Sections 4 to 14 – Options for self-directed support
Section 4 – Options for self-directed support
13.Section 4(1) provides the four options for self-directed support, which will be available to individuals when they are assessed as needing care and support or support as an adult carer. The options are:
| Option 1 | The making of a direct payment by the local authority to the supported person for the provision of support. |
| Option 2 | The 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 3 | The 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 4 | The 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. |
14.Section 4(2) defines a “direct payment” as a payment of a relevant amount to the supported person for the purpose of enabling the person to arrange for the provision of support by any person (including the authority). It explains the meaning of the term “relevant amount” (which is used in the definitions of all four of the self-directed support options) as the amount that the local authority considers a reasonable estimate of the cost of securing the provision of support for the supported person. It also provides that references to “supported person” and “support” must be read in accordance with sections 5, 7 and 8.
Sections 5 to 8 – Choice of options
15.Sections 5, 7 and 8 apply to the three groups of supported people: adults assessed as requiring support under section 12A of the 1968 Act; adult carers; and children (and/or their families) receiving support under section 22 of the 1995 Act (which includes children who are carers). All three sections require the authority to give the supported person the opportunity to choose one of the options for self-directed support. All three sections require the authority to inform the supported person of the amount of each of the self-directed support options that they are choosing from. And all three sections clarify the authority’s duties where the person is deemed to be ineligible to receive direct payments.
Section 5 – Choice of options: adults
16.Section 5 applies to adults provided with support by an authority following an assessment under section 12A of the 1968 Act (commonly known as a “community care assessment”) (subsection (1)).
17.Subsection (2) places a duty on the local authority to offer the four options to adults who have been assessed under section 12A of the 1968 Act as needing a service, unless that adult is ineligible for direct payments. The grounds for ineligibility for direct payments will be provided for in regulations made under section 15.
18.Subsections (3) and (6) make provision for what the local authority must do if they consider the supported person ineligible to receive direct payments. If the local authority deem the supported person ineligible for direct payments, the local authority is required to inform the supported person in writing and, if necessary, such other form as is appropriate of the reason why they are deemed ineligible and inform them that they may seek a review of that decision if there is a material change in their circumstances relevant to that decision (see section 12).
19.Subsection (3)(b) requires the authority to give the person a choice of the remaining eligible options for self-directed support (Options 2, 3 and, in so far as the person is eligible, Option 4).
20.Subsection (4) places a duty on the local authority to inform the supported person of (a) the amount of funding available under the options and (b) the period to which the funding relates.
21.Subsection (5) provides that that if the supported person makes no choice then they are deemed to have chosen Option 3, whereby the local authority selects the support and makes arrangements on the person’s behalf in order to meet their assessed needs. Subsection (7) provides that an individual is ineligible to receive direct payments if they are a person described in regulations under section 15(2)(a).
Section 6 – Choice of options under section 5: assistance
22.Section 6 places a duty on authorities to take reasonable steps to identify and involve people to assist the individual to make a choice with regards to their options for self-directed support under section 5. The duty applies where it either appears to the authority that because of mental disorder the supported person would benefit from assistance in making decisions about relevant matters, or where it appears to the authority that because of difficulties in communicating due to physical disability the supported person would benefit from receiving assistance to communicate their decisions about relevant matters.
23.Subsection (4) places a duty on the authority to take reasonable steps to enable the adult to choose from the four options for self-directed support set out in section 4 or, where they are deemed ineligible for direct payments, a choice of the options other than direct payments. This means that a local authority is obliged to allow someone to make a choice even if they have difficulties in doing so.
24.Subsection (5) places the further duty on the local authority to take reasonable steps to identify people who are able to assist the supported person and, if the supported person agrees to the relevant persons providing such assistance, to involve the relevant person or persons in assisting the supported person in making or communicating decisions relating to the supported person’s options for self-directed support. The person or persons providing assistance may be relatives and friends of the individual but it may also include other persons who can assist via what is commonly known as a “circle of support”. The requirement to have the agreement of the supported person makes it explicit on the face of the Act that section 6 applies only in relation to supported persons who have capacity, but due to mental disorder or difficulties in communicating, may require additional assistance in order to understand, arrive at or communicate their decisions about the options for self-directed support.
25.Subsection (3) sets out conditions which must be satisfied before subsections (4) and (5) can be applied. The duty should not be applied when there is a guardian, continuing attorney or welfare attorney with relevant powers present, or when an intervention order has been granted which relates to the provision of assistance with the assessment. Such an attorney or guardian (or individual empowered by an intervention order) would have the power to make self-directed support decisions on the adult’s behalf (in accordance with the principles of the Adults with Incapacity (Scotland) Act 2000).
26.Subsection (6) provides definitions for the various terms used in subsections (1) to (5).
Section 7 – Choice of options: adult carers
27.Section 7 makes provisions with the same effect for adult carers as section 5 makes for adults as regards the choice of options for self-directed support (the procedure for which is set out in paragraphs 16 to 21 above). Section 7 applies where a local authority decides to provide support under section 3(4).
