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

General principles

General principles

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• (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 and 23 of the 1995 Act,

• (c) this Act.

• (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.),

• (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 , section 23(3) of the 1995 Act or 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 section 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.

Further general principles applicable to this Act

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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.

Adult carers

Support for adult carers

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Options for self-directed support

Options for self-directed support

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• (1) The options for self-directed support 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.

• (2) In this section—

• “direct payment” means a payment of the relevant amount by a local authority to a supported person for the purpose of enabling the person to arrange for the provision of support by any person (including the authority),

• “relevant amount” means the amount that the local authority considers is a reasonable estimate of the cost of securing the provision of support for the supported person,

• “supported person” and “support” are to be construed in accordance with section 5 or, as the case may be, section 7 or 8.

Choice of options: adults

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• (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).

Choice of options under section 5: assistance

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• (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—

• “the 2000 Act” means the Adults with Incapacity (Scotland) Act 2000 (asp 4),

• “continuing attorney”—means a continuing attorney within the meaning of section 15 of the 2000 Act, andincludes a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter's property or financial affairs and having continuing effect despite the granter's incapacity,

• “guardian”—means a guardian appointed under the 2000 Act, andincludes a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during the adult's incapacity, if the guardianship is recognised under the law of Scotland,

• “intervention order” is to be construed in accordance with section 53 of the 2000 Act,

• “mental disorder” has the meaning given by section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13),

• “relevant matters” means—the choice in pursuance of section 5(2) or (3)(b) of one of the options for self-directed support,anything relating to the planning of the care or support of the supported person,anything relating to support provided (or to be provided) to the supported person in pursuance of an option for self-directed support,

• “welfare attorney”—means a welfare attorney within the meaning of section 16 of the 2000 Act, andincludes a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter's personal welfare and having effect during the granter's incapacity.

Choice of options: adult carers

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• (1) This section applies where a local authority is to provide, or secure the provision of, support for ... an 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.

• (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.

• (7) In this section—

• “the 1989 Act” means the Children Act 1989,

• “the 1995 Order” means the Children (Northern Ireland) Order 1995 (S.I. 1995/755),

• “adult carer” has the meaning given by section 3 of the Carers (Scotland) Act 2016,

• “appropriate person”, in relation to a young carer, means—a parent or guardian having parental responsibilities or parental rights in relation to the young carer under Part 1 of the 1995 Act,a person in whom parental responsibilities or parental rights are vested by virtue of section 11(2)(b) of the 1995 Act,a person having parental responsibilities or parental rights by virtue of section 11(12) of the 1995 Act,a parent having parental responsibility for the young carer under Part 1 of the 1989 Act,a person having parental responsibility for the young carer by virtue of—section 12(2) of the 1989 Act,section 14C of the 1989 Act, orsection 25(3) of the Adoption and Children Act 2002,a parent having parental responsibility for the young carer under Part 2 of the 1995 Order,a person having parental responsibility for the young carer under Article 12(2) of the 1995 Order,a person in whom parental responsibilities or parental rights are vested by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007),

• “supported person” means—where the support is to be provided to an adult carer, the adult carer,where the support is to be provided to a young carer—if the young carer is under 16 years of age, an appropriate person,if the young carer is 16 years of age or over, the young carer,

• “young carer” has the meaning given in section 2 of the Carers (Scotland) Act 2016.

Choice of options: children and family members

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• (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—

• “the 1989 Act” means the Children Act 1989 (c.41),

• “the 1995 Order” means the Children (Northern Ireland) Order 1995 (S.I. 1995/755),

• “appropriate person”, in relation to a child, means—a parent or guardian having parental responsibilities or parental rights in relation to the child under Part 1 of the 1995 Act,a person in whom parental responsibilities or parental rights are vested by virtue of section 11(2)(b) of the 1995 Act,a person having parental responsibilities or parental rights by virtue of section 11(12) of the 1995 Act,a parent having parental responsibility for the child under Part 1 of the 1989 Act,a person having parental responsibility for the child by virtue of—section 12(2) of the 1989 Act,section 14C of the 1989 Act, orsection 25(3) of the Adoption and Children Act 2002 (c.38),a parent having parental responsibility for the child under Part 2 of the 1995 Order,a person having parental responsibility for the child under Article 12(2) of the 1995 Order,a person in whom parental responsibilities or parental rights are vested by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007 (asp 4)),

• “supported person” means—where support is to be provided (wholly or partly) to the child or a member of the child's family who is also a child—if the child to whom support is to be provided is under 16 years of age, an appropriate person,if the child to whom support is to be provided is 16 years of age or over, the child,where support is to be provided (wholly or partly) to a member of the child's family who is not a child, that person.

Provision of information about self-directed support

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• (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.