Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance

Section 1: The purpose and definition of Self-directed Support

Who is this Statutory Guidance for?

This Guidance is for Local Authority and Health & Social Care Partnerships, NHS organisations or Integration Joint Board staff (the phrases 'local authority', 'authorities' or 'the authority' will be used throughout the Guidance depending on the context^[1] who have statutory functions with respect to the provision of social care for adults (including older people) and children.^[2]

It is particularly relevant for social workers and those with delegated statutory duties relating to the undertaking and oversight of assessment and review processes which are the embodiment of the principles and duties under the provisions of the Social Care (Self-directed Support) (Scotland) Act 2013 ('The 2013 Act').^[3]

It is also relevant for social care and health practitioners and SDS leads, finance officers and senior managers, as well as legal, commissioning, procurement and audit teams in individual local authorities, supported people, unpaid carers, Personal Assistants (PAs), advocacy and independent support organisations, care providers and those who assess, approve or administer social work and social care and support.

This Guidance is issued by Scottish Ministers under Section 5 of the Social Work (Scotland) Act 1968, and is an update of the Statutory Guidance^[4] first published in 2014.

Purpose of the Statutory Guidance

The 2013 Act came into force on 1 April 2014, and is grounded in a human-based approach (see section below on human rights).

The Scottish Government believes that social care is an investment in people. SDS, alongside many other policies, is intended to support, promote and protect people's human rights and through access to independent living support people's participation in Scotland's social, political and civic life. SDS also has the potential to promote equality of opportunity by removing the barriers which society places in the way of supported people and unpaid carers in all of their diversity. It aims to ensure that care and support is delivered in a way that supports choice and control over one's own life.

The guidance relates solely to social care support arranged by Local Authorities, Health and Social Care Partnerships and Joint Integration Boards, and should be read together with the 2013 Act and 2014 Regulations.^[5] See also the Self-directed Support: Practitioner Guidance.^[6]

The aim of this Guidance is to help duty-bearers within the relevant authorities to fulfil their duties under the 2013 Act. In light of recent evidence on the implementation of SDS (including the Independent Review of Adult Social Care – IRASC – in 2021,^[7] the Care Inspectorate thematic report^[8] in 2019 and Audit Scotland report in 2017^[9] the guidance also intends to support improved implementation and practice.

It highlights the flexibility of existing legislation and regulations, incorporates the SDS Framework of Standards^[10] and emphasises the importance of enabling choice, autonomy, good conversations, and a mature and positive approach to risk enablement and management. While the guidance provides links to other sources of guidance and good practice throughout, the guidance is intended to be a starting point for training and good practice rather than a substitute for these.

The update also incorporates policy and legislative changes relevant to the delivery of SDS which have taken place since the 2013 Act came into force. These include:

• The Children and Young People (Scotland) Act 2014 which sets out additional duties relating to improving outcomes for all children and young people in Scotland;
• The Public Bodies (Joint Working) (Scotland) Act 2014, concerning the integration of health and social care and to devolve responsibility to Health Boards, Local Authorities and Integration Authorities;
• The Carers (Scotland) Act 2016, which sets out the duties of local authorities to provide information and support to carers (including the right to an adult carer support plan or young carer statement to identify each carer's personal outcomes and needs for support, and the right to support if carers meet eligibility criteria);
• The guidance on SDS during the COVID-19 pandemic, which was published in May 2020 and most recently updated^[11] in March 2022.

This update emphasises the importance of rights, and that SDS is the way that social care must be delivered in Scotland (for children, adults and those in transition to adulthood), and that authorities must therefore take reasonable steps to uphold the rights of supported people and carers as described in the statutory principles. The update also incorporates the inputs of a Short Life Working Group which was convened in 2022 to bring into the drafting process the expertise and perspectives of local authorities, the third sector and people with lived experience. There has been no formal public consultation process.

Nothing in this Guidance supersedes any legislation or other legal obligations to which relevant organisations may be subject. Where there is a reference in this SDS guidance to any legislation or statutory guidance, for example in the section on related legislation, given the law can quickly change, users of this SDS guidance should check that those references are up to date and seek independent advice in appropriate circumstances.

