Scottish Government

SELF-DIRECTED SUPPORT (SCOTLAND) BILL

PARTIAL REGULATORY IMPACT ASSESSMENT

Introduction

1. Under Scottish Government rules any piece of legislation must include a consideration of the potential impact of the changes on the relevant sector. This partial Regulatory Impact Assessment (RIA) provides information on the options that have been considered in relation to the Government's proposed legislation on self-directed support. You can access the main consultation document at the following hyperlink:

http://www.scotland.gov.uk/Publications/2010/03/23102019/0

2. We invite your comments on the assumptions made in this document; on the costs and benefits associated with the Bill as a whole and each of the main proposals within the Bill; on the sectors and groups affected; and on the regulatory impact of the proposals. We also encourage you to send in your own evidence, financial information and data. We will take account of this evidence along with the views that you provide to develop a final RIA which would accompany any legislative proposals brought forward to the Parliament.

Responding to the consultation

3. The Self-Directed Support Team welcomes responses to this consultation paper by Wednesday 23 June 2010. Please send your response with the completed Respondent Information Form to:

selfdirectedsupport@scotland.gsi.gov.uk

or

Kenneth Pentland

Self Directed Support Team

Adult Care and Support Division

2ER, St Andrews House

Edinburgh

EH1 3DG

If you are responding to the Partial RIA only please make this clear in your covering e-mail or letter.

The key questions on which we would welcome views are as follows:

a) In general, what are your views on the costs and benefits associated with the Bill as a whole and with the specific aspects such as the opt out proposals and extension of DPs to various user groups?

b) What are your views on the likely change in uptake of direct payments and self-directed support arising from the proposals?

c) What do you think the impact will be on:

• People who have social care and support needs?
• Local authorities?
• Providers of social care and support and the social care market?
• Others with an interest in these proposals?

d) What are your views on the likely impact on the community care and carers' assessment process?

e) Are you aware of additional costs, benefits or impacts that have not been identified as part of this initial assessment?

f) What evidence in the forms of data, statistics, financial or other information, can you provide to help to inform the development of the legislative proposals?

If you have any queries contact Kenneth Pentland on 0131 244 5455

Handling your response

4. We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. Please complete and return the Respondent Information Form as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential, and we will treat it accordingly.

5. All respondents should be aware that the Scottish Government are subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

Next steps in the process

6. Where respondents have given permission for their response to be made public and after we have checked that they contain no potentially defamatory material, responses will be made available to the public in the Scottish Government Library. These will be made available to the public in the Scottish Government Library by 14 July 2010 and the Scottish Government consultation web pages on 21 July 2010. You can make arrangements to view responses by contacting the SG Library on 0131 244 4552. Responses can be copied and sent to you, but a charge may be made for this service.

What happens next?

7. Following the closing date, all responses will be analysed and considered along with any other available evidence to help us reach a decision on the Self Directed Support (Scotland) Bill. We aim to issue a report on this consultation process shortly after the end of the consultation.

Comments and complaints

8. If you have any comments about how this consultation exercise has been conducted, please send them to:

Kenneth Pentland

Self Directed Support Team

Adult Care and Support Division

2ER, St Andrews House

Edinburgh

EH1 3DG

Or e-mail: selfdirectedsupport@scotland.gsi.gov.uk

Section 1: Title of Proposal

Proposed Self-directed Support (Scotland) Bill

Section 2: Purpose and Intended Effect

Objectives

9. The purpose of the Self-directed Support (Scotland) Bill is to consolidate and extend the powers of existing statute relating to direct payments (DPs) and other forms of self-directed support for health and social care services. The legislative proposals aim to provide a modern legal framework for the development of social care and support that gives more power and control to citizens. They build on existing statute that enables people who are eligible to purchase their own support to do so in place of having services arranged for them.

10. The main consultation document proposes the following objectives for the Bill:

• To consolidate existing statute related to direct payments, making the legal rules clearer to both service users and the organisations who deliver care; to introduce the term "self-directed support" into statute and to define what is meant by self-directed support and direct payments.
• To amend the duty on councils when they offer a direct payment to ensure that the provision of either self-directed support or a direct payment is the default position. In other words, people will no longer be asked to "opt-in" to this method. Instead, they will be asked to "opt-out".
• To widen eligibility and remove current exclusions on direct payments for carers; those who are granted a leave of absence from hospital whilst on a Compulsory Treatment Order and for the purchase of residential care.
• To remove the requirement for those who are deemed to lack the capacity to consent to a direct payment arrangement to have in place formal Guardianship or Power of Attorney. Instead, the decision on whether an individual should manage a direct payment on a cared for person's behalf would rest with the local authority, where more formal arrangements (Guardianship or Power of Attorney) are not already in place.

Background

11. Self-directed support is a term which describes a variety of tools to give individuals and their family or carers greater choice about the way that support is provided to them. The choice may include taking a direct payment - so-called because it involves a payment direct into a bank account controlled by the individual so that they can employ their own support - having a direct payment managed by a third party, or directing the available budget to arrange support from the local authority or from a commissioned provider - also known as an individual budget. Taken together, these methods of obtaining social care have become known as the personalisation of social care services.

