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

Chapter 3: Support to carers (other than information and advice)

Question 11 Should we introduce a duty to support carers and young carers, linked to an eligibility framework?

Question 12 Alternatively, should we retain the existing discretionary power to support carers and young carers?

Question 13 Should we introduce a duty to provide short breaks?

What we heard

Many respondents commented that a duty to support both adult and young carers would bring clarity and transparency to the decision-making processes about supporting carers. Both the local authority and health board response was split exactly 50/50 with some wanting to continue with the existing discretionary power to support carers in the SDS Act. Some respondents, both in support of and against introduction of a duty, sought assurances about the funding of the duty.

Many carers and carers organisations consider short breaks as a vital source of support for carers. The majority of respondents supported the introduction of legislation to improve the provision of short breaks but within this the majority of local authorities and health boards were against a duty.

The Scottish Government response

We propose to introduce both a duty and a power to support adult and young carers.

This duty will apply where carers and young carers have identified needs which cannot be met by the information and advice service or by services generally available to people in the community, and which meet local eligibility criteria. We fully expect that some carers' needs will be met, wholly or partly, by the provision of information and advice and/or by services in the community. Indeed, local carer organisations are very good at connecting carers to services in the community.

There will be a determination about whether any of the needs are eligible needs. The question of whether needs are eligible will be determined by reference to local eligibility criteria which each local authority must set for its own area (as explained further below). If the needs are eligible, then support must be provided to meet the eligible needs.

In determining which support to provide to adult and young carers to meet their eligible needs, it will be a requirement that consideration must be given in particular as to whether the support should take the form of or include a break from caring. Short breaks are one important form of support to carers and they should be provided to meet carers' needs where there is particular consideration resulting in a decision to support carers or young carers by the provision of short breaks.

Moreover, we are aware that local authorities are experiencing understandable challenges in implementing The Carers (Waiving of Charges for Support) (Scotland) Regulations 2014^[8] under the SDS Act. Those regulations require local authorities not to charge for services provided to a carer following a carer's assessment. The main challenge is the categorisation of replacement care provided to a cared-for person at the point when a carer takes a break. It is not always clear if replacement care is provided to the carer following a carer's assessment in order to meet the needs of the carer (where charges would be waived) or provided to the cared-for person in order to meet their assessed needs (and therefore chargeable). We understand that this may have an impact on the extent to which some areas are able to exercise the power to support carers. We are actively working with COSLA to resolve the difficulties. Resolution would be expected to result in a favourable position regarding breaks from caring.

The voluntary sector short breaks fund of £3 million per annum managed on behalf of the Scottish Government by Shared Care Scotland and the Family Fund is supporting carers and young carers throughout Scotland. Subject to Spending Review decisions, we would want to continue with this fund to complement the provisions in the Bill concerning support to carers and young carers.

We want local authorities to be able to take into account and to respond to local need. Therefore, we propose that each local authority must set local eligibility criteria. There must be consultation with carers and carers organisations before setting the criteria. Each local authority will be required to publish its eligibility criteria as well as review the eligibility criteria. We also want to ensure that the local eligibility criteria are set within the context of important Scotland-wide matters. Therefore, national matters will be set out in regulations which will be consulted on. These national matters could include the need for preventative approaches to supporting carers, a crucial point which was made by respondents to the consultation. They might also include a need to support carers living in the most deprived economic and social circumstances, whilst taking into account the impact of caring on each individual carer.

The local eligibility criteria overlaid with key national matters will help to ensure an approach to supporting carers which has due regard to Scotland-wide considerations.

We will also have a regulation-making power for Scottish Ministers to set out national eligibility criteria which could be used if necessary in the future in place of the local eligibility criteria.