Scottish Government

March 2005

ISBN 0 7559 1196 2 (Web only publication)

This document is also available in pdf format (81k)

Executive Summary

The majority of the 37 respondents supported a change in direct payments legislation to:

• prevent employment of close relatives, whether they live at the same or different address to the direct payments recipient, (i.e. to remove the distinction of the place of residence of the close relative in whether they are eligible for employment through direct payments); but
• in exceptional circumstances to allow local authorities the flexibility to employ close relatives, regardless of their place of residence.

Some respondents suggested examples of possible exceptional circumstances which might usefully appear within new direct payments guidance. Such a list would be illustrative only, to emphasise the need for a flexible case-by-case approach to meeting an individual's assessed care needs. There were also responses suggesting an extension to the categories of close relative that appear in the legislation.

Introduction

This consultation invited views on proposals to adjust the rules which currently prevent direct payments recipients from employing certain categories of close relatives to provide their care.

The current legislation Community Care (Direct Payments) (Scotland) Regulations 2003 ( SSI 2003/243) prevents people using direct payments to secure services from their spouse or partner or certain categories of close relative living in the same household - (i) parent or parent in law; (ii) son or daughter; (iii) son in law or daughter in law; (iv) stepson or stepdaughter; (v) brother or sister; (vi) aunt or uncle; or (vii) grandparent. This general position remains important because of the very different relationships that a person would have with an employee and a family member, and the conflicts of interest that can result from employing a close relative. The current legislation does not prevent employment of a close relative who lives at a different address.

The consultation offered the opportunity for interested parties to let the Scottish Executive Health Department ( SEHD) Community Care Division know their thoughts about the types of circumstances in which it would be appropriate to allow close relatives to be employed. In particular, people were asked their views on proposals to give local authorities some discretion to allow the employment of close relatives in exceptional circumstances, when they are satisfied that it is necessary to meet the individual's needs. Two examples of exceptional circumstances were given in the consultation document.

This consultation was issued on 16 November 2004 and was closed on 8 February 2005.

We are grateful to everyone who took the time to respond to this consultation.

Responses

In total, 37 responses were received across the following categories:

All responses were allocated a reference number on receipt from DPCER1 to DPCER37 ( Annex 3 refers). Response DPCER4 from Direct Payments Scotland was circulated to 24 support organisations or user networks across Scotland.

The following analysis was made of the responses received. The findings are specific to the consultation exercise and do not necessarily reflect the weight or range of views within the population or sub populations as a whole, as the respondents have not been representatively or purposively sampled.

Findings

1. Should close relatives living at a different address to the direct payments recipient get direct payments?

2. Should close relatives living at the same address as the direct payments recipient get direct payments?

20 responses drew attention to the current differences between close relatives living at a different as opposed to the same address as the direct payments recipient.

Drawbacks in employing close relatives

Respondents agreed on the need for individuals to be given sufficient information regarding the drawbacks of employing close relatives in order to enable people to reach an informed decision. The following concerns were raised:

• Conflict of interests for employee/employer.
• A power imbalance being created.
• The upsetting and/or changing of family dynamics.
• The assessment process itself could put undue strain on relationships.
• The difficulty for a carer in reversing their decision if they realise they no longer wish or feel able to continue as an employee.
• Disciplinary matters may be difficult to manage e.g. individuals may find it difficult to sack or discipline a family member.
• Provision of respite for the family employee.
• New claimants may come forward to claim direct payments that are already providing unpaid support.
• Paying one family member but not others may stop other family members supporting the individual in need.
• Scope for family members to abuse the situation
• Families are not always aware of previous convictions of other family members and this could affect personal relationships.
• Interface with the benefits system.

Advantages in employing close relatives.

However, where exceptional circumstances exist, respondents agreed that this change in regulations would increase choice for those individuals and carers who are not able to receive the services they need through mainstream services. It was suggested that an independent carers' assessment could establish if the carer would like to provide this paid support and is not being unduly pressurised by other family members or interested parties. Users would also need to be assessed separately to enable them to be frank about their wishes.

