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Publication - Guidance

Carers (Scotland) Act 2016: statutory guidance

Statutory guidance to accompany the Carers (Scotland) Act 2016.

150 page PDF

1.2 MB

150 page PDF

1.2 MB

Contents
Carers (Scotland) Act 2016: statutory guidance
Part 3, Provision of support to carers Chapter 1

150 page PDF

1.2 MB

Part 3, Provision of support to carers
Chapter 1

Local Eligibility Criteria – Existing Statutory Guidance

3.1.1 Section 21 of the Act requires each local authority to set local eligibility criteria. These are the criteria by which the local authority must determine whether it is required to provide support to carers to meet carers’ identified needs

3.1.2 Statutory guidance on the duty to set local eligibility criteria issued in November 2017 [41] . This guidance will not be amended further while initial local eligibility criteria are being set between now and 1 April 2018.

3.1.3 After that date, the intention is to incorporate local eligibility criteria guidance into the main Carers Act guidance package so that it can be used when reviewing and revising local eligibility criteria under section 22.

Part 3, Chapter 2

Duty to provide support to carers

Summary

Section 24 creates powers and duties to provide support to carers. These fall on the responsible local authority – meaning the local authority for the area in which the cared-for person resides.

Section 25 creates a related duty to consider whether the support provided under section 24(4)(a) (duty to provide support to meet the carer’s eligible needs) and under section 24(4)(b) (discretionary power to provide support to meet the carer’s other identified needs) should take the form of, or include, a break from caring.

Section 26 makes consequential amendments to the Social Work (Scotland) Act 1968 regarding charging for support provided to carers.

Local authority functions under sections 24 and 25, must be delegated to the integration authority, so far as they relate to adults. This requirement arises under the Public Bodies (Joint Working) (Prescribed Local Authority Functions etc.) (Scotland) Amendment Regulations 2017 [42] and the Public Bodies (Joint Working) (Prescribed Local Authority Functions etc.) (Scotland) Amendment (No.2) Regulations 2017 [43] .

Reasons for duty to provide support to carers

3.2.1. The duty to provide support to carers at section 24(4)(a) is intended to ensure support is provided to carers is in a more consistent way across Scotland. The duty is subject to a carer having eligible needs which meet the local eligibility criteria. Guidance on the duty to set local eligibility criteria is covered in Chapter 1 of this Part.

3.2.2. The power at section 24(4)(b) to support carers with identified needs which do not meet the local eligibility criteria provides a mechanism for preventative support to this group [44] .

3.2.3. Each carer’s identified needs (if any) will be set out in the adult carer support plan or young carer statement as appropriate.

3.2.4. The ‘carer support pathway’ at Figure 1 provides a very high level summary of the overall approach set out in more detail in this chapter.

Figure 1: Carer support pathway

Figure 1: Carer support pathway

Meeting carers’ identified needs by provision of support to cared-for person, general services and information and advice

3.2.5. As set out in section 24(1)(a) and (b), the duty and power to provide support to carers only apply where a carer has identified needs which cannot be met by services or assistance:

  • provided to the cared-for person; or
  • provided generally to persons in the area of the responsible local authority or, where the carer does not reside in the area of that authority, in the area where the carer resides.

3.2.6. Therefore, the local eligibility criteria for carer support are not relevant insofar as the carer’s identified needs in an adult carer support plan ( ACSP) or young carer statement ( YCS) can be met by:

  • support to the cared-for person in consequence of an assessment of their needs and outcomes; or
  • universal services or support which the local authority provides to the public at large (e.g. leisure and recreation, adult education, or transport services); or
  • support that is available to all carers (e.g. universal services).

3.2.7. Relevant examples of services or assistance to the cared-for person include housing adaptations, Technology Enabled Care ( TEC), powered wheelchairs, improved medicine management and care at home. It is possible that support provided to the cared-for person when they are away from the carer might help to achieve the carer’s agreed personal outcomes.

3.2.8. Support being provided to the cared-for person will often have an impact on the situation of the carer (and sometimes vice versa). In most cases, the provision of support to the cared-for person will mean that the carer has a reduction in caring responsibilities. This could happen where the responsible local authority arranges for a paid care worker to provide assistance to the cared-for person for a particular period in their own home as part of their support plan. Annex A provides further guidance where there may be interaction between ACSP and YCS and an assessment of the cared-for person’s outcomes and needs for support.

3.2.9. In other cases, the caring responsibilities will remain, but they may be less onerous as a result of a service provided to the cared-for person (for example, the provision of a hoist, housing adaptations or TEC).

3.2.10. It is necessary to consider, and take into account, whether the carer has multiple caring responsibilities.

Example – multiple caring responsibilities
A carer of a child with autism may have other caring responsibilities (such as caring for a parent with dementia which are mainly undertaken when the child is at school).

In this situation, the carer may not be able to have time for themselves and might have eligible needs. This would be identified in the adult carer support plan.

3.2.11. It is also possible that the carer’s identified needs might be met by universal services available to the public at large, or by accessing support arranged via a local carer centre (e.g. peer-to-peer support, advocacy, or training).

Duty to provide support to meet eligible needs

3.2.12. Sections 24(2) to 24(4) set out the process for determining if carers have identified needs which meet the local eligibility criteria. Where there are eligible needs, the responsible local authority must provide support to meet those needs. For any support under section 24, the carer must be given the opportunity to choose one of the options for self-directed support unless the authority considers that the carer is ineligible to receive direct payments [45] .

