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S

Social Care (Self-directed Support) (Scotland) Act 2013

2013 asp 1

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 28th November 2012 and received Royal Assent on 10 January 2013.

An Act of the Scottish Parliament to enable local authorities to provide support to certain carers; to make provision about the way in which certain social care services are provided by local authorities; and for connected purposes.

General principlesS

1General principlesS

(1)A local authority must have regard to the principles in subsections (2) to (4) in carrying out its functions under—

(a)Part 2 of the 1968 Act (other than the provisions mentioned in subsection (5)),

(b)sections 22 [F1and 23] of the 1995 Act,

(c)this Act.

[F2(d)Part 2 or 3 of the Carers (Scotland) Act 2016.]

(2)A person must have as much involvement as the person wishes in relation to—

(a)the assessment of the person's needs for support or services, and

(b)the provision of support or services for the person.

(3)A person must be provided with any assistance that is reasonably required to enable the person—

(a)to express any views the person may have about the options for self-directed support, and

(b)to make an informed choice when choosing an option for self-directed support.

(4)A local authority must collaborate with a person in relation to—

(a)the assessment of the person's needs for support or services, and

(b)the provision of support or services for the person.

(5)The provisions are—

(a)sections 27 to 27B (which make provision in relation to the supervision and care of persons put on probation or released from prison etc.),

F3(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)section 29 (local authority's power to make payments to parents etc. in respect of expenses for visiting certain persons and attending funerals).

(6)In this section—

(a)references to the assessment of a person's needs are references to assessment under section 12A of the 1968 Act [F4, section 23(3)] of the 1995 Act [F5or by virtue of section 8 or 14 of the Carers (Scotland) Act 2016,]

(b)references to the provision of support for a person are references to the provision of support under [F6section 24 of the Carers (Scotland) Act 2016],

(c)references to the provision of services for a person are references to the provision of community care services under Part 2 of the 1968 Act or, as the case may be, the provision of services under section 22 of the 1995 Act.

Textual Amendments

Commencement Information

I1S. 1 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

2Further general principles applicable to this ActS

In carrying out its functions under this Act in relation to a person who is to choose (or has chosen) one of the options for self-directed support, a local authority must take reasonable steps to facilitate the following general principles—

(a)that the right to dignity of the person is to be respected,

(b)that the person's right to participate in the life of the community in which the person lives is to be respected.

Commencement Information

I2S. 2 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

Adult carersS

F73Support for adult carersS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modifications etc. (not altering text)

C1S. 3 transitional provisions for effects of 2016 asp 19, sch. para. 5(3) (1.4.2018) by The Carers (Scotland) Act 2016 (Transitional Provisions) Regulations 2018 (S.S.I. 2018/34), regs. 1(1), 3-16

Options for self-directed supportS

4Options for self-directed supportS

(1)The options for self-directed support are—

Option 1The making of a direct payment by the local authority to the supported person for the provision of support.
Option 2The selection of support by the supported person, the making of arrangements for the provision of it by the local authority on behalf of the supported person and, where it is provided by someone other than the authority, the payment by the local authority of the relevant amount in respect of the cost of that provision.
Option 3The selection of support for the supported person by the local authority, the making of arrangements for the provision of it by the authority and, where it is provided by someone other than the authority, the payment by the authority of the relevant amount in respect of the cost of that provision.
Option 4The selection by the supported person of Option 1, 2 or 3 for each type of support and, where it is provided by someone other than the authority, the payment by the local authority of the relevant amount in respect of the cost of the support.

(2) In this section—

Commencement Information

I3S. 4 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

5Choice of options: adultsS

(1)This section applies where a local authority decides under section 12A(1)(b) of the 1968 Act that the needs of an adult (the “supported person”) call for the provision of community care services (“support”).

(2)The authority must give the supported person the opportunity to choose one of the options for self-directed support unless the authority considers that the supported person is ineligible to receive direct payments.

(3)If the authority considers that the supported person is ineligible to receive direct payments the authority must—

(a)notify the supported person of—

(i)the reason why the authority considers that to be the case, and

(ii)the circumstances in which the authority must under section 12 review the question of whether the supported person is ineligible to receive direct payments, and

(b)give the supported person the opportunity to choose one of the options for self-directed support other than—

(i)Option 1, and

(ii)so far as relating to that option, Option 4.