3. Should persons (who are not close relatives) living in the same household as the direct payments recipient be regulated?

4. What possible exceptional circumstances for employment of close relatives have respondents suggested in addition to assessed needs related to terminal illness, rural area and ethnic minority groups?

Examples of exceptional circumstances were proposed, as follows:

• Where the individual has difficulty interacting with strangers e.g. where the person has dementia or an autistic spectrum disorder.
• Where close relatives are best qualified to meet complex care needs as a result of specialised knowledge and expertise already gained through caring for an individual. This would contribute to a consistently high quality service, delivered on an uninterrupted basis.
• Where a spouse or other family member has sacrificed paid work, to cover staff sickness, staff annual leave.
• Where a spouse or close relative is available late night or early morning for administering medication.
• Where there is an issue of the infringement of the right to personal privacy.
• For disabled recipients who share accommodation with friends. This flexibility may be particularly important where a young disabled person is striving to become independent and fully included in the social environment of their university/college.

There was general consensus that the guidance should allow social workers to exercise flexibility and professional judgement as to what constitutes exceptional circumstances and that the examples given might not cover all cases where exceptional circumstances might apply.

Specific issues raised:

5. Terminal illness

This is the first example of a possible exceptional circumstance given in the consultation document. Concerns raised included the following:

• The support a carer or close relative might need themselves would need to be sensitively acknowledged.
• The difficulty in classifying terminal illness.

6. Rural and remote recipients, ethnic minority needs

These are further examples of possible exceptional circumstances given in the consultation document, perhaps where another suitable care provider is not available within the same rural area or able to deliver services to meet minority ethnic needs.

Concerns regarding this example were as follows:

• If direct payments to relatives are eligible because of rural locations, this may be interpreted as inequitable for urban dwellers; in urban areas there may still be scarce or limited choice of provision.
• A lack of resources related to geography should not be confused with LA responsibilities for provisions and for quality, which apply to both urban and rural areas.
• In rural and remote areas, particularly in island settings, the employment of relatives of the same or another household may be the only way to provide a service.
• The direct payments recipient should be able to demonstrate that they have made significant attempts to recruit before employing a close family member.

7. Capacity

Concerns were raised about situations where a close relative who is a guardian or attorney under the terms of the Adults with Incapacity (Scotland) Act 2000 might be being considered for employment. It was suggested that advocacy will have an important role in deciding what best meets the incapable adult's needs, and that developing policy to protect vulnerable adults needs to consider employment of close relatives for incapable adults.

8. Need for further guidance

Many respondents underlined the need for further guidance.

9. Definition of close relative

There was support for extending the definition of close relatives covered by current legislation.

Conclusions

There was support for a change in legislation to give local authorities the flexibility to decide whether exceptional circumstances apply to the rules preventing employment of close relatives living in the same household as the direct payments recipient. This is providing that essential safeguards and monitoring mechanisms are in place.

Because of the nature of family relationships, respondents also called for rules to prevent employment of close relatives living at a different address to the recipient, except in exceptional circumstances. In effect, this removes the distinction of the place of residence of the user and relative, and prevents close relatives at any address from being employed unless under exceptional circumstances.

Respondents also supported an extension to the current definition of close relative.

A local authority's final judgement of whether circumstances are exceptional will need to be based on thorough and confidential consultations and risk assessments of individual user's, family's, and carer's needs and perspectives. Local authorities must refuse to authorise any arrangement about which they have any doubts that it would best meet individual users' needs.

Circular 3/2005 revised paragraphs 80 and 81 of the 2003 Guidance on employing close relatives, spouses and partners to reflect the present law provided in regulation 4 of the Community Care (Direct Payments) (Scotland) Regulations 2003 ( SSI 2003/243) (the 2003 Regulations) and section 12B (3) of the Social Work (Scotland) Act. At present local authorities are unable to apply an exception to the rule about employing close relatives even if they are satisfied that such employment is necessary to meet an individual's needs. Officials are currently working on a proposed change in primary legislation to introduce the flexibility in the legislation that the consultation supports.