3.2.13. In the case of young carers under the age of 16, the support to be provided is to ‘an appropriate person’ including parent, guardian, etc. [46] .

How do identified needs become eligible needs?

Process

3.2.14. There is a process to be worked through to establish whether a local authority has a duty to provide support to a carer to meet their identified needs. The duty (as opposed to the power) to provide support to a carer depends on the extent to which a carer’s need for support meets the local eligibility criteria.

This process is as follows:
(i) Establish carer’s identified personal outcomes and identified needs (if any) by preparing ACSP or YCS (section 6(1)(a) and (b) and section 12(1)(a) and (b)) [47]

(ii) Consider which of the identified needs can be met through services or assistance either to the cared-for person (other than ‘replacement care’ to provide a break from caring) or provided generally to persons in the area (i.e. by information and advice, universal services and community support) (section 24(1)(a) and (b))

(iii) If identified needs are met wholly as per (ii), no further action (but keep under review) (section 9(1)(l) and section 15(1)(m) in relation to review))

(iv) If identified needs are met only in part by (ii), or not at all, then apply local eligibility criteria to what are the ‘outstanding’ needs (section 24(2) and (3))

(v) Establish whether the outstanding needs meet the local eligibility criteria and therefore engage the legal duty to provide support (section 24(4)(a))

(vi) If the outstanding needs do not meet the local eligibility criteria, decide whether the discretionary power to provide support should be used (section 24(4)(b))

(vii) In the case of (v) and (vi), consider whether the support to the carer should include or take the form of a break from caring (including replacement care where required) (section 25(1))

(viii) In the case of (v) and (vi), give the carer the opportunity to choose one of the options for self-directed support (unless ineligible to receive direct payments) (Social Care (Self-directed Support) (Scotland) Act 2013)

Relationship between ACSP/ YCS, information and advice, local eligibility criteria and provision of support

3.2.15. Sections 6(1)(c) and 12(1)(c) require the ACSP and YCS to set out the support (if any) to be provided by the responsible (local) authority to an adult or young carer to meet the carer’s identified needs.

3.2.16. The process starts from when the local authority begins to collect information about the carer, and will be an integral part of the carer’s journey through the care and support system as their needs change. It should not just be seen as a gateway to care and support, but should be a critical intervention in its own right, which can help carers to understand their own situation and the needs they have, to reduce or delay the onset of greater needs, and to access support when they require it. It can also help carers to understand their strengths and capabilities, and the support available to them in the community and through other networks and services.

3.2.17. Regardless of whether, in fact, the carer is identified as having any support needs, they should be able to access preventative information and advice services, facilities or resources provided by the local authority or which might otherwise be available in the community. This is because the responsible local authority must provide appropriate information and advice services for all relevant carers, whether or not those carers have an ACSP or YCS in place or any identified needs. This duty is considered further in Part 6.

3.2.18. The ACSP and YCS are both based on an outcomes focused conversation to determine personal outcomes and identify needs. As part of the assessment process, the local authority considers the capacity of the carer to manage their needs or achieve the outcomes which matter to them, and allows for access to preventative support before a decision is made on whether the carer has eligible needs.

3.2.19. Next, the local authority must apply the local eligibility criteria to decide through a professional judgment which of the identified needs are eligible needs.

3.2.20. The ACSP/ YCS and local eligibility criteria provide a framework to identify any level of need for care and support so that responsible local authorities can consider how to provide a proportionate response at the right time, based on the individual’s needs and personal outcomes.

3.2.21. Decisions about whether identified needs meet local eligibility criteria depend on the information obtained from the ACSP and YCS (notably information on the nature and extent of care; the impact of caring; and the extent to which the carer is willing and able to provide care). In other words, such decisions, and the completion of the adult carer support plan or young carer statement (with information on carer support to be provided), are mutually dependent.

3.2.22. Where a carer has some needs that are eligible, and also has some other needs that are not deemed to be eligible, the local authority must provide information and advice on services, facilities or resources that would contribute to preventing, reducing or delaying the needs which are not eligible. This should be aligned and be consistent with the ACSP and YCS. Part 6 of this guidance deals with the duty to provide information and advice.

3.2.23. The ACSP/ YCS and eligibility framework provide for ongoing engagement with the carer so that, where they have eligible needs, they are involved in the arrangements put in place to deliver the personal outcomes they want to achieve.

3.2.24. The ACSP/ YCS should be person-centred, involving the individual carer, the views of the cared-for person, or any other person they might want involved. A carer with their own care needs could, for example, ask for their GP or a district nurse to be contacted to provide information relevant to their needs.

Learning from pilots
One of the areas piloting the adult carer support plan and duty to support provisions, has stated that it is essential that carers are engaged with and involved at every stage as it helps them to take ownership of their ACSP. This will increase the awareness of the caring role, encouraging carers to identify themselves, understand their rights and the supports available for them.

Young carers

3.2.25. The unique needs of young carers should be considered when assessing eligible need and putting support in place. Children and young people should not undertake inappropriate or excessive caring roles that may have an impact on their development. A young carer becomes vulnerable when their caring role risks impacting upon their emotional or physical wellbeing and their prospects in education and life.

3.2.26. A responsible authority may become aware that a child is carrying out a caring role through an assessment or informed through family members or a school. Authorities should consider how supporting the cared-for person can prevent the young carer from undertaking excessive or inappropriate care and support responsibilities. Where a young carer is identified, the responsible authority must undertake a YCS if that offer is accepted.

