ANNEX A: GUIDE TO CURRENT LEGISLATION
78. This annex provides a short guide to each Act and set of Regulations which provide the law governing direct payments for social care. The legislation that enables self-directed support is contained within:
79. In addition to these "core" items of legislation the arrangements also relate to the following pieces of legislation:
The Social Work (Scotland) Act 1968
80. The Social Work (Scotland) Act 1968 ("the 1968 Act") contains a wide range of duties, responsibilities and powers related to social care in general and social care assessments in particular. Sections 12B and 12C of the 1968 Act place a duty on local authorities to make direct payments available to certain adults and children who wish to receive them. This includes people with disabilities. A detailed summary of the key sections that are relevant to direct payments are set out below:
- Section 12A of the 1968 Act places certain duties on local authorities before they provide the individual with social or community care. Amongst other things, it requires the local authority to conduct a formal assessment of an individual's needs for community care services, to take account of the individual's views and to consult a medical practitioner as part of that assessment. This process must be completed before the local authority can offer a direct payment or indeed any other method of support. Direct payments may only be offered to eligible adults who under section 12A of the 1968 Act, have been assessed as needing community care services
- Section 12AA and 12AB covers the right of carers to a carer's assessment. Section 12AA provides a right to carers to ask the local authority to undertake the carer's assessment. The carer's assessment is an assessment of the carer's ability to provide or continue to provide care. Although not formally stated in the legislation this may be where the carer feels that they are unable to cope. Once this has been requested, the local authority must comply with the request and undertake the assessment. Thereafter, if an assessment of the cared for person's needs is required, the local authority must take account of the carer's assessment when conducting the cared for person's assessment. Section 12AB covers situations where a carer provides or intends to provide a substantial amount of care on a regular basis. Under these situations the local authority has a duty to notify the carer that he may be entitled to request a carer's assessment
- Section 12B is the main section which deals with the rights and obligations related to direct payments and the process by which the local authority provides the direct payments. This section was not part of the Act when it was first introduced. Instead, it was inserted into the 1968 Act by Section 4 of the Community Care (Direct Payments) Act 1996. Section 12B sets out in detail the duties on local authorities and laws/procedures in relation to
- the circumstances under which a local authority can offer to provide a direct payment for community care services;
- contributions to and repayment of, direct payments by the cared for person;
- the rules on when and how consent can be granted for a direct payment by or on behalf of the cared for person;
- who can provide a community care service under a direct payment arrangement
- the levels of financial contributions permitted to be made by the cared for person in order to contribute to services where the bulk of the service is provided by the direct payment
- the scope for subsequent regulations. In particular, the 1968 Act allows further regulations to set down the categories of people who can and cannot be employed to provide a social care service under the direct payment, the circumstances where the local authority can terminate the direct payment and circumstances where payments can be made on behalf of the cared for person. It specifically prevents regulations to allow direct payments which would provide for residential accommodation.
- modifications to the definition of community care services in order to widen it to include services for children.
Children (Scotland) Act 1995
81. Section 22 (1) of the Act contains local authorities' duties to promote the welfare of children in need. Section 12B (1) of the 1968 Act provides that where a local authority have a duty to provide a service under section 22 (1) of the 1995 Act, the authority shall make to that person a direct payment in order to secure provision of that service.
The Community Care (Direct Payments) Act 1996 ("the 1996 Act")
82. This Act amended and updated the 1968 Act, adding the key sections 12B and 12C, which are summarised above.
Adults with Incapacity (Scotland) Act 2000
83. This sets out the arrangements under which a person can become a guardian or can have power of attorney for another person, make decisions and manage affairs on behalf of the cared for person. The requirement under the direct payments laws is that a person can only become a guardian by virtue of an order made under section 58 of the 2000 Act, or by virtue of section 88(1) of, and paragraph 1 of Schedule 4 to, the 2000 Act, and who has power to deal with a direct payment on behalf of the beneficiary. One of the legislative proposals put forward in this consultation is where a direct payment or other form of self-directed support is involved, to replace this link with an alternative arrangement.
Regulation of Care (Scotland) Act 2001 ("the 2001 Act")
84. Like the 1996 Act, this Act updated and amended the existing legislation contained in the 1968 Act. Section 70 made some amendments to Section 12B of the 1968 Act. The purpose of these amendments was to widen the eligibility to direct payments to particular groups of children as defined under section 22(1) of the Children (Scotland) Act 1995.
Community Care and Health (Scotland) Act 2002 ("the 2002 Act"
85. Section 7 in this Act introduced a number of provisions, which amend section 12B of the 1968 Act. These provisions have helped make direct payments more widely available and increased take up amongst people with a disability and older people who require community care and children's services.
