The Social Care (Self-directed Support) (Scotland) Act became law in January 2013 with the aim of creating a fairer, person-centred social care and support system, with an increased focus on user participation. It will be implemented on 1 April and should ultimately change the way local authorities provide services so that individuals with care and support needs have more choice and control.
The Act states that in discharging its duties, a local authority must take reasonable steps to facilitate the individual’s rights to have their dignity respected and to participate in community life. It is a major advancement for the independent living movement to enshrine these rights into Scottish law.
The Act then sets out four options for people assessed as having eligible needs for care and support:
- A direct payment;
- The person chooses the support they want with the budget they have been allocated and the local authority arranges it on their behalf;
- The local authority selects and arranges the available support;
- The person chooses any combination of options 1, 2 or 3.
Direct payment restrictions
The Act also specifies that an authority can restrict, terminate or withdraw direct payments from an individual under certain circumstances, in line with regulations made by the Scottish government. These regulations on direct payments have recently been published in draft for consultation, and propose that direct payments can be terminated if a person uses them for purposes outside their support plan or employs a family member to provide care in circumstances where this is prohibited.
The regulations also say that people will be ineligible for a direct payment if they are subject to particular criminal justice orders and makes clear that direct payments cannot be used on certain services, including homeless, domestic abuse, substance misuse or long-term residential care provision. Where a person is deemed ineligible to receive direct payments, the authority must provide a written explanation of why and offer them one of the other options (2, 3 or, if applicable, 4).
Section 6 of the Act places a duty on the local authority to involve other people, such as family members, in helping the person choose their self-directed support option or manage a direct payment, if the person needs assistance because of a mental disorder or difficulties in communicating caused by a physical disability. This must be with the person’s agreement. However, this provision does not apply where there is already a guardian or welfare attorney appointed to act on the person’s behalf, in which case the guardian or attorney should be supported to choose the SDS option and manage the person’s support.
The right not to have a personal budget
Option 3 is distinct from the other SDS options as an individual has decided the local authority will provide and manage the support services for them. During the scrutiny of the bill in the Scottish Parliament, independent living organisations questioned the inclusion of option 3, on the basis that this meant opting out of the philosophy of self-control. However, the option remains in the Act and there will be a need to monitor how it is used and with what impact on the level of self-directed support a person has.
In discussing the social care and support options, a local authority has to provide a written statement of the relevant amount a proposed self-directed support option will cost to the individual, to increase transparency.
Section 9 of the Act states local authorities must provide accessible information and support for people on the nature and effect of each of the self-directed support options, on how to manage their care and support once they have decided on their SDS option, and on organisations who can provide assistance in both regards.
Draft regulations and statutory guidance under the Act, published for consultation along with the direct payment regulations, make clear councils should signpost people to independent advocacy services, where appropriate, and also provide access to user-led information and support organisations. These provide services to assist people with assessment and the self-directed support process.
While the previous UK government set a target to have user-led organisations in every area of England by 2010, the Scottish government decided to not to set a similar target. Instead, small-scale capacity building projects have been funded by the Scottish government to facilitate the growth of peer-support organisations. These organisations are growing but a recent mapping exercise found they were available in a limited amount of areas across Scotland; the impact of these organisations and their relationship with the local authority will be key to the increase in self-directed support across Scotland.
The Scottish government has funded a self-directed support information and support database to enable service users to search for available sources of information and support, capturing a range of support organisations, providers and local authority contacts.
The government is planning further guides for service users and professionals to be read along-side the statutory guidance. The full Act will commence on 1 April 2014. The question remains, with just under a year to go, is Scotland ready for self-directed support?
James Blair is personalisation and self-directed support co-ordinator at Self Directed Support Scotland
Guide to direct payments and personal budgets