12. In recent years the Scottish Government have sought to encourage greater personalisation of services. This reflects the shifting expectations of many people in society that they should be able to exercise choice and control over any support they may need. Consultation with people who use community care services and the groups which represent them have suggested that they want to remove existing barriers to self-directed support, so that all people who should have access can have access to a direct payment or another form of self-directed support. There is research evidence that demonstrates the positive benefits to individuals of having more direct control over the support they need. These include the ability to arrange flexible support that allows greater independence, more opportunities to participate in everyday activities, and improved health and wellbeing. [1]

Statistics

13. There has been a steady increase in the number of people in receipt of direct payments in Scotland. In 2008/09 there were 3,017 clients receiving direct payments. However, direct payments remain a fairly small portion of overall social care and support provision. For example, the 3,017 clients in 2008/09 compares with 68,334 home care clients receiving a service as at the last week in March 2009. There is variation in the use of DPs between the different client groups for social care. Direct payments remain more common amongst physically disabled people compared to other client groups such as those with learning disabilities and those with mental health problems. 47% of people receiving direct payments in 2008/09 had a physical disability, 26% had a learning disability and around a quarter were aged 65 or over. Take up amongst older people remains quite low compared to younger age groups.

14. Over the same period (2000/01 to 2008/09) the value of payments increased by almost £30.9 million, from £2.1 million in 2000/01 to around £33 million in 2008/09. Again, to put this into context, Scottish local authorities' total net expenditure on social work services in 2008/09 was £2.7 billion (of which £1.9 billion was spent on community care). Total net expenditure on social care and all other social work-related services for older people in 2008/09 stood at £1.2 billion; adults with physical or sensory disabilities £180 million; adults with learning disabilities £426 million; and adults with mental health needs £89 million.

http://www.scotland.gov.uk/Topics/Statistics/Browse/Local-Government-Finance/PubScottishLGFStats/Q/EditMode/on/ForceUpdate/on

15. The average value of direct payments in 2008/09 was approximately £12,800; however around 46% of DP packages were for sums of less than £5000. Some further detail on the different levels of DP packages is provided below.

Table 1: Number of direct payment packages by banded value of package, 2008/09

16. On average, there were 20 hours per week in a direct payment package in 2008/09. Further detail, including breakdowns at local authority area are available from the Scottish Government Statistics web pages:

http://www.scotland.gov.uk/Topics/Statistics/Browse/Health/Publications

http://www.scotland.gov.uk/Topics/Statistics/Browse/Health/Data/DirectPayments

Rationale for government intervention

17. Self-directed support has a role in supporting the Government's overarching aim of growing the Scottish economy. It supports the empowerment of individuals to gain equality of opportunity and sustain their citizenship. It also contributes to improving health and well-being and tackling health inequality. Single Outcome Agreements between the Scottish Government and local authorities provide a framework for working together, with the common ambition of improving the quality of life and opportunities in life for people across Scotland. The strong focus on outcomes associated with the SDS Bill support the wider government agenda of working towards better outcomes.

18. The benefits of self-directed support, and particularly direct payments, are clear. However, despite a steady increase over the last 10 years, the use of direct payments for social care remains low. The Scottish Government wants to build on the achievements made to date, remove any unnecessary barriers put in place by existing legislation and provide a clear and consistent framework to allow for development in the future. Legislation is part of the Government's wider strategy on self-directed support, which is also subject to public consultation:

http://www.scotland.gov.uk/Publications/2010/02/05133942/0

19. If the legislation is not enacted then there is a risk that the wider range of client groups will continue to face barriers to the use of self-directed support for their social care and will be prevented from exercising their own choice over their care and support package. There may continue to be confusion and disparity amongst service providers as to their obligations under direct payments.

Section 3: Consultation

Consultation within government

20. In the weeks prior to the publication of this partial RIA and the main consultation document which accompanies it, initial discussions on the likely impact of the Bill were held with Scottish Government colleagues from relevant policy teams and from analytical services. Discussions will continue within the Scottish Government and amongst all of the key stakeholder groups during the course of the consultation.

Public consultation

21. A roundtable reference group on self-directed support, which included the Convention of Scottish Local Authorities (COSLA), the Association of Directors of Social Work (ADSW),representatives from the third sector, service providers and service users, was convened in June 2008 by the Scottish Government to consider a strategy to increase the uptake of self-directed support. The reference group discussed the option of bringing forward legislation and proposals for the content of that legislation.

22. In addition to the consultation on this proposed Bill, the Government is conducting a public consultation on a draft strategy for self-directed support.

23. Finally, prior to the formal consultation process associated with this partial RIA, Scottish Government officials undertook a number of locally based consultation events and specific events for political groups during 2009. One of the aims of those events was to explore the potential content of a Bill and how that might help deliver manifesto commitments relating to direct payments. These events included informal discussions with most local authorities, and with a number of user led and third sector organisations.

24. Discussions held up to this point revealed that some users were unclear about the rules and obligations as set down in existing legislation. Some client groups are still excluded from access to DPs, partly because of assumptions and attitudes about their ability to direct their own support. The publication of comprehensive national guidance in July 2007 improved this situation but it was suggested that there may be support for a Bill that makes clear provision for individual choice, based on stated principles, in keeping with Human Rights and Equality legislation.

25. The current public consultation will run until 23 June 2010 and is intended to gather views on the Government's proposals in relation to a new Bill on self-directed support. The responses (and a summary) will be published in July 2010.