Annexes

( Annex 1 -consultation papers, Annex 2 -distribution list and Annex 3 - respondee list)

Annex 1: Consultation

Dear Colleague

DIRECT PAYMENTS - RULES ON EMPLOYING RELATIVES

This letter invites your views on proposals to adjust the rules which currently prevent people from using direct payments to employ close relatives to provide their care.

Direct payments, which are already available to disabled people to buy community care and children's services that they are assessed as needing, will also be made available to older people from April 2005. This change was noted in Community Care Circular CCD 1/2004, published on the internet at: http://www.show.scot.nhs.uk/sehd/publications/CC2004_01.pdf

The Scottish Executive remains committed to developing direct payments as a way of giving service users choice and control over the care services they receive. At the same time as the extension to older people, the Executive is considering a change in the rules on whom a person may employ to provide their care.

The legislation currently prevents people using direct payments to secure services from their spouse or partner or a close relative living in the same household. A close relative in this context is a parent, parent in law, aunt, uncle, grandparent, son, daughter, stepson or daughter, brother, sister or the spouse or partner of any of the foregoing. This general position remains important because of the very different relationships that a person would have with an employee and a family member and the conflicts of interest that can result from employing a close relative. The rules do not preclude employing a relative who lives at a different address.

However, the Executive is considering relaxing these conditions slightly, to give local authorities some discretion to allow the employment of close relatives in exceptional circumstances, when they are satisfied that this is the only way to meet the individual's needs. For example:

• to deliver short term care to a terminally ill person in the final stages of their life where it would be empowering and dignifying for the user and family; or
• where another suitable care provider is simply not available in the same rural area or minority ethnic community.

We would be interested in your views on this proposal and the types of circumstances in which it would be appropriate to allow close relatives to be employed. If you are aware of anyone not on the enclosed copy list who may have an interest in responding to this consultation, it would be appreciated if you would draw it to their attention.

Annex A provides details on responding to this consultation and you should ensure that Annex B, the Respondent Information Form, is completed and returned along with your response. Further information on the Scottish Executive consultation process is contained in Annex C.

Yours sincerely

Sarah Stewart

SARAH STEWART
Scottish Executive Health Department
Community Care Division 1

ANNEX 1A

Responding to this consultation paper

We are inviting written responses to this consultation paper by Tuesday 8 February 2005. Please send your response to: Dorothy Warren at dorothy.warren@scotland.gsi.gov.uk or by post to Community Care Division 1, Room 2.E.R, St Andrew's House, Regent Road, Edinburgh EH1 3DG.

If you have any queries contact Dorothy on 0131 244 4778.

We would be grateful if you could clearly indicate in your response which questions or parts of the consultation paper you are responding to as this will aid our analysis of the responses received.

This consultation, and all other SE consultation exercises, can be viewed online at http://www.scotland.gov.uk/consultations. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.

The Scottish Executive now has an email alert system for SE consultations ( SEconsult). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new SE consultations (including web links). SEconsult complements, but in no way replaces SE distribution lists, and is designed to allow stakeholders to keep up to date with all SE consultations activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.

Access to consultation responses

We will make all responses available to the public in the Scottish Executive Library by 28 February 2005 unless confidentiality is requested. All responses not marked confidential will be checked for any potentially defamatory material before being logged in the library or placed on the website.

ANNEX 1B

ANNEX 1C

The Scottish Executive Consultation Process

Consultation is an essential and important aspect of Scottish Executive working methods. Given the wide-ranging areas of work of the Scottish Executive, there are many varied types of consultation. However, in general Scottish Executive consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.

While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body. Consultation exercises may involve seeking views in a number of different ways, such as public meetings, focus groups or questionnaire exercises.