Prevention

3.2.27. Maintaining and improving support to carers is central to local authority and partnership preventative strategies and is a key priority for health and social care partnerships. Prevention and early intervention are at the heart of the carer support system, and even if a carer has needs that are not eligible at that time, they should still be able to access preventative support including the information and advice services which the local authority is required to provide under the Act. Responsible local authorities are also recommended to consider the carer’s own strengths or if any other support might be available in the community to meet their needs.

3.2.28. This means that local authorities need to consider how carers access and benefit from universal services such as education, leisure and transport and the provision of carers’ information and advice services, including welfare rights and financial advice. Local authorities also need to consider how community-based support can be further developed to support carers. This includes services provided by carers centres and the wider third sector.

3.2.29. It also means that adult carer support plans and young carer statements need to consider support needs in the round, and not only focus on the more intensive services that may be required by carers where the impact of their caring role and their support needs meet eligibility thresholds.

Non-eligible and eligible needs

3.2.30. Section 24(4)(a) of the Act requires the responsible local authority to provide support to a carer to meet their ‘eligible needs’. A carer’s ‘eligible needs’ are those identified needs for support that cannot be met through support to the cared-for person or through accessing services that are available generally, and which meet the threshold for support set by the local eligibility criteria.

3.2.31. Section 24(4)(b) gives the responsible local authority a power to provide support to meet other identified needs which cannot be met through support to the cared-for person, or services available generally, but which do not meet the threshold for support set by the eligibility criteria (i.e. non ‘eligible needs’).

3.2.32. Table 3 summarises the different ways in which eligible and non-eligible needs can be met, and provides examples of the types of support that can be provided to meet those needs.

Table 3: How to meet a carer’s identified needs

Type of support Illustrative Examples
Services or assistance to the cared-for person (other than care provided in order to provide the carer with a break from caring – i.e. ‘replacement care’).
  • care at home
  • technology enabled care
  • equipment and adaptations
  • mental health services
  • medicine management
  • support to access activities for disabled children
General services – information and advice. Information and/or advice on:
  • carers’ rights
  • education and training (e.g. on support at school, advice on Further and Higher Education)
  • income maximisation
  • carer advocacy
  • health and wellbeing
  • bereavement support
  • emergency care planning and future care planning
Other general services – available universally in the community or in particular neighbourhoods.
  • leisure centres
  • libraries
  • art galleries
  • community transport
  • lunch clubs
  • youth clubs
  • education services
  • gardening clubs
  • walking clubs
  • local support groups
A carer’s identified needs - both eligible or non-eligible needs – might be met in whole or in part by any combination of services or assistance for the cared-for person or general services above. Where they are not, the following applies.
LA duty at section 24(4)(a) to provide support to meet a carers eligible needs (explained above). This can be any type of carer support that is not, or cannot be, provided through services for the cared-for person or services that are available generally.
  • course on emotional wellbeing
  • counselling
  • training on moving and handling
  • short break (noting LA duty at section 25 to consider whether support to a carer should include a break from caring)
  • replacement care (care for a cared-for person to allow their carer to take a break)
  • support to access leisure pursuits
LA power at section 24(4)(b) to provide support to meet a carer’s non-eligible needs. Again, this can be any type of carer support not covered by services for the cared-for person or general services above.
Under both the duty and power to support carers (at section 24(4)) the responsible local authority must give the carer the opportunity to choose one of the options for Self-directed support (unless the local authority considers that the carer is ineligible to receive direct payments). These options are explained in Table 4.

Options for Self-directed support

3.2.33. As noted earlier in this chapter, where the responsible local authority exercises either its duty to provide support to the carer to meet the carer’s eligible needs or its power to meet the carer’s other identified needs, the carer must be given the opportunity to choose one of the options for self-directed support (unless the local authority considers that the carer is ineligible to receive direct payments) [48] .

3.2.34. Where support services such as general carer training courses, counselling or support groups are openly accessible for carers through a local carers centre (without local eligibility criteria being applied), these universal services are not provided under section 24 of the Carers Act and therefore the requirement to offer options for self-directed support does not apply. A wide range of personal outcomes and identified needs may be met through such preventative carer support services.

3.2.35. Examples of how carers might address their identified needs under options 1-3 of Self-directed support are provided in the statutory guidance which accompanies the Social Care (Self-directed Support) (Scotland) Act 2013 [49] . These examples are reproduced (with slight adjustment) in Table 4 below. They show that support to carers can take many forms.

Table 4: Examples of support to carers

2013 Act option Example
Option 1
Direct payment
Example 1
An adult carer who lives in a remote rural area is feeling increasingly isolated and depressed. She has no friends or family living nearby and her nearest carers' centre is miles away. The carer uses a direct payment to pay for the installation of broadband and for a tablet computer. This means she can keep in touch with her family and friends through video-calls and email, particularly her grandchildren who live overseas. She has also made friends with other carers on an online forum and now feels more connected and supported.

Example 2
A young carer who cares for his mother expresses that he has not been able to have the same opportunities as his peers. Whilst all his friends are learning to drive, he cannot because his mother cannot afford the cost and because of his caring role he cannot take on a part-time job in order to earn extra money. He thinks that having a driving licence would be useful as the family could get a Motability car, which would help with a lot of the tasks around his caring role such as shopping and taking his mum to places. He also thinks that being able to drive would open up more job opportunities. The young carer uses his direct payment to pay for several driving lessons and the cost of the driving tests.

