Draft Self-directed Support Statutory Guidance on care and support

Annex A: Legal duties in relation to social care assessment and support planning

Assessment duties in relation to adults

Section 12 (1) Social Work (Scotland) Act 1968

General social welfare services of local authorities

(1) It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance on such a scale as may be appropriate for their area, and in that behalf to make arrangements and to provide or secure the provision of such facilities (including the provision or arranging for the provision of residential and other establishments) as they may consider suitable and adequate, and such assistance may, subject to subsections (3) to (5) of this section, be given in kind or in cash to, or in respect of, any relevant person.

(2) A person is a relevant person for the purposes of this section if, not being less than eighteen years of age, he is in need requiring assistance in kind or, in exceptional circumstances constituting an emergency, in cash, where the giving of assistance in either form would avoid the local authority being caused greater expense in the giving of assistance in another form, or where probable aggravation of the person's need would cause greater expense to the local authority on a later occasion.

Section 12A, Social Work (Scotland) Act 1968

Duty of local authority to assess needs

(1) Subject to the provisions of this section, where it appears to a local authority that any person for whom they are under a duty or have a power to provide, or to secure the provision of, community care services may be in need of any such services, the authority-

(a) shall make an assessment of the needs of that person for those services; and

(b) shall then decide, having regard to the results of that assessment, and taking account-

(i) where it appears to them that a person ("the carer") provides a substantial amount of care on a regular basis for that person, of such care as is being so provided; and .
(ii) in so far as it is reasonable and practicable to do so, both of the views of the person whose needs are being assessed and of the views of the carer (provided that, in either case, there is a wish, or as the case may be a capacity, to express a view)

whether the needs of the person being assessed call for the provision of any such services.

Assessment duties in relation to children

Section 22, Children (Scotland) Act 1995

Promotion of welfare of children in need

(1) A local authority shall-

(a) safeguard and promote the welfare of children in their area who are in need; and

(b) so far as is consistent with that duty, promote the upbringing of such children by their families

by providing a range and level of services appropriate to the children's needs.

Section 23, Children (Scotland) Act 1995:

Children affected by disability

(1) Without prejudice to the generality of subsection (1) of section 22 of this Act, services provided by a local authority under that subsection shall be designed-

(a) to minimise the effect on any-

(i) disabled child who is within the authority's area, of his disability; and
(ii) child who is within that area and is affected adversely by the disability of any other person in his family, of that other person's disability; and

(b) to give those children the opportunity to lead lives which are as normal as possible.

(2) For the purposes of this Chapter of this Part a person is disabled if he is chronically sick or disabled or suffers from mental disorder (as defined in section 328(1) of the Mental Health (Care and Treatment)(Scotland) Act 2003).

(3) Where requested to do so by-

(a) a child's parent or guardian; or

(b) a mental health officer (as defined in section 329 of the Mental Health (Care and Treatment)(Scotland) Act 2003 who -

(i) has responsibility under that Act or the Criminal Procedure (Scotland) Act 1995 for a child's case; and
(ii) makes a request for the purposes of either of those Acts,

a local authority shall, for the purpose of facilitating the discharge of such duties as the authority may have under section 22(1) of this Act (whether or not by virtue of subsection (1) above) as respects the child, carry out an assessment of the child, or of any other person in the child's family, to determine the needs of the child in so far as attributable to his disability or to that of the other person.

(4) In determining the needs of a child under subsection (3) above, the local authority shall take account-

(a) where it appears to them that a person ("the carer") provides a substantial amount of care on a regular basis for the child, or for another person in the child's family who is being assessed under that subsection, of such care as is being so provided; and

(b) in so far as it is reasonable and practicable to do so, of-

(i) the views of the parent or guardian of the child, and the child; and
(ii) the views of the carer,

provided that the parent, guardian, child or carer in question has a wish, or as the case may be, a capacity, to express a view.

Assessment duties in relation to carers

Carers of adults

Section 12AA, Social Work (Scotland) Act 1968

Assessment of ability to provide care

(1) A person ("the carer") who provides, or intends to provide, a substantial amount of care on a regular basis for another person aged eighteen or over ("the person cared for") may, whether or not the carer is a child, request a local authority to make an assessment ("the carer's assessment") of the carer's ability to provide or to continue to provide such care for that person.

(2) The local authority to whom the request is made shall-

(a) comply with the request where it appears to them that the person cared for is a person for whom they must or may provide, or secure the provision of, community care services; and

(b) if they then or subsequently make an assessment under subsection (1)(a) of section 12A of this Act of the needs of the person cared for, have regard to the results of the carer's assessment-

(i) in the assessment of the person cared for; and .
(ii) in making their decision under subsection (1)(b) of that section as respects that person.

(3) Subsection (1) above does not apply as respects a carer who provides, or will provide, the care in question-

(a) by virtue of a contract of employment or other contract; or

(b) as a volunteer for a voluntary organisation.

Carers of children

Section 24, Children (Scotland) Act 1995:

Assessment of ability of carers to provide care for disabled children

(1) Subject to subsection (2) below, a person ("the carer") who provides, or intends to provide, a substantial amount of care on a regular basis for a disabled child may, whether or not the carer is a child, request a local authority to make an assessment ("the carer's assessment") of the carer's ability to provide or to continue to provide such care for the child.

(1A) The local authority to whom the request is made shall-

(a) comply with the request where it appears to them that the child, or another person in the child's family, is a person for whom they must or may provide services under section 22(1) of this Act; and

(b) if they then or subsequently make an assessment under section 23(3) of this Act to determine the needs of the child, have regard to the results of the carer's assessment-

(i) in the assessment of the child; and
(ii) in making a decision as to the discharge by them of any duty they may have as respects the child under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 or under section 22(1) of this Act.

(2) No request may be made under subsection (1) above by a person who provides or will provide the care in question-

(a) under or by virtue of a contract of employment or other contract; or

(b) as a volunteer for a voluntary organisation.