Section 8 – Choice of options: children and family members
28.Section 8 provides that the four options must be available to children, and/or their family, where a local authority decides to provide services under section 22 of the Children (Scotland) Act 1995. Provision of services under section 22 can involve a range of types of support and various categories of supported children including children who are carers, disabled children and any other child deemed to be “in need” within the definition of section 93(4) of the 1995 Act. Services under section 22 can also be provided to a member of the child’s family.
29.Section 8(2) requires the authority to offer the four options to the “supported person” unless they consider the supported person ineligible to receive direct payments (as may be defined in regulations under section 15). If the authority consider that the supported person is ineligible to receive direct payments subsection (3)(a) requires the authority to inform the supported person of the reason for that decision and to inform them that they can request a review of the decision. As with services for adults, where this is the case the authority is required to give the person a choice of the other options for self-directed support (subsection (3)(b)).
30.Subsection (4) places a duty on the local authority to inform the supported person of the amount of funding available under the options and the period to which the funding relates.
31.Subsection (9) provides definitions of “appropriate person” and “supported person” which are important to the wider operation of this section. In general terms an “appropriate person” is a person with parental rights and responsibilities, or their equivalent under the laws of England, Wales and Northern Ireland. The definition under subsection (9) sets out the relevant enactments which provide for those rights.
32.It is the “supported person” who has the ability to make the choice under subsection (2). The supported person is first of all identified on the basis of whether they receive any support under section 22 of the 1995 Act (which may be whole or partial). If the supported person is a child (i.e. under 18) who is either 16 or 17 they will make the choice. If the supported person is a child who is under 16 it is an “appropriate person” who makes the choice. Under subsection (6) the appropriate person must, so far as practicable and taking account of the maturity of the child, give the child an opportunity to indicate if they wish to express any views about the choices available, and if the child so wishes, provide that opportunity and have regard to their views. If the supported person is an adult, then that person makes the choice.
33.As with the provisions on adults, subsection (7) provides that when the supported person does not make a choice they are deemed to have chosen option 3 whereby the local authority selects and makes arrangement for the provision of services.
Section 9 – Provision of information about self-directed support
34.Section 9 imposes certain duties on the local authority to provide information and advice about the options (available under section 4) and the provision of support under any of those options. These duties are imposed where under section 5, 7 or 8 a person is given the opportunity to choose an option for self-directed support.
35.Section 9(2)(a) places a duty on the local authority to explain what each option means in practice to the person. An example may be the opportunities and responsibilities that go with the option. Subsection (2)(b) requires the local authority to provide the person with information about how they might manage their support after they have chosen their preferred option. Subsection (2)(c) requires the authority to provide the person with information about persons who can provide help or further advice to them to help them to choose an option. This includes sources of advice or information other than the authority itself. In practice this will include organisations known as direct payment or self-directed “support organisations”. Subsection (2)(d) requires the authority to provide the person with information about providers of independent advocacy services where they consider it is appropriate to do so. Subsection (3) requires the authority in all three instances to provide the relevant information both in writing and, where appropriate, in alternative formats appropriate to the person’s communication needs.
Section 10 – Provision of information: children under 16
36.Section 10 places a duty on the local authority to give information to a child who is making or, in relation to whom an appropriate person is making, a choice under section 8. The information given to the child is an explanation of, and information relating to, the options for self directed support. The duty applies in so far as practicable and taking account of the maturity of the child and the information should be given in a form that is appropriate to the child.
Section 11 – Local authority functions
37.Section 11 sets out a local authority’s functions when a choice is made under section 5, 7 or 8.
38.Subsection (2) requires the authority to give effect to the option selected by the person under section 4 and accompanying section 5, 7 or 8.
39.Subsection (3) provides that a local authority has fulfilled its duty to provide support under either the 1968 Act or the Children’s (Scotland) Act 1995 when it has offered the options as set out in section 4 and when it has given effect to the chosen option.
40.Subsection (4) provides that compliance with subsection (2) does not extinguish any other function of a local authority. It is similar to provision made by section 12C of the 1968 Act (to be repealed by section 25 of the Act). If for example, a person’s needs were not being met by the support they were being provided a local authority’s duty has not been extinguished by virtue of their already having provided support. In particular subsection (4)(b) states that the exercise of an authority’s power to make available assistance in cash to or in respect of the person in an emergency persists.
Section 12 – Eligibility for a direct payment: review
41.Section 12 places a duty on the local authority to review their decision (on the request of the supported person) to deem a person ineligible for a direct payment where there is a material change in the circumstances which led to the person being deemed to be ineligible.
Section 13 – Further choice of options on material change of circumstances
42.Section 13 places a duty on the local authority to offer the supported person the opportunity to change their choice of the options set out in section 4. This duty applies after an individual has made a choice and where the local authority becomes aware of a material change in the person’s circumstances after the choice has been made. This could, for example, cover the situation where someone has received a direct payment, has managed the direct payment with assistance from a family carer, but where the carer is no longer able to provide this assistance. In such circumstances the individual must then be offered a choice once again (subsection (2)). Subsection (3) provides that the authority and the person may agree additional circumstances under which the opportunity to review might apply (for example, by agreeing to an annual review).
Section 14 – Power to modify section 4
43.Section 14 provides for a regulation-making power for Scottish Ministers to modify the four options and, in so far as necessary, to modify the accompanying section 5, 7, 8, 15(2)(b) and 23(2) in consequence of any changes made to section 4.