86. In addition to being able to recruit staff and purchase support from private agencies or voluntary sector providers, the 2002 Act made it possible for direct payments to be used to purchase services from any local authority. Where direct payments are made on a 'gross' basis local authorities have been given a legal mechanism for recovering any amount an individual was assessed as being able to contribute.
87. Part 2 of the 2002 Act allows delivery of health services and some continuing health needs by direct payments if the local authority and NHS Board have arrangements to allow this to happen.
The Community Care (Direct Payments) (Scotland) Regulations 2003
88. From 1 June 2003 local authorities have been under a statutory duty, in terms of the Community Care (Direct Payments) (Scotland) Regulations 2003, as amended 2 ('the 2003 Regulations'), to offer direct payments to all who are potentially eligible, as defined by these Regulations.
89. The 2003 Regulations provided a number of follow-up regulations to the 1968 Act. The main purpose of the regulations is to clarify the groups which are not eligible to receive direct payments. The proposals to widen eligibility found later in this consultation would result in changes to these regulations.
90. The 2003 Regulations provided the detailed list of all of the people excluded from eligibility to direct payments. Examples include people who the local authority deem as being incapable of managing a direct payment, various categories of patients and various categories of people subject to court orders or released from prison. Where a person is over 18 and clearly unable to give consent, or is under the age of 18, Regulation 3 of The Community Care (Direct Payments) (Scotland) Regulations 2003 ('the 2003 Regulations') specifies certain categories of people who are able to give consent on behalf of the service user, namely those with parental responsibility, attorneys and guardians who have powers to manage direct payments on the user's behalf.
91. The Regulations define a 'person in need' by referring to the definition in Section 94(1) (b) of the 1968 Act. This might include people (adults or children) with any kind of disability (see below). The following groups of people are eligible to receive direct payments:
- Disabled adults to purchase community care services
- Disabled people aged 16 and 17 to purchase children's services
- Disabled people with parental responsibility to purchase the children's services their children have been assessed as needing
- Parents and people with parental responsibility for a disabled child to purchase the services the disabled child has been assessed as needing
- Children in need
- Disabled adults and 16 and 17 year olds to purchase housing support services
- Older people aged 65 years and over who are assessed as needing community care services due to infirmity or age, and
- Attorneys and guardians, with the relevant powers can receive direct payments on behalf of people who are unable to give consent to arranging their own services.
92. The 2003 Regulations, (made under Section 12B (1) (b) of the 1968 Act) also specify that direct payments may not be offered to certain people who are restricted by certain mental health or criminal justice legislation. People in these groups are required to receive specific community care services. Offering them direct payments in order to pay for those services would not give a sufficient guarantee that the person would receive the services required.
93. The following is an extract from the Regulations and provides the full list of individuals currently excluded from a direct payment by means of Regulations:
"Description of persons specified for the purposes of section 12B(1) of the Act
The description of persons specified for the purposes of subsection (1) of section 12B of the Act (persons who are not eligible for any direct payment) is-
(a) a person who does not fall within paragraph (b), of the definition of 'persons in need' in section 94(1) of the Act (interpretation);
(b) a person who appears to a local authority to be incapable of managing a direct payment, with or without assistance;
(c) a person who, in the case of a service under section 22(1) (promotion of welfare of children in need) of the Children (Scotland) Act 1995[7], is-
(i) a child in need aged less than 16 years; or
(ii) entitled to such a service in respect of a child in need, otherwise than as a parent of, or person having parental responsibility for that child;
(d) revoked
(e) a person who is subject to-
(i) a compulsory treatment order made under section 64(4) (a) (powers of the Tribunal on application under section 63: compulsory treatment order) of the 2003 Act that authorises the measure mentioned in section 66(1) (a) (measures that may be authorised) and in respect of which a certificate has been granted under section 127(1) (suspension of measure authorising detention); or
(ii) a compulsion order made under section 57A(2) (compulsion order) of the 1995 3 Act that authorises the measure mentioned in section 57A(8)(a) of that Act and in respect of which a certificate has been granted under section 127(1) (suspension of measure authorising detention) of the 2003 Act as applied by section 179(1) (suspension of measures) of that Act;
(iii) an emergency detention certificate granted under section 36(1) of the 2003 Act in respect of which a certificate has been granted under section 41(1) of that Act; or
(iv) a short-term detention certificate granted under section 44(1) of the 2003 Act in respect of which a certificate has been granted under section 53(1);
