Public Law

Some eagle-eyed readers may have seen my article on the legal rights of carers in the November edition of Scottish Policy Now. In the article, I talked about the importance of carers in the context of health and social care in Scotland and the surprisingly limited legal rights they currently enjoy. I mentioned that legal and policy landscape for Scottish carers looked set to change, with First Minister Alex Salmond having announced in October that there would be a consultation on new legislative to “promote, defend and extend” the rights of carers and young carers.

That consultation has now been launched. It sets out the Scottish Government’s proposals to improve outcomes and to provide better support to carers and young carers across Scotland. As anticipated, the aims of the proposed legislative reforms are to help ensure a consistent level of support for carers across Scotland and to improve the health and wellbeing of carers, by implementing preventative measures of support. Local authorities, health boards, voluntary organisations and carers themselves are invited to give their views by 16 April 2014. Key aspects of the proposals include:

  • Changing the name of “carer’s assessments” under section 12AA of the Social Work Scotland Act 1968 and section 24 of the Children (Scotland) Act 1995 to “Carer’s Support Plan”;
  • Removing the existing “substantial and regular” test for eligibility for a Carer’s Support Plan, meaning that the duty on local authorities to assess carers’ needs would no longer be limited to carers who provide a substantial amount of care on a regular basis. An adult carer would simply mean someone who provides or intends to provide care for another adult who is in need of care, or for a child needing care (except where the child needs care solely due to its age). This new definition would put carers on the same footing as service users in terms of access to an assessment;
  • A new duty on local authorities (or other bodies carrying out the assessment process, such as Health Boards or the Third Sector to whom a local authority has delegated its functions) to inform the carer of the length of time it is likely to take to receive the Carer’s Support Plan. If that time is exceeded, the carer will have a right to be given reasons;
  • Introducing a duty for local authorities to establish and maintain a service for providing people in its area with information and advice relating to the Carer’s Support Plan, support available for carers and the Carers Rights Charter (due to be published in the first half of 2014).

By far the most radical proposal, however, is the introduction of a statutory duty to support carers. The Social Care (Self-directed Support) (Scotland) Act 2013, which comes into force on 1 April this year, will create a discretionary power to support carers. If a local authority has assessed a carer and decides that the carer has needs, the authority then has to consider whether those needs could be met by the provision of support and decide whether to provide such support. The consultation is proposing taking matters a step further than that, by repealing the power to support carers and replacing it with a duty of support, linked to an eligibility framework (in the interests of consistency and in recognition of the fact that it would not be possible for local authorities to support all carers). Beyond a general duty to provide support, there is also a proposal to introduce a specific duty on local authorities to provide and promote short breaks.

What is particularly interesting, from a lawyers’ perspective, is that implementation of these proposals would create directly enforceable entitlement to support for carers, a feature which has been noticeably lacking from the Scottish social care system until now. The financial implications for local authorities could be significant. While it appears that the type of support envisaged as falling under the duty would be relatively modest items such as driving lessons, leisure activities, counselling, gym membership or buying a laptop, complying with this duty in practice could be costly, particularly if the eligibility framework was set quite widely. The creation of legal rights would also increase the likelihood of legal challenge by carers who were disappointed by an authority’s refusal to provide a particular form of support. If a carer could establish that the authority had breached its statutory duty to provide support, there would be limited scope for the authority to defend its position on financial grounds.

If you work for a local authority and are interested in these issues, you will soon have the opportunity to discuss them with us in person. Brodies will be attending both COSLA 2014 Conference and SOLAR Conference 2014 on 13 and 14 March this year. Please do drop us an email if there are any other topics you would like to discuss with us. We hope to see you there.

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