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

Part 1: Key Definitions

Meaning of 'carer', 'young carer' and 'adult carer'

Summary

Section 1(1) and 1(2) defines 'carer'.

Section 1(3) provides a regulation-making power for Scottish Ministers to specify certain exceptions in relation to care provided under a contract or as voluntary work.

Section 2 defines 'young carer'.

Section 3 defines 'adult carer'.

Meaning of 'carer'

1.1.1. Section 1(1) defines a carer as an individual who provides or intends to provide care for another individual ('the cared-for person').

1.1.2. Where the Act refers to 'carers' it means both adult and young carers of the cared-for person.

Intention to provide care

1.1.3. 'Intending to provide' care would encompass situations where, for example, a previously healthy person is about to be discharged from hospital and will require care, which a relative or friend is willing and able to provide. This person will be the carer.

1.1.4. It may also be the case that the cared-for person requires a fluctuating level of care due to their condition, and so the carer would not always be providing care but rather intending to do so should the need arise.

1.1.5. There is a duty on authorities to offer an adult carer support plan (ACSP) or young carer statement (YCS) in respect of an identified carer and to prepare one if that offer is accepted. The duty to prepare an ACSP or YCS also applies in circumstances where a carer has requested one. These duties are considered in Part 2 of this guidance.

Situations involving more than one carer or cared-for person

1.1.6. A carer can be caring for one or more cared-for persons. A cared-for person can have one or more carers. They do not need to live together in the same household.

Removal of 'regular and substantial test'

1.1.7. The definition of carer is not limited to individuals who provide or intend to provide a substantial amount of care on a regular basis. This represents a change from previous legislation on duties to carry out a 'carer's assessment'.

1.1.8. It is expected that people who are being neighbourly to their elderly neighbours (for example, doing the shopping now and again, a spot of gardening, clearing the snow from the path) will not normally be viewed as carers. The expectation is that such people will, for the most part, continue to see themselves as being a helpful neighbour. However, the situation could change if these neighbourly acts become more frequent. In these circumstances, the person might become a carer.

Exclusions – parents of dependent children

1.1.9. Section 1(2)(a) states that a person is not a carer 'in the case of a cared-for person under 18 years old, to the extent that the care is or would be provided by virtue of the person's age'.

1.1.10. This will avoid all parents of dependent children automatically being 'carers' within the Act. But parents of dependent children with additional care and support needs can still be 'carers' to the extent that the care is or would be provided by virtue of something other than the child's age.

1.1.11. This does not mean that a child has to meet the definition of 'disabled child' in section 23(2) of the Children (Scotland) Act 1995^[2] (chronically sick or disabled or having a mental disorder) in order for the parent to be a 'carer'.

1.1.12. A parent would not be viewed as a carer if their child exhibited problematic behaviour which was not due to a condition. The parent might instead be signposted to appropriate parenting support services. It is important to recognise that problematic behaviour may be due to a condition that has not yet been diagnosed. The lack of a formal diagnosis should not prevent parents being recognised as carers and receiving the support they need. This will depend on the relevant multidisciplinary professionals working together with the parent(s) to consider the circumstances of the particular case, to determine whether the parent is in fact a carer and to identify any subsequent support needs.

Exclusions – voluntary work

1.1.13. Under section 1(2)(b)(ii), if the care is or would be provided as voluntary work, then the person undertaking that voluntary work is not seen as a carer.

Exclusions – paid care workers

1.1.14. Paid care workers are excluded from the meaning of carer. This is because under section 1(2)(b)(i), if the care is or would be provided under or by virtue of a contract, then, to the extent that the care is provided under the contract, the person providing the care is not a carer.

Exclusions – foster carers (care under or by virtue of a contract)

1.1.15. The exclusion in section 1(2)(b)(i) also means that foster carers do not fall within the definition of 'carers' under the Act. The vast majority of foster carers are registered as being self-employed and their fostering agreement with a local authority entitles them to a fee or reward element for the care they undertake.

Regulation making power – contract and /or voluntary work

1.1.16. Under section 1(3)(b), Scottish Ministers may make regulations to permit a relevant authority to disregard section 1(2)(b) where the authority considers that the relationship between the carer and the cared-for person is such that it would be appropriate to do so. This would enable people who would otherwise be excluded from the definition to be considered carers.

1.1.17. This allows Scottish Ministers to make regulations to allow a local authority to support carers who provide care by way of a contract or through voluntary work to be classed as 'carers'. This is especially relevant in the case of carers who provide care both on a paid and unpaid basis to same family member. As the Social Care (Self-directed Support) (Scotland) Act 2013 ('the 2013 Act') becomes even more widely used, it is likely that direct payments under the 2013 Act will mean that the number of 'mixed carers' who provide both paid care, by way of a contract with the person they care for, and unpaid care are likely to rise. This power allows legislation to take account of the possible rise in the different types of these caring situations.

1.1.18. Scottish Ministers are not using this regulation-making power at the present time. The exclusion under section 1(2)(b) only applies to the extent that care is provided under a contract or as voluntary work. So it would already be possible for a mixed carer to be considered a 'carer' in relation to the unpaid care they provide outwith the contract. On that basis, local authorities will be able to support mixed carers in relation to the unpaid care they provide and will be able to establish how best to do this based on professional judgment and carer involvement without the need for regulations at this stage.

Regulations to place kinship carers^[3] on the same footing as parents of dependent children

1.1.19. Kinship carers often find themselves undertaking a caring role after a family member has fallen into crisis, with the only alternative being that the child is taken into formal care arrangements. No payment is received for the caring kinship carers undertake but the caring role can be formalised in a written agreement with the local authority.