Key questions on which we would like to hear your views

26. The key questions on which we would welcome views are as follows:

a) In general, what are your views on the costs and benefits associated with the Bill as a whole and with the specific aspects such as the opt out proposals and extension of DPs to various user groups?

b) What are your views on the likely change in uptake of direct payments and self-directed support arising from the proposals?

c) What do you think the impact will be on:

• People who have social care and support needs?
• Local authorities?
• Providers of social care and support and the social care market?
• Others with an interest in these proposals?

d) What are your views on the likely impact on the community care and carers' assessment process?

e) Are you aware of additional costs, benefits or impacts that have not been identified as part of this initial assessment?

f) What evidence in the forms of data, statistics, financial or other information, can you provide to help to inform the development of the legislative proposals?

Section 4: Options

27. There are 3 main options:

Option 1 - do nothing

28. This would retain the status quo. There is likely to be continued confusion amongst client groups and providers as to their rights and obligations under direct payments legislation. This legislation would continue to be spread over a number of Acts and relate to direct payments only. A variety of client groups, such as carers, would continue to be excluded from direct payment and SDS approaches. This would not progress the move towards better outcomes for individuals.

Option 2 - introduce a Bill that consolidates existing statute related to direct payments ONLY

29. The Government's view is that the current statute on direct payments is out of step with practice, will not support Government and user groups' expectations and is unclear to practitioners and citizens. Under this option, existing law on direct payments would be clarified and consolidated in one place, making the legal rules clearer to both service users and the organisations who deliver care. However, the Bill would go no further and would not address the shift to an outcomes focused approach that gives individuals a choice in managing their support beyond direct payments.

Option 3 - introduce a Bill that achieves all the objectives as set out at paragraph 10

30. This is the Government's preferred option and takes full advantage of the opportunities offered by a Bill on self-directed support. We plan to undertake work to model the potential effects.

31. Each objective is dealt with individually in the following paragraphs:

To consolidate existing statute related to direct payments, making the legal rules clearer to both service users and the organisations who deliver care; to introduce the term "self-directed support" into statute and to define what is meant by self-directed support and direct payments

32. Option 2 is to consolidate the law and go no further. However, beyond this, the Government wants to set for the first time a clear and understandable legislative framework for self-directed support more generally, focusing on providing the rules and obligations which would support practitioners in their aim to provide better outcomes for individuals.

33. There are two main intentions behind the framework proposal. The first is to set down in law the governing principles that each party in the social care assessment process should follow when it comes to agreeing the method by which individuals will obtain their social care. The second is to provide clear and robust processes by which decisions can be made on the appropriate method of obtaining care. The framework will make it clear that direct payments and individual budgets are two options by which individuals can direct their own social care, with "provided" services as a third option in the set of three.

34. Together, the consolidation and framework will improve and modernise the legislative context in a field which we expect to develop and progress in coming decades. It will ensure that local authorities, social care providers and clients have a clear set of rules by which to manage their social care provision in a rapidly developing context of personalised social care services. It will take existing law, which is framed largely on the basis of what cannot be done, and provide a positive framework of rights and responsibilities with appropriate exclusions retained.

To amend the duty on councils when they offer self-directed support/direct payments to ensure that the provision of SDS/DPs is the default position. In other words, people will no longer be asked to "opt-in", they will be asked to "opt-out"

35. Currently, the law places a duty on local authorities to offer a direct payment to eligible groups following a formal assessment. In reality, this can often mean that the individual has a right to opt in to direct payments but that the traditional method of obtaining care - community care services provided direct to the individual and paid for by the local authority - remains as the "default" position.

36. Despite this duty, it has been suggested that people who use services, and those assessing need are not aware of the option of a direct payment. It is therefore likely that the broader self-directed support options would be limited by similar constraints. One view is that the law should be changed to make SDS, or possibly more specifically the direct payment option, the preferred route of service delivery that people should have to opt out of, not opt into. However, a change from opt in to opt out would not remove the right of individuals to choose options other than a direct payment. It would ensure that clients were presented with this option as a matter of course and it would embed self-directed support into the assessment process. In line with existing legislation, the local authority would still have the power to provide a service without carrying out an assessment where this was considered necessary, and the opt-out would only apply at the point of assessing need and agreeing how these could be met.

37. The precise impact of making this change depends on whether the opt out is an opt out to direct payments or to self-directed support more generally and respondents may wish to provide views on the relative impacts of each option.

38. The intended effect of this change - whether it is an opt out of DPs or an out out of SDS - is to provide local authorities with a clear process by which to allow larger numbers of people than is currently the case to opt for either an individual budget or a direct payment. This should translate to an increase in the number of support packages for which funding is allocated at an individual level, by an individual budget or direct payment arrangement, and not delivered through block contracts.

39. One way to increase choice is to legislate to ensure that the social care assessment process requires local authorities to present a balanced set of options on the way in which support may be acquired for an individual. This option would define the available choices through self-directed support and ensure that these are afforded equal place in the set of options provided to individuals.

40. However, the preferred option is to legislate to ensure that the last stage of the social care assessment process requires local authorities to provide individuals with information on self-directed support and asks the individuals if they would prefer to opt-out of directing their own support or, alternatively, a direct payment. This would mean that self-directed support, whether that is an individual budget or a direct payment, becomes the preferred method of obtaining support unless individuals choose to opt out of the arrangement.