Example 3
A carer lives in a rural area with a cared-for person who attends a day centre twice a week. The carer, who can’t drive and isn’t on a bus route uses her direct payment for a regular taxi to visit her nearest swimming pool, to make the most of her time away from her caring role.
Option 2
Directing the available support
Example 1
A carer has never had a break from caring. He would like to have a break of an afternoon each week to have a rest where he doesn't have to worry about the safety of the person he cares for. The carer receives a carer's short break voucher [50] and he uses this to purchase a short break.

Example 2
The authority arranges for an individual service fund ( ISF) to be set up to support the carer. This carer has always been very house-proud, but her husband has had a stroke and the level of care that she has to provide means that she is falling behind with housework and laundry, which is making her feel increasingly tired and depressed. The carer uses the individual service fund to purchase domestic help from an agency so that someone can come in and help with cleaning, ironing and other domestic tasks. The carer also uses the ISF to pay for a fortnightly visit from a care worker so that she can meet her daughter for lunch and have a break from caring.
Option 3
Arranged services
Example 1
After the death of his father, a carer is finding caring for his mother, who has dementia, emotionally draining and he is becoming very depressed. He is on a waiting list for NHS counselling services but has been told it may take a long time and his local carers centre does not offer this service. The authority arranges for the carer to attend a private counsellor to help him manage issues of bereavement and caring.

Example 2
A carer talks about missing out on making new friends as she never has time because of her caring role. She expresses an interest in attending an art class in a local authority community centre. The authority arranges for the carer to attend the class and arranges replacement care for the person she cares for once a week.
NB: The art class would be categorised under the Carers Act as general services and enabling the carer to attend this class would be providing general services. The provision of replacement care would be either under the power or duty to support the carer (depending on whether her needs met the local eligibility criteria) and would be non-chargeable.

Special cases: Carers of two people and cross border caring

Adult carers, caring for people in more than one local authority area

3.2.36. There may be instances where an adult carer is caring for more than one person across different local authority areas. For example, where a parent caring for a child with a long-term condition is also providing care for their own parent. In such circumstances both local authorities where the cared-for persons are living have responsibility to:

  • offer and conduct an adult carer support plan; and
  • provide support to the carer (subject to the two local authorities’, potentially different, eligibility criteria) which might involve providing support to cared-for person.

3.2.37. Local authorities in these circumstances are recommended to work together in these circumstances so that they can jointly:

  • achieve an outcomes focus for the individual carer;
  • minimise the need for the carer to give the same information twice;
  • make decisions on support and eligibility based on a shared understanding of the total impact of the carer’s caring responsibilities; and
  • avoid duplication of effort.

3.2.38. Whilst each local authority’s eligibility criteria would be relevant in its own decision making about support, collaboration is recommended between each area in that decision making process.

3.2.39. Decisions about sharing the costs of carer support in these circumstances are a matter for the local authorities involved, however it is recommended that a 50:50 split for carer support is a sensible default position. Any additional support for the cared-for persons would be a matter for their respective local authorities.

Young carers, caring for people in more than one local authority area

3.2.40. Situations in which a young carer is caring for more than one person across different local authority areas are not common, however there may be a small number of instances where this occurs. For example, where a child of parents who have separated, and who both have a long term condition or mental health issue.

3.2.41. In such circumstances the duty (or power) to provide support to the young carer falls to each of the local authorities where the cared-for persons reside.

3.2.42. Similar to adult carers, each local authority’s eligibility criteria would be relevant in its own decision making about support, however we recommend collaboration between each area in that decision making process.

Carer in Scotland caring for someone outwith Scotland

3.2.43. The Carers (Scotland) Act does not create any duty to support the carer where the cared-for person lives outwith Scotland. Carers are still able to access local carer support such as: carer centre services; Citizens Advice Bureaux; advice shops; council helplines; and local authorities’ information and advice services.

3.2.44. Scottish local authorities may still have responsibilities to support young carers by virtue of their wider duties or powers to support them as children under the Children and Young People (Scotland) Act 2014 [51] .

3.2.45. A carer living in Scotland who cares for someone outwith Scotland may be eligible for support from the local authority in which the cared-for person resides. In these instances, it would be a matter for the relevant local authority in England or Wales, or the Health and Social Care ( HSC) Trust in Northern Ireland to make decisions under the relevant legislation in those countries.

For information – statutory provision for carers in other UK jurisdictions
There is a duty for English local authorities to support an adult carer under section 20 of the Care Act 2014 [52] where the cared-for person lives in England.

Obligations on Welsh local authorities relevant to carers are set out in part 3 [53] and part 4 [54] of the code of practice that underpin the Social Services and Well-being (Wales) Act 2014 [55] .

The Carers and Direct Payments Act (Northern Ireland) 2002 [56] imposes a duty on Health and Social Care ( HSC) Trusts to inform carers of their right to an assessment of their needs and to carry out the assessment, if they so wish. This only applies to those carers of individuals whom the HSC Trust would ordinarily provide social care services to (i.e. Northern Ireland residents).

Carer outwith Scotland caring for someone in Scotland

3.2.46. Instances where a carer outwith Scotland is caring for someone residing in Scotland may also occur. For example, where:

  • a carer looking after a family member or friend provides emotional support, liaises with statutory services, and arranges other help from a distance (who may or may not visit regularly to provide hands-on assistance); or
  • a carer looking after a family member or friend nearby, just over the border.

3.2.47. For adult carers, the Scottish local authority where the cared-for person lives has a duty to offer an adult carer support plan and support the carer under the Act, and subject to local eligibility criteria.