(4)In carrying out the duties imposed by subsections (2) and (3)(b), the authority must inform the supported person of—

(a)the amount that is the relevant amount for each of the options for self-directed support from which the authority is giving the person the opportunity to choose, and

(b)the period to which the amount relates.

(5)If the supported person does not make a choice in pursuance of subsection (2) or (3)(b) the supported person is deemed to have chosen Option 3.

(6)The authority must give the notification required by subsection (3)(a) in writing and, if necessary, in such other form as is appropriate to the needs of the person to whom it is given.

(7)For the purposes of this section, a person is ineligible to receive direct payments if the person is of a description specified in regulations under section 15(2)(a).

Modifications etc. (not altering text)

Commencement Information

I4S. 5 in force at 1.4.2014 by S.S.I. 2014/32, art. 3 (with art. 4(1)(2))

6Choice of options under section 5: assistanceS

(1)This section applies where—

(a)a local authority decides under section 12A(1)(b) of the 1968 Act that the needs of an adult (the “supported person”) call for the provision of community care services,

(b)it appears to the authority that the supported person falls within subsection (2), and

(c)the conditions in subsection (3) are satisfied.

(2)A supported person falls within this subsection if—

(a)because of mental disorder, the supported person would benefit from receiving assistance from another person in relation to making decisions about relevant matters,

(b)because of difficulties in communicating due to physical disability, the supported person would benefit from receiving assistance from another person in relation to communicating decisions about relevant matters.

(3)The conditions are—

(a)there is no guardian, continuing attorney or welfare attorney with powers in relation to the relevant matters, and

(b)an intervention order has not been granted in relation to the relevant matters.

(4)The authority must take reasonable steps to enable the supported person to make a choice in pursuance of section 5(2) or (3)(b).

(5)The authority must take reasonable steps—

(a)to identify persons who are able to assist the supported person, and

(b)if the supported person agrees, to involve them in assisting the supported person in making decisions about relevant matters or, as the case may be, communicating decisions about relevant matters.

(6)In this section—

Commencement Information

I5S. 6 in force at 1.4.2014 by S.S.I. 2014/32, art. 3 (with art. 4(1)(2))

7[F8Choice of options: adult carers and young carers]S

(1)This section applies where a local authority is to provide, or secure the provision of, support for an adult [F9an adult carer or, as the case may be, a young carer under section 24(4) of the Carers (Scotland) Act 2016] .

(2)The authority must give the supported person the opportunity to choose one of the options for self-directed support unless the authority considers that the supported person is ineligible to receive direct payments.

(3)If the authority considers that the supported person is ineligible to receive direct payments the authority must—

(a)notify the supported person of—

(i)the reason why the authority considers that to be the case, and

(ii)the circumstances in which the authority must under section 12 review the question of whether the supported person is ineligible to receive direct payments, and

(b)give the supported person the opportunity to choose one of the options for self-directed support other than—

(i)Option 1, and

(ii)so far as relating to that option, Option 4.

(4)In carrying out the duties imposed by subsections (2) and (3)(b), the authority must inform the supported person of—

(a)the amount that is the relevant amount for each of the options for self-directed support from which the authority is giving the person the opportunity to choose, and

(b)the period to which the amount relates.

[F10(4A)Subsection (4B) applies where the supported person is an appropriate person in relation to the young carer.

(4B)Before making a choice in pursuance of subsection (2) or (3)(b), the supported person must, so far as practicable and taking account of the maturity of the young carer—

(a)give the young carer an opportunity to indicate whether the young carer wishes to express the young carer's views,

(b)if the young carer wishes to do so, give the young carer an opportunity to express them, and

(c)have regard to any views expressed by the young carer.]

(5)If the supported person does not make a choice in pursuance of subsection (2) or (3)(b) the supported person is deemed to have chosen Option 3.

(6)The authority must give the notification required by subsection (3)(a) in writing and, if necessary, in such other form as is appropriate to the needs of the person to whom it is given.

[F11(7)In this section—

8Choice of options: children and family membersS

(1)This section applies where a local authority is to provide services under section 22 of the 1995 Act (“support”) to a child or a member of a child's family.