(f) a person who is subject to a compulsion order made under section 57A(2) (compulsion order) of the 1995 Act and a restriction order made under section 59 (restriction order) of that Act who has been conditionally discharged in accordance with section 193(7) (powers of the Tribunal on reference under section 185(1), 187(2) or 189(2) on application under section 191 or 192(2)) of the 2003 Act;
(g) a person who is subject to an order of a court under sections 57(2)(a), (b), (c) or (d)[12], 57A(2) or 57A(2) and 59 of the 1995 Act or who is required to submit to treatment for that person's drug or alcohol dependency or mental condition by virtue of a requirement of a probation order in terms of sections 228 to 230[13] of the 1995 Act;
(h) a person who is subject to a drug treatment and testing order imposed under section 234B of the 1995 Act[14];
(i) a person who is released on licence under section 22 of the Prisons (Scotland) Act 1989[15] or under section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993[16] and in either case is subject to a condition to submit to treatment for his mental condition or for drug or alcohol dependency;
(j) a person who is released on licence under section 37(1) of the Criminal Justice Act 1991[17] subject to a condition that he submits to treatment for his mental condition or for his drug or alcohol dependency;
(k) a person who is required to submit to treatment for his mental condition or drug or alcohol dependency by virtue of a community rehabilitation order within the meaning of section 41 of the Powers of Criminal Courts (Sentencing) Act 2000[18] or a community punishment and rehabilitation order within the meaning of section 51 of that Act[19];
(l) a person subject to a drug treatment and testing order imposed under section 52 of the Powers of Criminal Courts (Sentencing) Act 2000;
(m) a person who is absent from hospital with leave given in accordance with section 17 (leave of absence from hospital) of the 1983 Act;
(n) a person who is subject to after care under supervision (which expressions shall be construed in accordance with section 25A (application for supervision) of the 1983 Act[20]);
(o) a person in respect of whom there is in force a condition imposed in accordance with section 42(2) (powers of Secretary of State in respect of patients subject to restriction orders) or 73(4) (power to discharge restricted patients) (including such a condition which has been varied in accordance with section 73(5) or 75(3)) of the 1983 Act[21]; or
(p) a person in respect of whom there is in force a supervision and treatment order within the meaning given by Part I of Schedule 2 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991[22]."
The Mental Health (Care and Treatment) (Scotland) Act 2003
94. This Act was introduced after a comprehensive review of mental health legislation in Scotland. The purpose was to place the delivery of mental health services within a rights-based and patient-centred environment. The main link to direct payments is Part 7 which defines the procedures for compulsory treatment orders. Currently, people who are subject to certain compulsory treatment orders cannot receive a direct payment.
95. Regulation 45(13) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Subordinate Legislation) Order 2005 ( SSI 2005 no. 445) which amends regulation 2 of the 2003 Regulations
96. One of the government's proposals in this consultation is to remove the current exclusion which prevents people who with mental health problems who are subject to certain compulsory treatment orders, from directing their own support under a DP or SDS arrangement.
National Health Service Reform (Scotland) Act 2004 "the 2004 Act"
97. Under this Local Government act, Community Health Partnerships ( CHPs) were established as committees or sub-committees of a Health Board.
The Community Care (Direct Payments) (Scotland) Amendment Regulations 2005
98. These regulations made a relatively small amendment to the 2003 Regulations to make all persons aged 65 or over assessed as needing community care services because of infirmity or old age subject to the other exclusions specified in regulation 2(b) to (p) of the 2003 Regulations (regulation 2(2)).
Disability Equality Duty (2006)
99. The Disability Equality Duty came into force on 4 December 2006. This legal duty requires all public bodies to actively look at ways of ensuring that disabled people are treated equally. All of those covered by the specific duties must also have produced a Disability Equality Scheme.
Adult Support and Protection (Scotland) Act 2007
100. Section 63 of this Act amends direct payments legislation. The Act empowers local authorities to offer increased flexibility in tailoring individualised packages of support. The 2007 amendment regulations change the rules on employing close relatives for self-directed support under the 2003 regulations.
The Community Care (Direct Payments) (Scotland) Amendment Regulations 2007
101. From 12 November 2007, unless a local authority is satisfied that securing a service from such a person is necessary to meet the beneficiary's need for a service, or that securing the service from such a person is necessary to safeguard or promote the welfare of the child in need, a local authority may not allow certain close relatives to be employed to provide support services (the precise services to which this applies are specified in regulation 4 of the 2003 regulations as amended by the 2007 regulations).The 2007 regulations expand the list of close relatives of the beneficiary from which services may not normally be purchased. This is in order to reflect modern family set-ups and applies irrespective of where they live.