3.2.48. For young carers in this situation, the Act has not created a duty for the Scottish local authorities of the cared-for person to offer a young carer statement. This is because the ‘responsible authority’ for a young carer statement, under sections 19 and 20, is determined by the young carer’s own circumstances, rather than those of the cared-for person.

3.2.49. As a consequence, because the duty to support young carers under the Act is dependent on the existence of a young carer statement, there is no duty or power for Scottish local authorities of the cared-for person to support the young carer.

3.2.50. Subject to the normal requirements on consent to sharing of information, the Scottish local authority of the cared-for person must ensure that the local authority where the young carer lives is aware of their circumstances.

Carers who are also service users

3.2.51. Annex B provides guidance on carers who are also service users (adults or children with support needs). This issue is also discussed in Part 3, Chapter 3 on waiving of charges and replacement care.

Provision of support to carers: breaks from caring

3.2.52. Section 25(1) requires a local authority, in determining which support to provide to a carer under section 24(4), to consider whether the support should take the form of or include a break from caring. Under sections 9(k) and 15(l), the ACSP and YCS must contain information about whether support should be provided in the form of a break from caring.

3.2.53. The intention of these provisions is to ensure local authorities consider breaks tailored to the needs of individual carers as a mainstream form of support.

3.2.54. This requires local authorities to consider with each individual carer if their personal outcomes and needs for support should be met by a break from caring. It does not create a duty to provide a break from caring in every case.

3.2.55. A ‘break from caring’ can be any form of support that enables a carer to have time away from their normal caring responsibilities.

3.2.56. The form of support that enables a break from caring will frequently include provision of ‘replacement care’ for the cared-for person, either on its own or alongside other services that the local authority can provide under section 24 of the Act. Other forms of support can include, for example, assistive technology, or short breaks.

3.2.57. A carer might have identified needs which meet the local eligibility criteria, and may be assessed as requiring a break from caring. If the carer cannot take that break without replacement care being provided by the statutory or voluntary sectors rather than by friends, family or neighbours, then the local authority duty under section 24(4)(a) of the Act would include providing or arranging the replacement care, whether or not the cared-for person has eligible social care needs in their own right.

3.2.58. In other words, replacement care is not restricted to cared-for people who meet local social care eligibility. The duties and powers of local authorities under section 24(4) in respect of breaks from caring may as a consequence require replacement care to be provided or arranged for the cared-for person.

Approaches to delivering short breaks as a form of support

3.2.59. Short breaks are one of many forms of support that can enable a carer to realise their personal outcomes. In establishing and maintaining an appropriate range of short breaks services, local authorities are strongly encouraged to consider the following types of short breaks, some of which are already making a real difference to carers and those that they care for. These include, but are not limited to:

  • holiday or leisure breaks (with or without the cared-for person);
  • sports and activity breaks (with or without the cared-for person);
  • breaks at home during the day or overnight (with support from a care at home service); and
  • play-schemes or after school clubs for the cared-for person.

3.2.60. Short breaks can be taken with or without the cared-for person. The consideration of delivering short breaks as a form of support offer local authorities an opportunity to provide more holistic services to carers, cared-for persons, and wider family networks if appropriate.

3.2.61. Whilst there is no definition in the Act of what constitutes a short break, local authorities are encouraged to consider the paper provided by Shared Care Scotland attached at Annex C . This paper may also be useful for local authorities when preparing the short breaks services statement under section 35 of the Act. Guidance for short breaks services statements is set out in Part 6.

3.2.62. Local authorities are encouraged to foster innovative approaches to provide short breaks that seek to maximise the potential of voluntary and third sector contribution. Community-led approaches could be considered in extending the range and providing a good choice of high-quality short breaks to carers to meet their personal outcomes.

3.2.63. Shared Care Scotland produce ‘Short Break Stories’ [57] which facilitate good practice sharing and learning by hosting case studies from across Scotland. The Learning Exchange [58] also curates examples of good practice.

Example – Brokerage Model
Brokerage is a way of working that requires a tailored and flexible approach. Brokerage helps carers plan towards the life they want through the development of long-term, sustainable outcomes. The aim is to help carers to resolve any problems that are preventing them having a more balanced life with access to opportunities outside their caring role.

A brokerage support worker can establish with the carer what outcomes they would like to achieve, work out the resources, make a plan, and then help to arrange any services or support that will help achieve these outcomes.

Example – Voucher Schemes
The use of short break voucher schemes can be a supportive and preventative measure. There is scope to support carers by providing breaks from caring on a preventative basis, even if the carer does not have eligible needs, by using the discretionary power rather than the duty in the Carers Act.

Carers who are registered with Perth and Kinross Council or with PKAVS can be offered free complementary therapy sessions. They receive a voucher pack which includes an approved provider list of therapists and 12 vouchers. These vouchers have a one year expiration from the date of issue.

The control is in the carer’s hands, with the flexibility to contact the therapist of their choice and arrange appointments to suit their schedule.

Example – Respitality
Respitality [59] brings together carers centres with the Scottish hospitality sector encouraging relationships to be built between carers centres and local hotels, B&Bs, restaurants and local leisure providers (including local authorities) who provide free shorts breaks to carers. This can include overnight stays, meals out, spa days, or beauty treatments – whatever gift the business chooses to offer.

Hospitality and leisure organisations recognise the benefits of being carer aware, helping to promote their business in communities across Scotland, and helping to promote inclusive growth. This community approach to short breaks means a wider choice of short breaks could be provided much closer to the carer.