(2)The authority must give the supported person the opportunity to choose one of the options for self-directed support unless the authority considers that the supported person is ineligible to receive direct payments.

(3)If the authority considers that the supported person is ineligible to receive direct payments the authority must—

(a)notify the supported person of—

(i)the reason why the authority considers that to be the case, and

(ii)the circumstances in which the authority must under section 12 review the question of whether the supported person is ineligible to receive direct payments, and

(b)give the supported person the opportunity to choose one of the options for self-directed support other than—

(i)Option 1, and

(ii)so far as relating to that option, Option 4.

(4)In carrying out the duties imposed by subsections (2) and (3)(b), the authority must inform the supported person of—

(a)the amount that is the relevant amount for each of the options for self-directed support from which the authority is giving the person the opportunity to choose, and

(b)the period to which the amount relates.

(5)Subsection (6) applies where the supported person is an appropriate person in relation to the child.

(6)Before making a choice in pursuance of subsection (2) or (3)(b), the supported person must, so far as practicable and taking account of the maturity of the child—

(a)give the child an opportunity to indicate whether the child wishes to express the child's views,

(b)if the child wishes to do so, give the child an opportunity to express them, and

(c)have regard to any views expressed by the child.

(7)If the supported person does not make a choice in pursuance of subsection (2) or (3)(b) the supported person is deemed to have chosen Option 3.

(8)The authority must give the notification required by subsection (3)(a) in writing and, if necessary, in such other form as is appropriate to the needs of the person to whom it is given.

(9)In this section—

Modifications etc. (not altering text)

Commencement Information

I7S. 8 in force at 1.4.2014 by S.S.I. 2014/32, art. 3 (with art. 4(3)(4))

9Provision of information about self-directed supportS

(1)This section applies where under section 5, 7 or 8 a local authority gives a person an opportunity to choose one of the options for self-directed support.

(2)The authority must give the person—

(a)an explanation of the nature and effect of each of the options for self-directed support,

(b)information about how to manage support,

(c)information about persons (including persons who are not employed by the authority) who can provide—

(i)assistance or information to the person to assist the person in making decisions about the options,

(ii)information about how to manage support, and

(d)in any case where the authority considers it appropriate to do so, information about persons who provide independent advocacy services (within the meaning of section 259(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13)).

(3)The authority must give the explanation and information required by subsection (2) in writing and, if necessary, in such other form as is appropriate to the needs of the person to whom they are given.

Commencement Information

I8S. 9 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

10Provision of information: children under 16S

(1)This section applies where under [F12section 7 or 8] a local authority gives an appropriate person an opportunity to choose one of the options for self-directed support.

(2)The authority must, in so far as practicable and taking account of the maturity of the [F13young carer or, as the case may be,] child, give the [F14young carer or] child to whom the support is to be provided an explanation of, and information relating to, the nature and effect of each of the options for self-directed support.

(3)The authority must give the explanation and information in such manner and form as is appropriate to the needs of the [F15young carer or] child to whom they are given.

(4)In this section, “appropriate person” has the same meaning[F16

(a)in relation to a young carer, as in section 7(7),

(b)in relation to a child,] as in section 8(9).

Textual Amendments

Commencement Information

I9S. 10 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

11Local authority functionsS

(1)This section applies where under section 5, 7 or 8 a local authority gives a person an opportunity to choose one of the options for self-directed support.

(2)The local authority must give effect to the option for self-directed support chosen by the person.

(3)Compliance with the requirement imposed by subsection (2) fulfils any duty imposed on the authority by Part 2 of the 1968 Act[F17, section 24 of the Carers (Scotland) Act 2016] or, as the case may be, section 22 of the 1995 Act to provide to the person the support to which the option relates.

(4)Compliance with the requirement imposed by subsection (2) does not affect—

(a)any other function of the local authority in relation to the provision to the person of the support to which the option relates,

(b)the exercise by the local authority of the power in section 12(1) of the 1968 Act to make available assistance in cash to or in respect of the person in relation to the support to which the option relates.

Textual Amendments

Commencement Information

I10S. 11 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

12Eligibility for direct payment: reviewS

(1)Subsection (2) applies where—

(a)a person receives notice under section 5(3)(a), 7(3)(a) or 8(3)(a), and

(b)because of a material change in the person's circumstances, the reason stated in the notice no longer applies.

