Social Care (Self-directed Support) (Scotland) Act 2013: Draft Regulations and Statutory Guidance – Analysis of Consultation Responses

14 GUIDANCE - WIDER LEGAL DUTIES AND STRATEGIC RESPONSIBILITIES

14.1 Section 9.5: Wider legal duties and strategic responsibilities. In this section, the guidance looks at the relationship between the 2013 Act and a wide range of aspects of care.

14.2 A number of specific issues were highlighted in the consultation. In relation to the relationship between the 2013 Act and re-ablement (a short term package of support) and intermediate care (support during transitions), the consultation explains that these are viewed as part of the assessment process and are not, therefore, covered by the duties to offer the various options for receiving support (which only apply to support following assessment). Respondents were asked whether this should be set out in regulations, or whether they felt the options should be offered in these circumstance.

14.3 In relation to other forms of social welfare support such as assistance to people fleeing domestic abuse, assistance to address homelessness or drug and alcohol addiction, respondents were asked their views on whether or not it would be appropriate to offer the various options for receiving support in these cases.

Question 12a: Was this section of the guidance clear and easy to understand?

14.4 Sixty-eight respondents said that this section of the guidance was clear and easy to understand. Ten felt it was not and 66 did not reply.

Question 12b: How useful did you find this section of the guidance?

14.5 As can be seen in the table below, most of those who replied said that this section of the guidance was quite useful (56). Thirteen respondents said it was very useful, six said it was not very useful and one individual said it was not at all useful.

Table 14.2 Usefulness of Section 9.5 of the guidance

Respondent group	Very useful	Quite useful	Not very useful	Not at all useful	No response
Individuals (21)	4	1	-	1	15
Local authority (24)	4	13	5	-	2
Community Health Partnership (4)	-	3	-	-	1
Health Board (2)	-	1	-	-	1
Voluntary sector organisation (57)	3	25	1	-	28
Private Sector organisation (2)	1	1	-	-	-
Professional or regulatory body (8)	-	4	-	-	4
Support & information/Advocacy (16)	-	5	-	-	11
Other (10)	1	3	-	-	6
Total (144)	13	56	6	1	68

Question 12c: Do you have any further comments on this section of the guidance?

14.6 Sixty-four respondents commented on this question. A small number of these made general comments in relation to this question, although most respondents opted to relate answers to specific elements of the guidance. These comments are outlined in the following paragraphs.

Direct Payments

14.7 A number of respondents made comments about direct payments, although this is not a specific section within this part of the guidance.

14.8 The key comment in relation to direct payments was that service users need to be assessed on an individual basis and that local authorities should have the discretion to offer the four options as outlined, on a case by case basis. One or two of these also noted that it could be discriminatory or stigmatic to prevent some service users from accessing the four SDS options.

14.9 There was a general view that the starting point should be one of inclusivity for all, with restrictions only being imposed in light of risk assessment. Respondents queried why those who are homeless or fleeing domestic abuse would not be offered a direct payment and felt that this goes against what is written in the guidance.

14.10 A number of key themes emerged to this element in the guidance. First, a number of respondents noted that there needs to be more detail provided, more clarity and to include information in relation to safeguards, both from the perspective of the service user and for personal assistants (PAs). Linked to this, there were also concerns over the responsibilities of a service user as an employer and the need for them to understand their employer responsibilities. As such, a number of respondents called for much clearer guidance on safeguarding duties and noted that there could be a conflict between this and other legislation such as Adult Support and Protection legislation and Child Protection legislation, so that choice and control could be supported against other wider duties.

14.11 Second, there were suggestions from a number of respondents - mostly local authorities and community health partnerships - that there should be more discretion for local authorities to restrict access to certain self-directed support options if an individual or member of the general public could be at risk. Once a service user takes on the role of employer, local authorities are not able to share information with a PA and monitor the relationship between service user and PA.

14.12 A few respondents also commented that the same issues also relate to child protection but that this is not addressed in the draft Guidance and Regulations.

14.13 A significant number of respondents provided commentary on re-ablement and intermediate care specifically; a number of whom welcomed the definition of re-ablement and intermediate care or simply noted that these sections are helpful. There were some mixed views as to whether SDS options should be available here; with some respondents noting they should not be, while others felt that a wide range of choice should be available to service users and / or that this may complement existing packages provided via SDS options. There were a small number of suggestions that options 1 and 2 for re-ablement and intermediate care should be a power available to local authorities.

14.14 There were also some comments that if SDS is already in place, there will be a need to keep this alongside any re-ablement to help keep continuity of carers and avoid any legislation issues. Linked to this, there were a small number of requests from local authorities for the guidance to make reference to how it anticipates re-ablement support will interface with existing SDS support packages, especially in relation to the employment of personal assistants.

14.15 One key comment emerged in relation to residential care. This was that all SDS options should be available to all of those eligible for social care or support, that those in residential care should have the right to choose the support option they want or that residential care should not be treated differently from other services. Some respondents noted that the Act should be as inclusive as possible, and therefore should not disallow eligibility for those in residential care. This is also perceived by a small number as being against equality and human rights legislation and inherently discriminatory.

14.16 The key comment to emerge in relation to charging specifically was that it is unfair to charge service users for social care or support services, particularly in the light of changes that are also being introduced with welfare reform; with some additional comments that this could be seen as discriminatory.

14.17 There were also a small number of references to the need for local authorities to ensure a consistent charging policy and take cognisance of the Equality Act 2010.

14.18 In relation to equipment and adaptations, some respondents asked for more clarity on what is meant by housing adaptation, while others asked for guidance on how housing adaptations impact on current funding sources and obligations, with a need for the guidance to show how this will apply to owner-occupiers and landlords.

14.19 There were also some comments on the need for greater detail on how SDS legislation will interact with other legislation including housing legislation; and for recommendations on ownership, maintenance and repair or equipment purchased using direct payments (for example, to make clear in the guidance that equipment purchased must meet assessed needs safely and appropriately).

14.20 There were a small number of comments that self-assessment is not appropriate for anything beyond superficial design details and decoration, with one respondent calling for reference to professional guidance being sought from relevant medical specialists, for example, if a service user is considering a stair lift.

Other forms of social welfare

14.21 The key theme emerging to this part of the guidance was that local authorities should be able to exercise discretion or professional judgement or that a power should be conferred on local authorities to offer direct payments, rather than a duty.

14.22 There were some specific requests for reference to links with other forms of social welfare support and children and families support.

14.23 In response to this question, there were a small number of suggestions to consult with service users, and one respondent commented on the need for the Care Inspectorate's role and responsibilities to be referenced at relevant points in the guidance.

14.24 Finally, there were some other references to other legislation and the need for the guidance to take cognisance of this. Other legislation included:

• The Mental Health (Care and Treatment) Act 2003 Section 25;
• Social Work (Scotland) Act 1968 - asylum seekers;
• Adults with Incapacity (Scotland) Act 1968.

14.25 There were also a small number of comments that there also needs to be consideration to the impact of current welfare reform.