Coronavirus (COVID 19): changes to social care assessments - statutory guidance for local authorities on sections 16 and 17 of the Coronavirus Act 2020

1 Introduction

1.1 Status of guidance

Please note that this guidance was updated on 6 November 2020 to reflect the changes brought in by the Coronavirus (Suspension: Adult Social Care) (Scotland) Regulations 2020 which came into effect on 30 November. These regulations partially suspended section 16 of the Coronavirus Act 2020 ("the 2020 Act") insofar it relates to adult social care and adult carers.

It was further amended on 29 September 2021 to reflect the changes brought in by the Coronavirus Act 2020 (Suspension: Children and Young Persons Social Care) (Scotland) Regulations 2021 which come into effect on 29 September 2021. These regulations suspend section 16 insofar as it relates to children services and young carers. Although section 16 has been suspended, section 17 of the 2020 Act remains in force.

This statutory guidance is issued by Scottish Ministers under section 17 of the 2020 Act.

Local authorities must have regard to the guidance and may be directed to comply with it under section 17(2)(b) of the 2020 Act.

1.2 Who this guidance is for

This guidance is primarily intended for local authorities and integration authorities, which have duties under the following legislation:

• Section 12A of the Social Work (Scotland) Act 1968 ("the 1968 Act");
• Sections 23 and 29 of the Children (Scotland) Act 1995 ("the 1995 Act");
• Section 1 of the Social Care (Self-directed Support)(Scotland) Act 2013 ("the 2013 Act"); and
• Sections 6 and 12 of the Carers (Scotland) Act 2016 ("the 2016 Act")

Those authorities must have regard to this guidance in exercising their functions.

Other organisations and individuals, including care providers, carers and users of health and social care services, will have clear interests in the guidance.

It is intended to be read alongside sections 16 and 17 of the 2020 Act, relating to Social Care Assessments in Scotland.

1.3 Relationship with other guidance

While section 16 of the 2020 Act was in force, this guidance took precedence over older guidance. This applied to pre-existing guidance issued under 5(1) of the Social Work (Scotland) Act 1968 and codes of practice published under section 274(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003.

The existing guidance under section 5 of the 1968 Act which was affected includes guidance about social care assessments for adults, young carers and children.

Now that section 16 has been suspended for both adults and children, local authorities should revert to pre-existing guidance relating to social care, children's services and carers.

1.4 Overview of social care assessment provisions

The Coronavirus Act 2020 ("the 2020 Act") makes provision to respond to an emergency situation and manage the effects of a COVID-19 pandemic. Sections 16 and 17 of the 2020 Act allow for an easing of health and social care assessment duties in relation to adult social care, carer support and children's services in Scotland. Regulations, in force from 30^th November 2020, suspended the powers in section 16 as they apply to adult services, including support for adult carers. Regulations, to be in force from 29 September 2021 will suspend the powers in section 16 as they apply to children's services, including support for young carers. Section 17 remains in force

Section 16 of the 2020 Act allowed Local Authorities to dispense with particular assessment duties where complying would not be practical or would cause unnecessary delay in providing urgent care and support to people. The aim to allow Local Authorities to focus their resources on meeting the most urgent needs, thereby protecting the lives of the most vulnerable members of society.

The provisions can be switched on and off as necessary, including in different parts of the country, in order to respond to the COVID-19 outbreak. As highlighted above, section 16 was switched off for adults in November 2020 and will be switched off for children in September 2021.

When section 16 was in force, authorities were still obligated to do as much as they can to meet people's needs, with appropriate safeguarding measures in place.

1.5 Values and principles

When using these provisions, all decisions made on an individual's social care needs should be considered alongside their individual wellbeing and fundamental human rights.

To support ongoing response planning and decision-making, and to ensure that key ethical values and principles are considered throughout this challenging period, additional considerations are provided in the Ethical Framework for Adult Social Care. This sets out the values which should underpin all our decisions, which include respect, reasonableness, minimising harm, inclusiveness, accountability, flexibility, proportionality and community.

The value and principles enshrined in Getting It Right For Every Child remains central to all decisions which support children, young people and their families. This includes decisions in relation to support for young carers.

1.6 When the assessment duties on Local Authorities will be eased

The powers for Local Authorities to decide whether or not to do full assessments was made available from 5^th April 2020 when commencement regulations brought section 16 into force. Section 16 is being switched off ('suspended') by regulations as highlighted above.

These powers were only to remain switched on when they were absolutely necessary to allow local authorities to prioritise and provide urgent care without delay. They were to be switched off by regulations when they are no longer needed. They can be switched on and off for different areas at different times – for example to deal with a very intense localised outbreak. The intention was that the powers would only be brought into operation for the shortest time possible and only when absolutely necessary to protect people. This guidance has been updated to reflect the suspension of the powers in respect of adult social care assessments and adult carers as of 30 November 2020 and now from 30 September to reflect the suspension for children's assessments and young carers.

The 2020 Act will expire after a set period under section 89. This will ensure that the emergency provisions it contains are only available for as long as they are needed to deal with the COVID 19 outbreak.