To widen eligibility and remove current exclusions on direct payments for the following client groups and situations: carers; those who are granted a leave of absence from hospital whilst on a Compulsory Treatment Order; and for the purchase of residential care

41. This would extend eligibility for DPs/SDS to a range of client groups who are currently excluded.

• Carers

42. There are an estimated 657,000 unpaid carers in Scotland, accounting for around 13% of the population. The Community Care and Health (Scotland) Act 2002 affirms that carers who intend to or provide a 'substantial' amount of care on a 'regular basis' are entitled to an assessment of their ability to provide or to continue to provide care ('carer's assessment'), independent of any assessment of the person they care for. In England and Wales, since 2001 carers have been eligible for direct payments in place of the services they have been assessed as needing. In Scotland the law does not currently allow for direct payments to be made to carers in their own right.

43. The Government proposes to amend legislation in order to provide a power to local authorities to provide support, including direct payments, to carers following a carer's assessment. This would only be where that support/direct payment would help to sustain the carer in their role and prevent the aggravation of the needs of both the carer and the cared for person. It would not provide for wide-ranging services for carers.

44. One option is to impose a duty on local authorities to provide direct payments/SDS to carers. This would allow for greater support and assistance to carers. However, a duty would require local authorities to provide this regardless of circumstances, need or desire.

45. The preferred option, however, is to provide a power to local authorities to provide DPs/SDS to carers. This recognises the role of carers, allows local authorities to support them in this role where necessary, but does not make carers core service users of social care. This would give local authorities the flexibility to provide for targeted and supportive interventions.

• Those who are granted a leave of absence from hospital whilst on a Compulsory Treatment Order

46. Currently, the law prohibits people who are subject to a compulsory treatment order from receiving a direct payment, where the measure authorising detention in a hospital has been temporarily suspended. The proposal is that local authorities should be provided with a power to offer direct payments to this user group. This would ensure that the local authority would be able to have regard to the known wishes of the individual but would retain the right to refuse a direct payment where it was deemed to be inappropriate under the legislation.

47. This would remove an exclusion which we see no compelling reason to retain. Recent changes to English and Welsh legislation have already granted local authorities a power to make direct payments to individuals on short term absences from hospital.

• For the purchase of residential care

48. When direct payments first emerged they were seen by many as a way for younger people to leave long term residential care. They are still seen as a way to help people to live independent lives and a key part of the Government's priorities to shift the balance of care. However, DPs/SDS are also a method to ensure better outcomes for people whatever these may be, and to support the principles of client control and client influence.

49. Individuals assessed as needing residential care already have a choice of care home but the local authority contracts with the provider for the parts it funds. At present direct payments cannot be used to purchase residential care for any longer than a period of 4 weeks in any 12 month period. This is to cover very short periods of respite.

50. One option would be to extend this time period to cover, for example, end of life care and situations where individuals want to make use of a direct payment arrangement. This may be a period of 3 months, 6 months or 9 months. The main advantage is that it would increase the flexibility provided to local authorities and individuals but the restriction on long term care would be retained.

51. However, the preferred option put forward for consultation is to remove the current restriction altogether. Local authorities would be able to provide direct payments to individuals of all ages who wished to use them, so that they can purchase their own care home place. As with social care and support packages provided to individuals who live in their own home, individuals would be able to take on responsibility for managing the direct payment contribution to their residential care package and directing their care needs.

52. The Government wants to encourage debate on this change and on the potential regulatory and other impacts on local authorities and on the residential care sector, and welcomes views. Further information: the arrangements for free personal and nursing care are available on the Scottish Government's website at:

http://www.scotland.gov.uk/Topics/Health/care/17655

Statistics on care homes are available at:

http://www.scotland.gov.uk/Topics/Statistics/Browse/Health/Publications

http://www.scotland.gov.uk/Topics/Statistics/Browse/Health/Data/CareHomes

To remove the requirement for those who are deemed to lack the capacity to consent to a direct payment arrangement to have in place formal Guardianship or Power of Attorney. Instead, the decision on whether an individual should manage a direct payment on a cared for person's behalf would rest with the local authority, but only where more formal arrangements (Guardianship or Power of Attorney) are not already in place

53. The law requires all eligible adults to give consent to receiving direct payments or, if they lack capacity to do so, to have the consent of their nominated attorney or guardian appointed under the Adults with Incapacity (Scotland) Act 2000.

54. The intention of the proposed change is to make it possible for direct payments for an adult with incapacity to be paid to a person chosen by a local authority in cases where powers of attorney or guardianship are not in place.

55. One way of doing this would be to allow withdrawers authorised by the Office of the Public Guardian under their Access to Funds Scheme to access the DP. Another option would be to extend eligibility to other persons, either specified by way of regulations or chosen by the local authority in some other way. In all cases, if a guardian or attorney exists they should be the ones eligible to consent to and manage the DP.

Section 5: Costs and Benefits

General Costs and Benefits

56. The purpose of this partial RIA is to set out an initial assessment of the costs and benefits, to prompt discussion and allow further analytical work to be undertaken in order to arrive at final conclusions in time for the Introduction of any Bill into the Scottish Parliament.

57. There are a range of benefits of self-directed support, and particularly direct payments, in terms of increased choice and more control for the individual. For individuals the opportunity of SDS/DP allows for more flexible support, greater independence, more opportunities to participate in everyday activities, and improved health and wellbeing.

58. In terms of financial cost "per hour" practice to date has shown that the cost of a direct payment in place of a service can be at the same or at a lower rate than that service. It is for local authorities to determine direct payment rates. Further analysis may be complicated by the argument that take-up rates are influenced by the financial rate of the DP. In other words, the principle that the enthusiasm for a DP-funded service will inevitably be tied to the rate at which the council offers the DP compared to the "provided" service.