Typically, Scottish Executive consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the area of consultation, and they are also placed on the Scottish Executive web site enabling a wider audience to access the paper and submit their responses Copies of all the responses received to consultation exercises (except those where the individual or organisation requested confidentiality) are placed in the Scottish Executive library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4552).

The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process. Depending on the nature of the consultation exercise the responses received may:

indicate the need for policy development or review
inform the development of a particular policy
help decisions to be made between alternative policy proposals
be used to finalise legislation before it is implemented

If you have any comment about how this consultation exercise has been conducted, please send them to Dorothy Warren, whose contact details are above.

Annex 2: Distribution List

Original distribution list
Lsit of Recipients

Age Concern Scotland

Alzheimer Scotland - Action on Dementia

Association of Directors of Social Work

Capability Scotland

Church of Scotland Board of Social Responsibility

Citizens Advice Scotland

Clerk to Health Committee

Commission for Racial Equality

Community Care Providers Scotland

Convention of Scottish Local Authorities

Crossroads Scotland

Direct Payments Scotland

Direct Payments for Older People Working Group

Disability Rights Commission

ELCAP Ltd

Enable

Equal Opportunities Commission

Health and Social Work Professional Bodies

Help the Aged

Local Authority Chief Executives

Local Authority Directors of Social Work/Chief Social Workers

Local Authority Head of Children's Services

Local Authority Directors of Finance

Local Authority Directors of Housing

NHS Board Chief Executives

People First

Quarriers

RNIB Scotland

RNID Scotland

Scottish Consortium for Learning Disabilities

Scottish Churches Parliamentary Office

Scottish Council on Deafness

Scottish Human Services Trust

Scottish MEPs

The Bodleian Library, Oxford

The British Library

The Library of Trinity College, Dublin

The University Library, Cambridge

The Nation Library of Scotland

The National Library of Wales

SCVO

United Kingdom Home Care Association

Values into Action

Annex 3: Respondee List

Responses to Direct Payments close relatives consultation - only details those who have given permission to do so

DPCER1. Duncan MacAulay, City of Edinburgh Council

DPCER2. Kenneth Leinster, Fife Council Social Work Service

DPCER3. Shirley McHugh, Argyll & Bute Council

DPCER4. Richard Brewster, Direct Payments Scotland

DPCER5. Paul Edwards

DPCER6. Robert White

DPCER7. John Ireson, Skill Scotland

DPCER8. Vanessa Dallas-Ross, Dundee Direct Payments Support Service

DPCER9. Diana Findlay

DPCER11. Mr Jim Jackson, Alzheimer Scotland

DPCER12. Anonymous

DPCER13. Niccy Kershaw, Borders Direct Payment Agency

DPCER14. Fiona Collie, Carers Scotland

DPCER16. Ellenor Anwyl, Contact a Family Scotland

DPCER17. Jim Dickie, North Lanarkshire Council

DPCER18. Margaret Petherbridge, Falkirk Council

DPCER19. Janice Toner, Renfrewshire Council

DPCER21. Sandy Riddell, Highland Council

DPCER22. Margaret Petherbridge, ASDW Direct Payments Network

DPCER23. Harry Garland, Orkney Islands Council

DPCER24. Mr David Burke, Perth and Kinross Council

DPCER25. Alan Baird, Dundee City Council

DPCER26. Innes Turner, East Renfrewshire Council

DPCER27. Alexis Jay, West Dunbartonshire Council

DPCER28. Mrs J Thompson, South Ayrshire Council

DPCER29. Susan Anderson, Moray Council

DPCER30. Peter Hunter, UNISON

DPCER31. Mike Shire, Dumfries and Galloway

DPCER32. Clare Hebbert, Clackmannanshire Social Services

DPCER33. Alex Davidson, South Lanarkshire Council

DPCER34. Robert Peat, Angus Council

DPCER35. Anne Cullinane

DPCER36. Mrs Karen Fergus

DPCER37. Mr Clement Newman