SDS Definition and Statutory Principles

SDS is 'the way that care and support is delivered, making the principles of choice and control central to care and support, and giving individuals full opportunity to take control of their support and their lives.'^[12] SDS is therefore about how a support plan is put into action so that children, adults and their guardians or carers receive the help they need to meet agreed personal outcomes.

SDS helps supported people and carers to make informed choices – based on their unique needs and circumstances – on what their support looks like and to have choice and control over how that support is arranged, managed and delivered. SDS applies across all ages and user groups, including unpaid carers and children.

SDS is about 'a co-production and supportive process involving good conversations with people needing support'^[13] . SDS, alongside other policies, is intended to respect, protect and fulfil human rights, and aims to ensure that care and support is delivered in a way that supports choice and control over one's own life and which respects the person's right to participate in society.

Sections 1 and 2 of the 2013 Act provides four statutory principles relating to a person's human rights: participation and dignity, involvement, informed choice and collaboration. The statutory principles are important because they set out the underlying aims or 'spirit' of the legislation and complement the detailed duties and powers provided elsewhere in the Act.

This means that duty-bearers in the relevant authorities must follow both the letter and the spirit of the guidance, both as public providers of social work and social care services, and as partners in Integration Joint Boards, where they work with their NHS partners and others to meet local needs and manage health and social care resources. The principles apply to the social worker assessments and to the provision of choice to meet people's requirements.

The four principles are described below and should be considered alongside practice statements contained in the Self-directed Support Framework of Standards. The Standards were published in 2021 to ensure consistency of outcomes and approaches in SDS practice across Scotland experienced by supported people (children and adults) and unpaid carers:

1. Participation and dignity are core aspects of independent living defined by the UN Convention on the Rights of Persons with Disabilities^[14] . They describe the approach whereby the supported person has the same freedom, choice, dignity and control as other citizens at home, at work and in the community, and where carers have a life outside caring. In some respects the concept of independent living provides a modern interpretation of the social welfare duties provided in the 1968 Act. Under the statutory principle of participation and dignity the authority must take reasonable steps to facilitate the principle a) that the supported person's right to dignity is to be respected, and; b) that the supported person's right to participate in the life of the community is to be respected. This applies both to the initial assessment of need and to the provision of choice as part of the wider support planning process.

2. Involvement is the principle that the supported person must have as much involvement as the person wishes in both the assessment and in the provision of support associated with that assessment. This recognises the importance of involving the adult, carer or child in determining their needs and developing appropriate solutions in order to meet those needs. It is built into the 2013 Act that people must be enabled to participate in their own assessment of needs and the provision of support or services.^[15]

3. Informed choice is the principle that the supported person must be provided with any assistance that is reasonably required to enable the person to express views about the options for SDS available to them and to make an informed choice. This is a key principle, essential to ensuring that the person can be fully involved in designing and implementing their support. This will require consideration of, for example, advocacy, brokerage, interpretation or other communication support.

4. Collaboration is the principle that the practitioner must collaborate with the supported person in relation to the assessment of the person's needs and in the provision of support or services to the person. A collaborative approach helps to stimulate new or alternative solutions, and supports an equal partnership between the practitioner (able to bring their expertise, knowledge and statutory and professional responsibilities) and the adult, child or carer (aware of and expert in their personal outcomes, supported to articulate and develop those outcomes and how they wish to achieve them).

Human rights-based approach under the 2013 Act

This section describes the approach to respecting, protecting and fulfilling human rights. The 2013 Act states that local authorities must take reasonable steps to facilitate the four statutory principles: participation and dignity, involvement, informed choice, and collaboration.^[16] A human rights-based approach empowers people to know and claim their rights. The provision of social care, and the facilitation of choice as part of this, is a means by which to further realise and protect human rights.

There are some underlying principles which are important in applying a human-rights based approach in practice. These are sometimes referred to as the PANEL^[17] principles (Participation, Accountability, Non-discrimination, Empowerment and Legality).