Sectors and groups affected

59. The sectors and groups that may be affected by any changes to legislation on DPs and self-directed support more generally are as follows:

• individuals who have an assessed need for social care provided in their own home, to help them to leave their home to take up social or education opportunities, or provided in a residential setting;
• individuals who provide care and support;
• Scotland's 32 local authorities in their role in assessing people's social care needs, in procuring care and support and in some cases providing social care and support direct to individuals;
• third sector organisations who provide social care and support;
• businesses who provide social care and support;
• SDS Support organisations and user-led support organisations funded by local authorities to provide advice, support and advocacy services to individuals who have SDS/DP packages or individuals who are considering SDS/DPs; and
• the NHS, on whom the impact is likely to be positive in terms of things such as hospital admissions and the effect of healthier lives.

60. For some of the specific proposals, the following may be affected:

• carers;
• residential care homes;
• individuals who are granted a leave of absence from hospital whilst on a Compulsory Treatment Order;
• individuals who have an assessed need for social care but who are unable to provide consent on their own behalf and the families and friends of those individuals; and
• the Office of the Public Guardian.

Benefits

61. The main benefit for people that would stem from an increase in both direct payments and individual budgets is greater influence and control for those individuals over their care and support package and, arguably, better health and well-being as a result. There may be additional financial benefits in terms of controlling health care expenditure that might be incurred as a result of people remaining healthier longer; and, for those for whom it may not be the best way to support their health and well being, avoiding or delaying the need for individuals to move into residential care.

62. The main benefits to local authorities are that they meet the care needs outcomes of people who live in their area; that they ensure an informed discussion with social care clients as to the best method of providing their care; and, where personal assistants are employed, that they may see reductions in administrative costs associated with the more traditional form of support.

Costs

63. The ongoing development of social care means that direct payments should not stand alone but should be progressed within the context of overall service strategies and improved approaches to service delivery, all designed to promote the aim of independent living.

Direct payments and financial costs: the cost neutral principle

64. Direct payments are offered in place of a commissioned service, usually at a rate that allows individuals to purchase a service of equivalent standard, and as such should be cost neutral. They are a means to individually purchase the support that would otherwise be arranged by the local authority, and they should be met from within existing overall resources. This means that any increase in the use of either direct payments or individual budgets and any accompanying decrease in "provided" support should be broadly cost neutral in terms of financial cost to the public sector.

65. For local authorities, the 2006 Audit Commission Report Choosing Well: Analysing the Costs and Benefits of Choice in Local Public Services [2] identified that direct payments would lead to some additional costs such as the need for additional advice and guidance to DP recipients and the need for additional staff training. But it also found that there should be reduced administrative burdens for local authorities as much of this task falls to the user of direct payments. Local authorities can achieve cost neutrality depending on the direct payment rate set and, as uptake increases, cost per user to the local authority can also be expected to reduce.

66. However, some may point out that this may not be the case in practice for all parties, at least over the short term. For care providers, for example, a rise in direct payments may increase their administrative costs as they contract with each individual client rather than with local authorities.

67. We would welcome views on all aspects of the issue of cost neutrality, from the perspective of all respondents.

Bridging finance

68. A 2003 Direct Payments Scotland (DPS) finance project report considered the way budgets were constructed in a number of local authority areas, and the ability to release resources for direct payments. [3] It noted that budgets within the participating authorities were largely constructed around care groups, with divisions between the budgets for children and family services and community care, and subdivisions within community care for the various care groups, such as older people, learning disability and mental health. Budgets were then identified for specific service areas, such as day care and respite services. Certain major budgets, such as home care or aids/equipment or transport might be located in one care group but provide for services across all care groups. It also suggested that resource release should be available from home care, purchasing budgets and spot contracts, but considered that bridging finance may be needed for buildings based services and block contracts where money cannot easily be released.

69. It also suggested that the development of direct payments might be easier to manage financially in a local authority, which has budgets devolved to a local level, and which has a higher level of external purchasing, especially on a 'spot' basis.

70. Some local authorities are tied into multi-year contract arrangements for day centres. In the past they have pointed out that without additional funding or bridging finance, the deconstruction of block contracts and in-house services will not be possible. The argument is that an increase in DPs will mean that people will choose to spend fewer days at certain day centres or, indeed, may withdraw from the day centre altogether. At the same time, the local authority will need to keep the day centre open until the end of the contract, thus the local authority has to "double fund" social care provision.

71. There is a precedent for local authorities to release resources from buildings based arrangements in a number of ways. At this point in time, and without detailed information from local authorities, it is not possible to confirm the potential scale and speed of any reduction in demand for day care nor to confirm if there is in fact a need for bridging finance. Reform is already under way in many areas through best value reviews and other policy drivers, such as the learning disability review. Current test site activity by the Scottish Government and three partner local authorities is assessing the bridging finance needed for the transition from buildings based or block contracted services.

72. We encourage respondents to consider this matter in detail and to provide evidence in relation to the shift in resources to date, and the extent to which bridging finance may be necessary if at all.

Impact on length, complexity and volume of social care assessments

73. The Bill will attempt to set a clear framework for the final stages of any community care assessment process where individuals are asked if they wish to receive the local authority "provided" service, a direct payment or another form of self-directed support. This does not introduce a new stage to the assessment process but it will adjust and clarify this stage. We would like to hear views on whether the proposals, as currently put forward in the consultation document, would impact on the length of assessments and if so how. Finally, we would like to explore if there would be a growth in demand for social care assessments as new clients present for assessment thanks to the publicity surrounding any change to the law.