3.2.64. Section 25(2)(a) allow Scottish Ministers to make regulations about the form of support that may be provided as a break from caring. Scottish Ministers have not used this power for commencement of the Act.

When care for the cared-for person cannot be agreed to enable a break from caring

3.2.65. Section 25(2)(b) allows Scottish Ministers to make regulations about the processes required where there may be a disagreement between the carer and the cared-for person about the provision of care for the cared-for person, which would enable the carer to have a break from caring. Scottish Ministers are not using this power at this time but guidance is provided below.

3.2.66. When determining the support to be provided to a carer under section 24(4) and section 25 practitioners need to consider the relationships between the carer and the cared-for person. There may be stress and tension in the relationship. In some cases, the carer and the cared-for person may be unable to agree on the way in which support is provided.

3.2.67. In such circumstances, it is recommended that local authorities:

  • take into consideration the perspectives of both the cared-for person and the carer;
  • work closely with the cared-for person, the carer and other family members to seek to resolve situations and provide support where the cared-for person does not want an assessment or re-assessment of their needs, or to accept services suggested by the carer’s adult carer support plan;
  • consider whether the cared-for person has the legal capacity to make the decision to refuse an assessment or support, and if not consider the implications of the Adults with Incapacity (Scotland) Act 2000 for both the carer and the cared-for person;
  • remember that services cannot be imposed on the cared-for person if they have the capacity to refuse them;
  • consider that the cared-for person’s capacity to consent to replacement care being proposed also links with statutory duties to ensure that cared-for persons are supported to be involved in decision making about their own care;
  • recognise that tension can arise when either the cared-for person’s or carer’s ability to communicate is affected by illness, disability or mental health;
  • recognise that tension can arise where either the cared-for person’s or carer’s first language is not English, and one person interprets for the other;
  • recognise that the cared-for person must be offered choices in how replacement care is provided via the Self-directed Support legislation;
  • provide access to mediation and advocacy services where necessary, which can play and important role in exploring and resolving tensions between the carer and cared-for person; and
  • provide access to translation and interpretation services where necessary.

3.2.68. There may be situations when it is necessary to identify who is the legal proxy of the adult cared-for person. Local authorities should seek to clarify the circumstances where the cared-for person has a legal proxy, such as a welfare power of attorney or welfare guardian, in addition to where another family member undertakes the main caring role and views themself as the carer of the cared-for person. In this context, local authorities may wish to consider the Adults with Incapacity (Scotland) Act 2000 Code of Practice for local authorities [60] .

3.2.69. It should be recognised that that any carer who is acting under a power of attorney or a guardianship order under the Adults with Incapacity (Scotland) Act 2000 [61] is also obliged to act under the principles of this legislation. In essence this means that the least restrictive actions are the ones that should be taken and the carer should be ensuring that, as well as involving the cared-for person in decision making, all decisions should reflect the will and preferences of the cared-for person..

3.2.70. There may be circumstances where another person is the cared-for person’s ‘named person’ under the Mental Health (Care and Treatment) (Scotland) Act 2003 [62] but another family member undertakes the main caring role. ‘The New Mental Health Act: A Guide to Named Persons [63] ’ provides useful information for local authorities on the role and responsibilities of named persons

3.2.71. There may be circumstances where there are tensions between the adult carer and the cared-for person, where the cared-for person is a disabled child. Responsible authorities may wish to consider the ‘National Guidance for Child Protection in Scotland’ (2014) [64] where appropriate in addition to following their own child protection procedures.

Planning Breaks from Caring

3.2.72. Section 25(3) sets out that a break from caring can be provided on a regular basis or on a temporary basis, and may be provided for varying periods of time. This means that a break from caring can be provided during the day or overnight, and can be a regular or temporary arrangement.

3.2.73. Section 25(4) sets out that a local authority must have regard to the desirability of breaks from caring being provided on a planned basis. This means that the consideration of a break from caring is not only in response to a crisis situation.

3.2.74. Breaks from caring are likely to be more effective in meeting a carer’s identified needs if they are planned over a longer-term period in order to give the carer some certainty over what will be provided to them. Several breaks planned in advance rather than one-off breaks are likely to lead to enhanced health and wellbeing for the carer and cared-for person.

Promoting variety in the market

3.2.75. Section 25(5) sets out that section 19(2) of the SDS Act applies in relation to support provided as a break from caring as it applies in relation to any other support.

3.2.76. Section 19(2) of the SDS Act provides for the promotion of options for self-directed support, i.e., promoting variety in the market. The express reference to breaks from caring makes clear that local authorities should promote a variety of options for these types of service provision (both in terms of support provided by the local authority directly, and other service providers). This can be alongside other preventative support for the carer.

3.2.77. By proactively shaping a relevant and diverse market of provision to support carers, local authorities will be able to more effectively deliver breaks from caring that are appropriate and convenient for the carer’s individual circumstances, contributing towards a preventative and personal outcomes approach.

Part 3, Chapter 3

Waiving of charges and replacement care

Background to this guidance

3.3.1. This chapter replaces the ;Statutory guidance to accompany section 3 of the Social Care (Self-directed Support) (Scotland) Act 2013 and the Carers (Waiving of Charges for Support) (Scotland) Regulations 2014. It provides guidance on waiving of charges for support to carers.

3.3.2. This chapter also provides related guidance to assist in determining whether support should be treated as provided to a carer or to the person they care for. Support provided to a carer will often be closely linked to provision of support to the person they care for. The close links between support to carers and support to the people they care for are recognised in and built into the Act as a key element when:

  • preparing ACSPs and YCSs;
  • assessing whether a carer has eligible needs; and
  • considering how to meet the carer’s eligible and other identified needs, including through breaks from caring.