1.1.20. The Carers (Scotland) Act 2016 (Agreements of a Specified Kind) Regulations 2017^[4] ensure that kinship carers who care for children can be classed as carers for the purpose of the Act, regardless of whether they have a formal written agreement with the local authority or receive a kinship carers allowance. The regulations achieve this by specifying that a written agreement with the local authority^[5] cannot be considered a 'contract' and so would not exclude a kinship carer from the definition of 'carer' under the Act. This places kinship carers on the same footing as parents of dependent children as considered above.

Meaning of 'young carer'

1.1.21. Section 2 defines young carer as a carer who –

(a) is under 18 years old; or
(b) has attained the age of 18 years while a pupil at a school, and has since attaining that age remained a pupil at that or another school.

1.1.22. Any carer who is under 18 will be a young carer, whether or not they are still at school. Older young carers may continue their studies after leaving school. Post school, until they are aged 18 years old, the young person would still be considered a young carer and may have a young carer statement in place. In addition a carer who turns 18 while a school pupil will remain a young carer until leaving school. There is therefore no absolute cut-off age at which a young carer would cease to be a young carer.

1.1.23. There is no lower age limit for being a 'young carer'. It would be arbitrary to create a lower age limit thus excluding access to the young carer statement and support to younger age groups. In most instances, the expectation would be to remove or lessen the caring responsibilities of the relatively few very young carers and to put in place more services for the cared-for person. The responsible authority^[6] will also be alert to any child protection concerns.

Meaning of 'adult carer'

1.1.24. Section 3 defines 'adult carer'. Adult carers must be at least 18 years old and cannot also be not young carers. So if a carer is aged 18 but still at school, they will remain a young carer until they leave school.

Young adult carers

1.1.25. The only age distinction in the Act is between young and adult carers. The Act does not make any specific provisions for 'young adult carers' (normally understood to mean carers aged 16 to 25); instead the individuals will be either 'young carers' or 'adult carers'.

1.1.26. The 16 to 25 age group is often characterised by transitions that may change the caring role and/or the need for support such as the transition to college, university and work; living away from home; or wanting to reduce the caring role/ not wanting to be a carer at all. These can be reflected in the carer's adult carer support plan or young carer statement. Part 2 of this guidance contains more information on the links and transitions between ACSP and YCS.

Person caring for someone in residential care

1.1.27. When an adult is in full-time residential care such as a care home, nursing home or secure unit, there is a question as to whether the person who cared for them prior to them being admitted into residential care is still the carer.

1.1.28. The person in residential care is being provided with accommodation, meals, personal and health care. Nevertheless, some people still consider themselves to be a carer. This may be due to continuing with some caring tasks such as shopping, emotional support, personal care, dealing with personal affairs, and taking their loved one on days out. There is also the emotional impact on the carer of the person being in residential care. Other people do not consider themselves to be carers in this situation.

1.1.29. When a cared-for person is first admitted full-time to residential care, the person who was the carer may continue to have caring responsibilities in the initial settling-in period. This then may diminish over time.

1.1.30. In the circumstances of the cared-for person being in full-time residential care, then the responsible local authority^[7] should decide on a case-by-case basis if the person is providing or intending to provide care for the individual. If the responsible local authority recognises that the person is providing or intending to provide care then an adult carer support plan or young carer statement should be offered. Such a person may themselves request an adult carer support plan or young carer statement. Their request should be granted if they are providing or intending to provide care.

Example

Active caring may continue for some time once a person is in full time care and this may be particularly relevant to some communities. For example, carers from a minority ethnic background may continue to provide language support and facilitate participation within the care setting for their family member.

1.1.31. In practice, because there is no definition of 'care' in the Carers Act and because a carer can provide low-level care, then in many cases the person who cared for the cared-for person prior to them moving to residential care may continue to be considered a carer rather than a visitor.

1.1.32. With regard to 'forensic carers' who support people in forensic mental health services, the carers can have significant caring responsibilities, especially at certain times, for example, support required when the cared-for person moves between secure services or is admitted from prison or general psychiatric services.

1.1.33. With regard to children, it is clear that the parent of the child in residential settings^[8] or NHS care is a carer, since the care they would be providing goes beyond that which is just because of the child's age as at section 1(2)(a)of the Act^[9].

Meaning of 'cared-for person'

1.1.34. The term 'cared-for person' is not defined in the Act but should be commonly understood. There is no requirement for a cared-for person to be someone receiving social care support. The cared-for person might have health needs only. They might have refused social care support. The care needs of the cared-for person may be permanent or temporary.

1.1.35. A carer therefore might have identified needs which meet the local eligibility criteria whilst the cared-for person is not eligible for support and vice versa.

Meaning of 'care'

1.1.36. The term 'care' in the definition of carer is not defined in the Act and so has its ordinary meaning. It therefore means the provision of what is necessary to the cared-for person in order to support their physical and mental health and wellbeing. This can encompass:

a) medical or nursing care, such as helping someone to take medication or applying dressings;
b) personal care, such as helping to wash, dress or eat;
c) practical support, such as taking a person shopping or to medical appointments, cleaning or accompanying them to social events; and
d) emotional support.

1.1.37. The focus is on the impact of care on the carer. As such, the definition of carer does not include any threshold for the level of care provided. In every situation, a proportionate approach to the preparation of the adult carer support plan or young carer statement should be adopted, taking into account the impact of the caring role on the carer. Part 2 of this guidance deals with the preparation of the ACSP and YCS.