Scottish Government Response to 'Carers Legislation - Consultation on Proposals - January 2014'

Chapter 9: Links between ACSP/YCS and cared-for person's assessment

There is one other key issue we did not consult on that we want to clarify in law.

We propose that regard should be had to the ACSP/YCS when conducting a cared-for person's assessment under section 12A of the Social Work (Scotland) Act 1968 Act or section 23 of the Children (Scotland) Act 1995.

There should be a consistent understanding between the ACSP/YCS and the cared-for person's assessment about the care that is to be provided by the carer (and the extent to which the carer is willing and able to continue providing such care). The local authority should have regard to the part of the ACSP/YCS which records the nature of the 'caring role' which is being or is to be undertaken by the carer.

The first stage of the cared-for person's assessment should be for his or her needs to be assessed independently and in isolation of any support or services (including care from an unpaid carer) which might be available to him or her. This should mean that the totality of the cared-for person's needs are identified. This is what is currently set out at section 12A(1)(a) of the 1968 Act.

The second stage is (in very general terms) to consider what types of services may need to be put in place to meet those needs. Section 12A of the 1968 Act and section 23 of the 1995 Act take different approaches here. Section 12A(1)(b) requires the local authority to decide whether the needs to be met call for the provision of services. In so doing, the local authority is required to take into account what care is being provided by an unpaid carer (12A(1)(b)) or information received in relation to health or housing services which may be available to the person (section 12A(3)).

Section 12A works on the basis that the cared-for person still has the 'needs' which are met by the unpaid care or health or housing services, but they are not needs which call for the provision of community care services. This is because they are being met from another source.

By contrast, section 23(3) and (4) of the 1995 Act imply that the child has no 'needs' in respect of assistance that he or she might require as a result of a disability if those needs are in fact being met by an unpaid carer. In the 1968 Act, 'needs' means a requirement that the person has by virtue of his or her condition/illness/disability etc. In the 1995 Act, 'needs' has the more narrow meaning of the requirements which exist once unpaid care is taken into account.

We envisage that one of the results of the ACSP/YCS process should be a clearer statement than exists under the current carer's assessment processes of the nature of the caring role that is to be undertaken by the carer. The personal outcomes agreed in the context of each ACSP/YCS will be intended to identify a state of affairs which, if achieved, will sustain the carer in that caring role. It is quite possible that the caring role which is identified during the course of the ACSP/YCS process may be different from the extent of the care which the carer is currently providing. This is because it must take into account what the carer is able and willing to do (and, in the case of a young carer, what is appropriate for them to do).

Take the example of a cared-for person who is unable to prepare meals or feed him- or herself without assistance. At the beginning of the community care and ACSP/YCS process, it might be the case that there is no support in place other than that being provided by the carer and so the carer is preparing all of the meals and assisting the person to eat.

However, the carer may be unable or unwilling to do that (e.g. an elderly spouse who is themselves struggling to cope) or it may be inappropriate (e.g. a young carer who is missing large parts of the school day because he travels home each lunchtime to help his disabled mother to eat). In such a case, we would envisage that the prospective 'caring role' identified in the course of the ACSP/YCS process would be less than is currently being undertaken by the carer. It might, instead, be agreed that it is appropriate for the young carer to assist his mother most evenings and some weekends (and that he is able and willing to do so), but that he will not do so on weekdays at breakfast or lunchtime because that is incompatible with his education. The mother would therefore have needs for assistance with eating at those times which would not, in future, be met through the provision of unpaid care. The local authority would have to have regard to this fact in deciding what community care services to provide to her.

The local authority will need to take into account the care which will in fact be provided by the carer when making the decision at 12A(1)(b) of the 1968 Act (or applying the factors set out in section 23(4) of the 1995 Act before making its decision under section 23(3)).

We recognise that some carers may choose not to have an ACSP or YCS. In all cases, the local authority would take into account the care actually being provided by the carer or young carer. In cases where the carer has an ACSP or YCS which sets this out, it makes sense for the local authority to obtain the relevant information by looking at that plan/statement.

We will bring forward changes to the existing legislation to allow for the above to happen.