3.3.3. As set out below, charges for support to carers must be waived under the Carers (Waiving of Charges for Support) (Scotland) Regulations 2014 whereas support to cared-for people may be charged for. It is therefore necessary to establish whether support is being provided to the carer or cared-for person [65] in order to establish whether it may be chargeable.

3.3.4. This is particularly relevant in relation to providing ‘replacement care’, i.e. care provided to the cared-for person, which replaces care normally given by the carer and which is provided as a form of support to the carer so the carer can have a break from caring. The final part of this chapter deals with when care provided to a cared-for person is a form of support to a carer in order to allow that carer to have a break from caring.

Waiving of charges – legislative framework

3.3.5. The Carers (Waiving of Charges for Support) (Scotland) Regulations 2014 [66] (the ‘2014 Regulations’) require local authorities to waive charges[67] in relation to support provided to carers [68] .

3.3.6. Similarly, the Self-directed Support (Direct Payments) (Scotland) Regulations 2014 prevent local authorities means testing or requiring a contribution from a carer where carer support is being delivered by way of a direct payment.

3.3.7. This means that charges cannot be made for support provided to carers either directly by local authorities or commissioned by the local authority through other statutory, independent and third sector bodies [69] .

Waiving of charges and the Act

3.3.8. Part 3, Chapter 2 of this guidance covers local authorities’ duty and power to support carers under section 24 of the Act. These replaced powers to support carers under section 3(4) of the Social Care (Self-directed Support) (Scotland) Act 2013 (‘the 2013 Act’) and section 22 of the Children (Scotland) Act 1995 (the ‘1995 Act’).

3.3.9. The legislation on care charging has been updated [70] to ensure that the requirement for local authorities to waive charges for the support provided to carers remains the same but now refers to the power and duty to support carers under section 24(4) of the Act, rather than the previous powers to support carers under the 2013 Act and the 1995 Act.

Waiving of charges for carer support under the Act [71]

3.3.10. Charges must be waived for all support under section 24 of the Act in order to meet an individual carer’s identified needs as set out in their ACSP or YCS. Such support might include, but is not limited, to:

  • advocacy;
  • emotional support and counselling;
  • training for carers;
  • translation and interpretation services;
  • cost of transport to meet the carer’s identified needs;
  • breaks from caring that enable the carer to meet their personal outcomes (as set out in their ACSP or YCS), for example the cost of a leisure or other activity. The overall cost of a break from caring may include the cost of providing replacement care to the cared-for person (to replace that routinely provided by the carer) to enable the carer to take a break, recognising that the break would not be possible without replacement care; and
  • other personalised support.

3.3.11. There are challenges in deciding how certain forms of support, which arguably meet the needs of both the carer and the cared-for person, should be categorised, in order to determine whether the support may be charged for or whether charges should be waived. These challenges arise where the local authority has to decide whether it will provide:

  • support to the cared-for person to meet their assessed needs, the indirect consequence of which is not so much that the carer’s identified needs are met, but that the carer no longer has those needs; or
  • support to the carer to meet the carer’s identified needs, which could be through care or support to the cared-for person.

3.3.12. The difference is subtle but fundamental to the question of whether or not charges are to be waived. Further guidance is provided below on particular circumstances where it may not be straightforward to determine whether the support is for the carer – specifically, where the local authority decides to provide support with household tasks or support to enable breaks from caring.

Support unrelated to the caring role

3.3.13. Individuals who are carers may also receive support or services from local authorities for reasons unrelated to their caring responsibilities because of their own social care needs (e.g. due to a disability or mental health issue). Such support is not provided under section 24 of the Act and the local authority's normal financial assessment and charging policies apply. Annex B provides guidance on carers who are also service users (adults or children with support needs).

Support with household tasks

3.3.14. Where a carer’s identified needs are met as a result of support provided to the cared-for person, that is not support under section 24 of the Act, so normal local charging policies apply.

3.3.15. Where the local authority decides to provide support with housework or gardening, determining whether this is support for the cared-for person or support for the carer under section 24 of the Act may not be straightforward. These decisions are particularly difficult where the carer and cared-for person live together.

3.3.16. Cared-for persons can be assessed as needing help with household tasks and might be charged, according to the local authority's normal financial assessment and charging policies.

3.3.17. However, many carers have multiple responsibilities over and above their caring role. Where it is identified in the ACSP or YCS that support with household tasks will enable the carer to maintain their own health and wellbeing and continue to provide care, the local authority may decide to provide such support, as discussed at Part 3, Chapter 2.

3.3.18. It may be possible to meet the carer’s needs by providing support to the cared-for person. But where these identified needs ‘cannot be met by services … provided to the cared-for person’ then, support must or may be provided to the carer under section 24(4) of the Act. In such circumstances charges for the support would need to be waived. Part 3, Chapter 2 of the guidance deals with ‘services to the cared-for person’ under section 24 in more detail.

3.3.19. For example, a carer looks after an elderly parent with support needs and is struggling with the volume of household tasks in both the carer’s own home and their parent’s home. In this case, any support with household tasks at the parent’s home would be support for the cared-for person and normal local charging policies would apply. However, any support with household tasks at the carer’s home would be support for the carer under section 24 of the Act and therefore free of charge.

