(1)(b)(ii) of the 1968 Act also expressly requires the local authority to take into account any views which the carer wishes and is able to express, so far as it is reasonable and practicable to do so.

4. As such, the two assessments should dovetail. For example, if a cared-for person requires 24/7 care and the carer is willing and able to provide that care for 8 hours a day, the social care needs assessment should cover the cared-for person's needs for the remaining 16 hours a day.

5. If there is already a social care needs assessment in place at the point where an adult carer support plan (ACSP) or young carer statement (YCS) is being prepared, and if support is being delivered in accordance with that assessment, then the support provided by the local authority to the cared-for person should be reflected in the part of the ACSP or YCS which sets out the nature and extent of the caring role.

6. The local authority would be required to consider the extent to which the carer's needs are not already being met by the provision of support to the cared-for person, and apply its eligibility criteria to those remaining needs.

7. Additional support that might be suitable or needed for the cared-for person could be identified in the context of the ACSP or YCS and not the social care needs assessment. This might happen where the carer does not agree with the support provided to the cared-for person, either because the situation has changed since the last social care needs assessment; because the cared-for person wants more support from the carer than the carer wishes; or because the carer feels that the decisions already made are not good decisions and make too many assumptions about the carer's willingness to care. This sort of concern may well be raised during the ACSP or YCS process and the Scottish Government would expect them to be taken seriously. If it was agreed that the concerns were valid, there might be agreement to revisit the social care needs assessment to see what could be done to resolve matters.

8. Guidance on the Community Care and Health (Scotland) Act 2002^[205] makes clear that carers and cared-for persons should have the opportunity to discuss their needs individually without the other person being present.

9. As and when the social care needs assessment is reviewed, that might result in additional support being put in place for the cared-for person which would in turn change the needs which are identified under the ACSP or YCS. However, until any change to the social care needs assessment had been made, the local authority would still be under a duty to meet those needs identified in the ACSP which meet the eligibility criteria. This could not be through a change in support for the cared-for person without their social care needs assessment having been reviewed and so the local authority would have to consider other options available which would provide support to the carer.

10. As a matter of good practice, a revision to the social care needs assessment done quickly would enable a final decision on how to meet the carer's needs could be met once changes to the cared-for person's support had taken effect. However, there may well be cases where it takes time for any new support to be available and put in place, so completion of the ACSP or YCS should not be conditional on the social care needs assessment having been reviewed.

11. Therefore, each of the social care needs assessment and ACSP or YCS processes include a requirement on the person conducting the process to have regard to what is decided from time to time under the other process. If the duty to provide tailored support to the carer then operates by reference to the needs which are still existing when both general services and indirect services provided to the cared-for person are taken into account, this will give the correct result.

12. A similar analysis applies in relation to the interaction between ACSP/YCS and an assessment under section 23(3) of the Children (Scotland) Act 1995 where the carer cares for a disabled child. The assessments may be easier to bring together in practice where the carer is a parent of a disabled child, since the carer will often be responsible for agreeing to the support to be provided to the child in their capacity as parent. This means that there is a smaller risk of conflict about what is required to be provided to the child than in the case of a cared-for adult. However, the general principles about the interaction between the two processes should apply equally to considering how far support provided to a disabled child in accordance with a section 23(3) assessment impacts on the needs of their carer.

13. In situations where the cared-for person does not have a social care needs assessment, the carer may still have identified needs which meet the local eligibility criteria. In such circumstances, the carer may have identified needs which might be met by services or assistance provided to the cared-for person but which are not provided via a social care needs assessment, for example, the provision of additional health services to the cared-for person. This should be recorded in the ACSP or YCS.