Scottish Government

DIRECT PAYMENTS
SOCIAL WORK (SCOTLAND) ACT 1968:SECTIONS 12B AND C
POLICY AND PRACTICE
GUIDANCE

Part 2: The Community Care and Health (Scotland) Act 2002

Section 7 of the Community Care and Health (Scotland) Act 2002 introduces a number of provisions, which amend section 12B of the 1968 Act. These provisions will help make direct payments more widely available and increase take up amongst disabled people who require community care and children's services.

New provisions commencing on 1 June 2003

18. From 1 June 2003 local authorities can no longer choose whether or not to make direct payments available to disabled adults and children who live in their area. Instead that discretion is replaced by a duty to offer direct payments to all who are potentially eligible (as defined by the Community Care (Direct Payments) (Scotland) Regulations 2003) to receive them. In essence this means that local authorities can no longer choose to make direct payments available only to certain groups of disabled people nor can they make them available only for certain services.

19. To receive direct payments consent must be given by the recipient of the payment. Where it is clear that the person who requires the services is unable to give the consent required, an attorney or guardian, given powers which would allow them to make decisions about direct payments, may give that consent instead. In the case of a disabled child (under the age of 18, but see below about direct payments for 16 and 17 year olds) who requires services under section 22(1) of the 1995 Act, a parent or a person with parental responsibility for the child, can give that consent. When considering making direct payments to a disabled 16 or 17 year old, local authorities must establish whether the young person can give the necessary consent before seeking consent from a parent, or a person with parental responsibility, for the young person. The local authority must establish for itself whether or not a person can give consent to direct payments.

20. In addition to being able to recruit staff directly and purchase services from private or voluntary sector providers, direct payments can now be used to purchase services from any local authority.

21. Direct payments can be made on a 'net' or 'gross' basis. Where they are made on a gross basis the local authority now has a legal mechanism for recovering any amount an individual has been assessed as being able to contribute.

22. Direct payments are still for the time being only available to disabled adults and children.

New provisions proposed for 1 April 2004

23. It is anticipated that from 1 April 2004 the duty to offer direct payments will be extended beyond disabled people to all community care and children's services client groups (with the exception of certain groups of people who may be excluded by regulations). This will make direct payments available to a range of people. For example, older people who need community care services because of frailty as well as people fleeing domestic abuse, people recovering from drug or alcohol problems, homeless people and children who require services because a parent is recovering from drug or alcohol problems.

24. This guidance does not give advice on how a local authority might implement this provision. Further guidance will be issued nearer the commencement date.