Supported people should be able to use SDS budgets to choose from a wide range of goods, services or support from a local authority, private or third sector provider in line with their identified needs and outcomes.

The intended goal of the 2013 Act is to shift the balance of power from people who provide services towards those who access them. This will ensure a full and collaborative exploration of all SDS options, which does not start from the basis of available funding or services. Supported people may have a range of identified needs which can be met in a variety of ways, including attending college, going to work, participating in leisure pursuits or taking short breaks.

Duty-bearers in the relevant authority, and all individuals or organisations responsible for discharging the duties and powers described in this Guidance should therefore take a rights-based approach when implementing this Guidance and in ensuring that people have as much choice and control as possible.^[18]

See Section 11 which lists further resources on advocacy, brokerage and human rights under the 2013 Act.

The enabling context for SDS

The delivery of SDS is complex and takes place in a dynamic and challenging context that includes financial, workforce and public health issues. This Guidance therefore cannot cover all aspects of SDS delivery, and cannot replace effective training and professional judgement. In most cases, this Guidance refers to social workers carrying out their duties in their statutory role (although other types of social services workers and healthcare practitioners may also be involved).

What has been learned since the 2013 Act came into force emphasises the importance of creativity and good conversations in upholding the rights of supported people and achieving their outcomes. The SDS Implementation Plan 2019-2021^[19] also emphasised the importance of senior decision-makers and systems in creating the culture and conditions for people to have choice and control over their social care support.

For example, while Audit Scotland's 2017 report^[20] highlights the broad challenges that authorities face, it also highlights that where SDS is well-implemented, supported people and unpaid carers point to the impact of flexible and creative approaches in making support options available to them. The My Support, My Choice^[21] reports also contain further examples.

This Guidance does not prescribe approaches to resource allocation at local or national level for social care, which is a difficult issue acknowledged in the section on eligibility criteria and in the section on legal considerations.

However, it is important to recognise that successful implementation relies on the enabling conditions identified by The Promise report^[22] and the IRASC. Some of these enabling conditions are also mentioned elsewhere in this Guidance, for example in Section 3 (on Roles and Responsibilities).

See Annex 1 for diagrams which summarises key aspects of how SDS should work.

Towards a National Care Service

Statutory responsibility for the delivery of SDS currently sits with Local Authorities, Health and Social Care Partnerships and individual providers. It is the intention of the Scottish Government that a National Care Service (NCS) will be established before the end of this Parliamentary term in 2026. The National Care Service will bring together all adult social care support delivered in Scotland under the accountability and responsibility of Scottish Ministers, working through new local care boards who will plan, design and deliver community health, social work and social care services locally.

The establishment of the NCS^[23] aims to bring social care into parity of esteem with healthcare, and to transform the provision of this essential service. It will help ensure national standards, improve consistency, raise the quality of services across the country, and address the variation in quality and access to community health and social care that have been raised as a concern by those in receipt of support and care and their families.

It is anticipated that within the NCS, statutory responsibilities set out under the 2013 Act will move from local authorities to the NCS local care boards (and/or to the NCS at national level if that is appropriate) and that social workers will continue to have a key role in assessment and in agreeing outcomes with supported people.

However, at time of publication of this Guidance, it has yet to be decided whether functions relating to services for children and justice services will be transferred to the NCS. If such transfers are proposed, further consultation will be carried out.

Consistent with the approach and statutory principles underpinning the 2013 Act, the NCS intends to incorporate the Getting It Right For Everyone (GIRFE) adult practice model, which is a co-design approach involving people with lived experience.

GIRFE is a multi-agency approach to support and services, from young adulthood to end-of-life care, and aims to provide a more personalised way to access help and support when it is needed and placing the person at the centred of all decision making that affects them to achieve the best outcomes. This will help ensure that the principles underpinning SDS are integrated into national social care policy-making and implementation.

Further information about this Guidance can be obtained from:

Self-directed Support Team

Improving Standards and Quality Division

Directorate for Social Care and National Care Service Directorate

St. Andrew's House

Regent Road, Edinburgh EH1 3DG

E-mail: ASCAS@gov.scot