Cost of combined training requirements arising from the proposed changes

74. The changes will be likely to require the provision of training to social workers and certain local authority staff (for example finance staff) involved in social care assessments, the management and oversight of social care packages and direct payment packages. If necessary, this would be a one off cost. At this point in time, local authorities, the Scottish Social Services Council (SSSC), and other organisations are invited to comment on the general requirement and to provide evidence in relation to the likely scale and nature of any training package. A final assessment of training costs will be conducted as part of the final RIA.

Administration systems, SDS support organisations and user-led support organisations

75. Although councils have systems in place to administer DPs, it is important to consider the implications arising from a large-scale shift in demand for DPs and SDS. We encourage COSLA and local authorities to consider this matter in detail and to provide evidence in relation to any shift in resources that may be necessary. In addition, there may be implications in terms of the shape and scale of support provided by SDS support organisations.

Costs and benefits for each option

Option 1 - do nothing

Costs and Benefits

76. This would mean no costs in terms of Government or Parliamentary time, and no training costs for service providers. On the other hand, there would continue to be greater opportunity for those undertaking social care assessments to be confused about what is and what is not allowed under current legislation. Direct Payments would continue to be the only form of self-directed support provided for in law (and in several different pieces of legislation) and the law may continue to fall behind expectations amongst client groups and local authorities in terms of the increasing agenda on personalised services.

Option 2 - introduce a Bill that consolidates existing statute related to direct payments ONLY

Benefits

77. Consolidation of existing statute on direct payments would bring all existing legislative provisions into one Self-directed Support Act. It would provide the opportunity to clarify existing entitlements and obligations. It would provide the opportunity to provide clear, fit for purpose legislation which eliminates any confusion without changing fundamental rules and obligations.

Costs

78. Assuming direct payments are cost neutral, consolidation should not result in additional overall costs to the budget for social care provision. This is because an important principle of direct payments is that people who receive social care support via a direct payment should receive a standard of social care provision at the same level as the traditional "provided" service. We do not propose to legislate on this principle.

79. The main costs of this option would be associated with any training and guidance to local authority staff and, in turn, to social care providers so that they understand the legislative context and their obligations under the law.

Option 3 - introduce a Bill that achieves all the objectives as set out at paragraph 10

To consolidate existing statute related to direct payments, making the legal rules clearer to both service users and the organisations who deliver care; to introduce the term "self-directed support" into statute; and to define what is meant by self-directed support and direct payments

Benefits

80. In addition to the benefits of consolidation, as set out for option 2 above, a new legislative framework for self-directed support would:

• make it clear that direct payments are one form of self-directed support alongside individual budgets;
• provide the basis for practitioners to move beyond a position where direct payments or any other form of self-directed support are simply an alternative process;
• ensure that both direct payments and individual budgets are set within a clear framework of rights and processes rooted in the principle of the best outcomes for the individual; and
• provide a framework by which the laws on direct payments, individual budgets and, for that matter, any other "personalised" option, can be improved in future, in line with a developing agenda on personalisation of services.

81. A further benefit, albeit one that is difficult to quantify, is the additional impact of changes to the law in terms of the uptake of direct payment packages and better outcomes for individuals as a result. A clear legislative framework constructed to meet better outcomes for the individual will mean greater clarity for social care professionals and social care clients, so they are better able to make informed choices. This should help to support an increase in the people choosing to opt for a direct payment or individual budget, though a modest increase compared to some of the other proposals put forward in this consultation. An increase in uptake would make it more likely that social care packages will meet the needs and provide best outcomes for individuals, thus helping to maintain good health and wellbeing and preventing deterioration in conditions.

Costs

82. These are as set out above for consolidation under Option 2. In terms of training and guidance, it is important to qualify that the framework proposals do not envisage any radical addition or change to the main social care assessment processes. They are intended to set down expectations on how an existing step in the social care assessment should be conducted. As such, they do not involve major additions to the process, such as the offer of a DP, which do not already exist. There may be costs arising from minor changes to processes but it is not clear at this stage if this will occur.

To amend the duty on councils when they offer a direct payment/SDS to ensure that the provision of a direct payment is the default position. In other words, people will no longer be asked to "opt-in" to the DP/SDS method. Instead, they will be asked to "opt-out"

83. The intention behind this proposal is that a change to opt-out of DPs/SDS would result in an increase in demand for direct payments and individual budgets. Further work will be necessary to estimate high, medium and low estimates of any increase and to scope in detail the potential impacts on the main sectors and groups. At this stage, a summary of potential impacts is provided for consultation.

84. A significant increase in the number of people choosing to opt for SDS/DPs may lead to significant change to the social care market than we have seen up to this point. It may, for example, result in larger numbers of people choosing to opt for a social care provider that is not the local authority's in-house service or preferred provider. It might also result in larger numbers of people choosing a personal assistant.

85. The impact on the number of social care assessments undertaken by local authorities is, at this point, unclear. This is because the opt out changes will not affect the assessment criteria for "persons in need" and therefore should not in principle lead to an increase in the number of individuals requiring or coming forward for a community care assessment. It should, however, affect the proportion of individuals opting for a DP/SDS form of support rather than choosing a "provided" service. It would mean a shift in the balance between those individuals requiring guidance and support from a local authority or an SDS support organisation, and those requiring local authority "provided" services. We invite comments on the likely impact of these changes on this stage of the assessment process, on local authorities, and on support organisations.