(2)On the request of the person, the local authority must review the question of whether the person is ineligible to receive direct payments.

(3)If the local authority considers that the person is no longer ineligible to receive direct payments, the authority must give the person the opportunity to choose one of the options for self-directed support under section 5(2) or, as the case may be, section 7(2) or 8(2).

Commencement Information

I11S. 12 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

13Further choice of options on material change of circumstancesS

(1)Subsection (2) applies where—

(a)under section 5, 7 or 8 a local authority gives a person an opportunity to choose one of the options for self-directed support,

(b)the person chooses an option, and

(c)after the choice is made the authority becomes aware of a material change in the person's circumstances.

(2)The authority must offer the person another opportunity to choose one of the options for self-directed support under the section concerned.

(3)The authority and the person may agree that subsection (2) also applies in other circumstances.

Commencement Information

I12S. 13 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

14Power to modify section 4S

The Scottish Ministers may by regulations—

(a)modify section 4,

(b)so far as necessary in consequence of any modification made under paragraph (a), modify sections 5, 7, 8, 15(2)(b) and 23(2).

Commencement Information

I13S. 14 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

Direct paymentsS

15Power to make further provision about direct paymentsS

(1)The Scottish Ministers may by regulations make further provision about direct payments.

(2)Regulations under subsection (1) may in particular make provision for or in connection with—

(a)specifying descriptions of person who are ineligible to receive direct payments,

(b)specifying circumstances in which a local authority is not to be required under section 5, 7 or 8 to give a person the opportunity to choose—

(i)Option 1 of the options for self-directed support, and

(ii)so far as relating to that option, Option 4,

(c)specifying the circumstances in which a local authority may require a person to contribute to a direct payment,

(d)enabling a local authority to assess or reassess a person's ability to contribute to the cost of securing the support to which a direct payment relates,

(e)specifying the ways in which direct payments may be paid or repaid,

(f)specifying circumstances in which a local authority may, must or may not terminate the making of a direct payment,

(g)specifying circumstances in which a local authority may pay all or part of a direct payment to a person other than the person to whom the direct payment relates,

(h)specifying descriptions of person to whom direct payments may not be made under paragraph (g),

(i)specifying descriptions of person who are prohibited from providing support to which a direct payment relates other than in such circumstances as are specified,

(j)specifying conditions which must be satisfied by persons before they may provide support to which a direct payment relates.

16Misuse of direct payment: recoveryS

(1)Subsection (2) applies where—

(a)a local authority makes a direct payment to a person, and

(b)the authority considers—

(i)that the direct payment has been used (wholly or partly) for some purpose other than to secure the provision of the support to which it relates, or

(ii)that there has been a contravention of provision made by regulations under section 15 in relation to the direct payment.

(2)The authority may require the person to repay a sum equal to—

(a)the direct payment, or

(b)such part of the direct payment as the authority considers appropriate.

Commencement Information

I14S. 16 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

Local authority functionsS

17Assessments under section 12A of 1968 Act: assistanceS

After section 12A of the 1968 Act, insert—

12AZAAssessments under section 12A: assistance

(1)Subsection (4) applies where—

(a)a local authority is required by section 12A(1)(a) to carry out an assessment of the needs of a person (the “supported person”) for community care services,

(b)it appears to the authority that the supported person falls within subsection (2), and

(c)the conditions in subsection (3) are satisfied.

(2)A supported person falls within this subsection if—

(a)because of mental disorder, the supported person would benefit from receiving assistance from another person in relation to the carrying out of the assessment,

(b)because of difficulties in communicating due to physical disability, the supported person would benefit from receiving assistance from another person to communicate in relation to the carrying out of the assessment.

(3)The conditions are—

(a)there is no guardian, continuing attorney or welfare attorney with powers as respects the provision of assistance in relation to the carrying out of the assessment, and

(b)an intervention order has not been granted as respects the provision of assistance in relation to the carrying out of the assessment.

(4)The authority must take reasonable steps—

(a)to identify persons who are able to assist the supported person, and

(b)if the supported person agrees, to involve them in assisting the supported person in relation to the carrying out of the assessment or, as the case may be, communicating in relation to the carrying out of the assessment.

