EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations are made under section 15 of the Social Care (Self-directed Support) (Scotland) Act 2013 (“the Act”) and make further provision about direct payments.
Sections 5, 7 and 8 of the Act require local authorities providing support to an adult, adult carer or child or member of a child’s family to give the supported person the opportunity to choose one of the options set out in section 4 of the Act as to how that support is provided. Option 1 is the making of a direct payment by the local authority to the supported person to enable the person to arrange for the provision of support.
Regulation 3 provides in relation to means testing for direct payments including providing that any means test must be carried out either before the direct payment is made or if later not more than one year after payment is made.
Regulation 4 allows local authorities to pay in instalments.
Regulation 5 allows local authorities to pay a direct payment to a third party but only if requested to do so by the direct payment user and if they are satisfied that the direct payment user retains control of the payment.
Regulation 6 sets out circumstances in which local authorities can terminate a direct payment. This includes where there is a change in the direct payment user’s circumstances such as going into residential care (and so becoming ineligible to receive direct payments). The local authority first has to notify the person.
Part 3 of the Regulations sets out the circumstances in which family members can provide the support to which a direct payment relates. This Part does not apply to support to adult carers under section 3 of the Act or to services under section 22 of the Children (Scotland) Act 1995 where the support relates to care a child (young carer) provides to another person.
Regulation 8 provides that a family member can only provide the support to which a direct payment relates if the family member, the direct payment user and the local authority agree, the family member is capable of meeting the direct payment user’s needs and at least one of the factors in regulation 8(3) applies.
Regulation 9 sets out exceptions to the provision in regulation 8 allowing family members to provide support.
Part 4 (regulation 10) provides that certain persons are ineligible to receive direct payments. These are persons to whom a local authority is providing support in the form of residential accommodation. If a person is ineligible, in terms of the Act, the local authority cannot offer the option of a direct payment but must give the person the opportunity to choose one of the other options for self-directed support.
Part 5 (regulation 11) specifies circumstances in which local authorities have discretion as to whether they offer the option of a direct payment.
A Business and Regulatory Impact Assessment has been prepared and placed in the Scottish Parliament Information Centre. Copies may be obtained from the Adult Care and Support Policy Team, Scottish Government, St Andrew’s House, Edinburgh.