Benefits

86. Research on direct payments suggests that the main benefit to individuals is that they would have the opportunity to have far greater influence and control over the social care that they obtain, including when and how they obtain it. Directing their own support helps individuals to achieve better outcomes in terms of their health and wellbeing and often leads to greater satisfaction with their social care provision. Increased uptake of direct payments in particular and, to a certain extent, individual budgets, should encourage greater civic responsibility and interest in the efficient and effective use of public money.

Costs

87. Direct payment/individual budget packages are already offered and administered by local authorities. The change may require local authorities to implement a range of modest adjustments to the way that they undertake this particular stage of the social care assessment process. It would also require the provision of training and guidance to practitioners so that they are aware of the changes and how they will be integrated into the assessment process. The training requirements would contribute to a wider training/information package for the Bill as a whole. Detailed work on demand and the costs of this training will be undertaken during the consultation; and local authorities in particular are invited to consider the likely demand for any general training package.

To widen eligibility and remove current exclusions on direct payments for the following client groups and situations:

• carers

Benefits

88. This option would provide local authorities with the power to make one-off support or relatively small ongoing payments to help to sustain the carer in their carer role. It would provide local authorities with the flexibility to allow them to help to prevent or delay deterioration of the cared for person's condition and to prevent deterioration in the carer's ability to cope, thus preventing or delaying the cared for person's transfer to a medical or residential social care environment, which may have negative impacts on their condition and mental health, and potentially a larger impact on the public purse.

Costs

89. The principle behind this proposal is that relatively small expenses incurred in the short term can help to prevent the local or health authority incurring greater expense at that time or at a later date. It should also be noted that payments would apply in a limited range of circumstances only.

90. This change would not necessarily mean a new or significantly more complicated carer's assessment, but would mean that the process would have to be extended from it's current form to incorporate a consideration of whether certain targeted support for the carer - as opposed to the person in need - is required. It may lead to an increase take-up of carers' assessments and we would welcome views on whether this would be the case.

91. Similar to the other changes proposed for the Bill, an extension of DP eligibility to carers would require a programme of training and information events for practitioners, so that they understand the law and what they can and cannot do under the legal framework.

• those who are granted a leave of absence from hospital whilst on a Compulsory Treatment Order

Benefit/Cost

92. There would be no additional cost implication for local authorities in that any package funded under a DP arrangement would be in place of what would otherwise be a "provided" service. There may be small savings in terms of any reduction in administration costs that come with a DP-funded package; however, because of the very small numbers affected, our initial assessment is that this would be negligible. There would be a very small training requirement which would be absorbed into any general package provided to practitioners.

• for the purchase of residential care

Benefits

93. The main benefits that may arise from such a change are:

• to provide parity between the provision of residential care and other forms of care provided to individuals in their own home. It could be argued, for instance, that the current exclusion on residential care means that those who reside in their own home are provided with a greater range of options compared to who reside in or wish to enter, a residential or care home;
• to ensure that the law allows for the maximum possible degree of choice and control for individuals who are seeking to or require to, enter residential care; and
• to provide this additional choice within the core principle of DP packages, namely that they should be provided at the same or similar rate as non-DP packages.

94. The main arguments that may be put forward against this are:

• that a direct payment/individual budget arrangement would not in fact entail any great improvement on the degree of choice available to individuals under current law. In other words, there would be little real benefit in practice; and
• the risk of unintended consequences in terms of the impact of the change on the residential care sector, the National Care Home Contract and rules on ordinary residence.

Costs

95. The core principle that DPs should not be set at a higher rate than "provided" services means that any extension of DPs/SDS into residential care should not affect the requirements on the overall level of funding for the residential care sector. However, in reality this may mean that individuals cannot purchase the same residential care as they would receive under the "provided" service. Self-funders pay more than publicly funded residents for the same care, because the National Care Home Contract secures a nationally negotiated rate for publicly funded residents which is more favourable than individual rates.

96. Councils already have systems in place to manage direct payments but we would like to hear how this might be adapted if DPs were to be extended to residential care. It would not mean the creation of a new service or assessment process as there are well established processes in place in order to assess individuals' social care needs and to determine if it is in their best interests to enter residential accommodation. It would result in modifications to one aspect of the social care assessment process, whereby local authority practitioners would provide the option of a direct payment alongside the options presented to individuals under the current arrangements. This may result in a modest increase to the time spent at the final stages of the assessment process for the specific user groups in question.

97. As with the other proposals within the Bill, an extension would bring with it training and information costs so that practitioners involved in the process are aware of the new arrangements and their responsibilities. The target audience for any training may be wider than some of the other proposals in that it may cover a much wider group of individuals who work with or in the care home sector in addition to local authority staff who conduct community care assessments and help individuals and their families to arrange residential care.

98. The change, therefore, may require modifications to existing processes and we would welcome views on whether this would be the case. It may, for instance, require local authorities to diversify how they manage residential care packages and to transfer some degree of administration support, in order to provide the same support and advice functions to those entering residential care as they currently provide to those wishing to take a DP for the social care package at home or in the community. However, the potential costs (if any) depend on: i) how and whether local authorities are able to adapt their existing DP arrangements to accommodate extension to residential care purchases; and ii) the number of individuals who are likely to opt for a DP-funded arrangement for their residential care package.

Possible additional impacts

99. In addition to the potential costs and benefits provided above, we want to examine the full range of potential impacts that must be considered in detail before any legislative change can be brought forwards. The two main areas where we would like to hear views are: the impact on ordinary residence rules, and; the impact on the social care provider sector.