(5)In this section—

Commencement Information

I15S. 17 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

18Power to charge for services provided under section 3S

In section 87 of the 1968 Act (power of local authority to charge for services and accommodation provided under certain enactments), in each of subsections (1) and (1A)(a)—

(a)the word “or”, where it first occurs, is repealed, and

(b)after “(asp 13)” insert “ or section 3(4) of the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1) ”.

Commencement Information

I16S. 18 in force at 17.2.2014 by S.S.I. 2014/32, art. 2

19Promotion of options for self-directed supportS

(1)A local authority must take steps to promote the availability of the options for self-directed support.

(2)For the purpose of making available to supported persons a wide range of support when choosing options for self-directed support, a local authority must, in so far as is reasonably practicable, promote—

(a)a variety of providers of support, and

(b)the variety of support provided by it and other providers.

(3)In subsection (2), “supported person” has the meaning given by section 4(2).

Modifications etc. (not altering text)

Commencement Information

I17S. 19 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

F1820DelegationS

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I18S. 20 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

GeneralS

21Guidance and directionsS

In section 5 of the 1968 Act (guidance and directions under 1968 Act and certain other enactments)—

(a)in subsection (1), for the words from “and” to “1995” substitute “ , Part 2 of the Children (Scotland) Act 1995 and the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1) ”, and

(b)in subsection (1B), after paragraph (q) add—

(r)the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1)..

Commencement Information

I19S. 21 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

22Regulations: generalS

(1)Regulations under this Act may—

(a)make different provision for different cases,

(b)include such supplementary, incidental, consequential, transitory and transitional provision and savings as the Scottish Ministers consider appropriate.

(2)Regulations under sections 14 and 23 are subject to the affirmative procedure.

(3)Otherwise, regulations under this Act are subject to the negative procedure.

(4)Before laying a draft of a Scottish statutory instrument containing regulations under section 14 or 23 before the Scottish Parliament, the Scottish Ministers must consult such persons as they consider appropriate.

23Power to modify application of ActS

(1)The Scottish Ministers may by regulations make provision for or in connection with disapplying section 5(2) or 8(2) in such circumstances as the regulations may specify.

(2)Regulations under subsection (1) which disapply section 5(2) or 8(2) must include provision deeming a person to have chosen Option 3 of the options for self-directed support.

(3)Regulations under subsection (1) may include provision for or in connection with disapplying or modifying any other section.

Commencement Information

I20S. 23 in force at 1.4.2014 by S.S.I. 2014/32, art. 3

24InterpretationS

(1)In this Act, unless the context otherwise requires—

(2)In this Act, references to a person's being ineligible to receive direct payments are to be construed in accordance with section 5(7).

25Consequential repealsS

Sections 12B and 12C of the 1968 Act (which make provision in relation to direct payments in respect of community care services) are repealed.

Commencement Information

I21S. 25 in force at 1.4.2014 by S.S.I. 2014/32, art. 3 (with art. 5)

26Ancillary provisionS

(1)The Scottish Ministers may by order make such supplementary, incidental or consequential provision as they consider appropriate for the purposes of, in consequence of, or for giving full effect to, any provision of this Act.

(2)An order under subsection (1) may modify any enactment.

(3)An order under subsection (1) containing provisions which add to, replace or omit any part of the text of an Act is subject to the affirmative procedure.

(4)Otherwise, an order under subsection (1) is subject to the negative procedure.

27Transitional provision etc.S

(1)The Scottish Ministers may by order make such provision as they consider necessary or expedient for transitory, transitional or saving purposes in connection with the coming into force of any provision of this Act.

(2)An order under subsection (1) may modify any enactment.

(3)An order under subsection (1) is subject to the negative procedure.

28CommencementS

(1)This section and sections 15, 22, 24, 26, 27 and 29 come into force on the day after Royal Assent.

(2)The other provisions of this Act come into force on such day as the Scottish Ministers may by order appoint.

(3)An order under subsection (2) may contain transitory or transitional provision or savings.

29Short titleS

The short title of this Act is the Social Care (Self-directed Support) (Scotland) Act 2013.