• ordinary residence rules

100. A person's ordinary residence is of relevance when deciding which local authority pays for accommodation or care provided under the Social Work (Scotland) Act 1968. When a person is provided with residential care under the 1968 Act, their ordinary residence specifically does not change even when that residential accommodation is in another local authority area. We would like to examine how these arrangements might change, if at all, following any extension of DPs to the purchase of residential care.

• market for care home providers

101. The second area where we would particularly welcome views is in respect of the impacts, both positive and negative, of such a change on the market for care home providers. The Scottish Government has an interest in ensuring a stable and high quality care home sector and, before bringing forward any change that would affect the way that individuals interact with the sector, we want to examine all of the potential impacts of such a change, both positive and negative.

To remove the requirement for those who are deemed to lack the capacity to consent to a direct payment arrangement to have in place formal Guardianship or Power of Attorney. Instead, the decision on whether an individual should manage a direct payment on a cared for person's behalf would rest with the local authority where more formal arrangements (Guardianship or Power of Attorney) are not already in place

Benefits

102. The main benefits are:

• to remove the requirement that for all DP packages individuals and their families are required to apply via a court process in relation to applications for guardianships and the associated legal costs and processes; and
• the opportunity to increase the uptake of DPs/SDS.

103. Replacing the current obligation with a requirement to join Access to Funds scheme would have benefits in terms of managing the risk of financial abuse. Leaving the question of who could receive DPs on behalf of adults with incapacity to the discretion of local authorities would reduce burdens but might raise questions about how financial safeguards could be met. Introducing regulations to specify eligibility would bring Scotland into line with what is already the practice in England and Wales. However it should be noted that England and Wales have no equivalent to the Access to Funds scheme, which was implemented under the Adults with Incapacity (Scotland) Act 2000.

Costs

104. Additional costs on local authorities would be expected to be minimal. In cases where more formal arrangements (Guardianship or Power of Attorney) are not in place, it would leave decisions in the hands of local authorities but, if implemented along the lines proposed in the consultation, would not add any new formal appeal procedures. There would be incidental training costs to ensure that those undertaking social care assessments are aware of the new processes and local authorities' responsibilities

Section 6: Small/Micro Firms Impact Test

105. A number of small and medium sized businesses provide social care at home. There were also 1616 care homes registered with the Care Commission in 2009, providing 44,887 residential care places [4]. There may be significant benefits to small businesses arising from any general increase in uptake of direct payments. This is because it is probable that an increase in uptake of DPs and accompanying decrease in "provided" service may result in an increase in the number of users choosing to opt for a social care provider service outwith the local authority, or a personal assistant. The Bill does not propose to make any changes to the regulation or regulatory burdens on providers of social care. Therefore there is no need to carry out a full small/micro firms impact test.

Section 7: Legal Aid Impact Test

106. Our initial assessment is that the changes proposed in the consultation should not result in possible expenditure from the legal aid fund. The proposals should not have any implications for individuals' right to access to justice through legal aid. They should not have implications for civil and criminal legal aid as long as there is a clear and distinct audit trail for services and as long as payment out is not less than income in. For advice and assistance, consideration will need to be given to making specific exclusions by regulation.

107. The proposed Bill will not introduce any new court procedure nor any new right of appeal. The proposed changes to consent would mean that formal guardianship would not be a pre-requisite for a DP to be provided to individuals deemed to lack the capacity to consent. This may result in a slight reduction in the number of court applications for guardianship but this is likely to be negligible given that individuals will be likely to have other reasons to apply for such responsibilities.

Section 8: "Test run" of Business Forms

108. There are no new business forms planned as a result of the proposed legislation on SDS.

Section 9: Competition Assessment

109. Direct payments and self-directed support provide increased choice for individuals to make decisions on their social care support. This includes decisions about who provides the social care support. In principle, therefore, any legislation which allows for the increase in this model of social care provision should support the principles of fair and open competition. Direct payments should be in place of a provided service and so rates should not be set at a level to restrict the opportunity for individuals to opt for that particular funding option. At this stage, it is not expected that any of the options will limit the number of suppliers or their ability or incentives to compete, either directly or indirectly.

110. We have reached this interim conclusion after consulting guidance from the Office of Fair Trading [5]. A more detailed analysis of competition issues will be part of the final RIA. We welcome views and evidence in relation to this issue.

Section 10: Enforcement, Sanctions and Monitoring

111. Local authorities will be the agencies responsible for delivering the changes associated with the proposed Bill. Enforcement of standards within local authorities is the responsibility of regulatory bodies. Though the proposals would involve a change to an existing stage of the process they will not result in a major new stage to the community care assessment process and thus should not introduce any significant new requirements for inspection.

112. Detailed plans to monitor and evaluate the changes will be published should the Bill be introduced into Parliament.

References

[1] Tony Homer; Paula Gilder; A Review of Self-Directed Support in Scotland June 2008. ISBN 9780755971251

[2]http://www.audit-commission.gov.uk/SiteCollectionDocuments/AuditCommissionReports/NationalStudies/ChoosingWell.pdf

[3] Direct Payments Scotland. Direct Payments Finance Project Report. October 2003.

[4]http://www.carecommission.com/images/stories/documents/publications/reportingperformance/annual_report_and_accounts_2008-09.pdf

[5]http://www.oft.gov.uk/advice_and_resources/resource_base/guidelines/