Breaks from caring

3.3.20. Section 25 of the Act requires responsible local authorities to consider whether support to meet a carer’s identified needs should take the form of or include a break from caring. Part 3, Chapter 2 of the guidance covers local authorities’ duty to consider breaks from caring as part of their power and duty to support carers; and explains that a break from caring can be any form of support that enables a carer to have time away from their normal caring responsibilities. This duty to consider breaks from caring applies whether the support is to be provided to meet eligible needs (under the duty to support) or to meet other identified needs which do not meet local eligibility criteria. If personalised support to the carer is to be provided in the form of a break from caring, the local authority must provide that break without making a charge.

3.3.21. The charge to be waived will cover the cost of all of the elements of the break that the local authority has decided to provide to meet the carer’s identified needs (having considered its local eligibility criteria).

Replacement care and breaks from caring

3.3.22. The issue of whether support is for the carer or the cared-for person has the potential to arise in the context of ‘replacement care’, which is provided in order to allow the carer a break from caring.

3.3.23. The Carers Act sets out a structured approach to identifying the nature of the caring role, the personal outcomes of a carer and that carer’s need for support in an ACSP/ YCS and considering whether those needs for support should be met through a break from caring, which may be facilitated by providing ‘replacement care’. An approach is set out below to establish whether care is support to the carer, i.e. replacement care.

3.3.24. The structured approach in the Act, together with this guidance, is intended to make it more straightforward for local authorities to determine whether care provided to the cared-for person should be treated as:

  • support provided to a carer under the Act in order to facilitate a break from caring – for which charges must be waived; or as
  • support provided to the cared-for person to meet their assessed needs – which may be charged for.

3.3.25. Where a carer’s needs for support are considered eligible and a break from caring is agreed as an appropriate form of support for the carer to meet those eligible needs, there will be a need to consider the provision of appropriate care for the cared-for person during the carer’s absence. In some cases, this may be provided by friends, family or other community supports; however, in other cases there may be a need for more formal ‘replacement’ care - for example, in circumstances where such alternative resources are not available or the cared-for person has complex care needs and requires specialist care provision.

3.3.26. Part 3, Chapter 2 provides guidance on the cared-for person’s agreement to provision of care in order to enable the carer to have a break from caring.

Explaining ‘replacement care’

3.3.27. ‘Replacement care’ is not a term used in the Act. It is used in this guidance as a shorthand to cover care provided to the cared-for person, which replaces care previously given by the carer and which is provided as a form of support to the carer so the carer can have a break from caring.

3.3.28. However, not all care provided, arranged or funded by a public body which a cared-for person receives will necessarily be ‘replacement care’. It is recognised that it will not always be straightforward to determine whether care provided to a cared-for person is primarily to benefit them or primarily to benefit the carer. It will be necessary to exercise professional judgment and take the circumstances of the individual case into account in order to determine whether such care falls into the category of replacement care (i.e. support to the carer); or support for the cared-for person.

3.3.29. There may be cases where it appears that support which enables a break from caring is of equal benefit to the carer and the cared-for person. In these circumstances, local authorities may wish to consider whether it would be appropriate to classify half of this as support for the carer and half as support for the cared-for person.

3.3.30. In making an assessment of whether or not care provided to a cared-for person is replacement care, the core question is: Is the care being provided to the cared-for person primarily in order to provide the carer with a break from caring?

3.3.31. This is a complex question but it can be broken down into the following questions, which may be useful prompts. These are considered in more detail below:

Question a: Is the care to be provided to the cared-for person?

Question b: Is the care provided to enable the carer to have a break?
Question b.i: Is the care replacing care previously given by the carer?
Question b.ii: Is the purpose of the care primarily in order for the carer to have a break?
Question b.iii: Aside from the need for a break, is the carer willing and able to resume their caring role after their break?
Question b.iv: For young carers, aside from the need for a break is it appropriate for them to continue caring?

Summary
Care provided by the local authority for the cared-for person would be support to the carer under section 24 of the Carers Act and therefore subject to the requirement to waive charges, where it is provided to enable the carer to have a break from caring and all of the following apply:
i) it is replacing care previously given by the carer;
ii) its primary purpose is in order for the carer to have a break from caring which in turn has been deemed a necessary form of support to meet the carer’s identified needs;
iii) it is replacing care which the carer is able and willing to provide, i.e. not where the carer is not well enough to continue providing the same level of care or has other commitments; and
iv) for young carers, it is not replacing care which would be inappropriate for the young carer.

Question a: Is care being provided to the cared-for person?

3.3.32. This should be self-evident but if the answer is ‘no’, it cannot be replacement care.

Question b: Is the care provided to enable the carer to have a break?

3.3.33. The answer to this question is not always straightforward. Various supplementary questions may be helpful in considering the response.

Question b, supplementary question i: Is the care to the cared-for person replacing care usually given by the carer?

3.3.34. In order to answer this question fully it is necessary to understand the caring role. The nature and extent of the care provided or to be provided will be recorded in the ACSP (section 9(1)(a)(i)) or YCS (section 15(1)(a)(i)).

3.3.35. In deciding whether something is ‘replacement care’ it is relevant to consider whether the care to the cared-for person is replacing care which the carer would otherwise have provided.

3.3.36. Care for the cared-for person may be provided to facilitate a break from caring as a form of support to a carer where it meets the carer’s identified needs. In such cases the care will usually replace care normally given by the unpaid carer

3.3.37. It is not necessary for the care provided to the cared-for person to be a like-for-like replacement for the care usually provided by the unpaid carer. There will be circumstances where the unpaid care usually provided by the carer cannot be exactly replicated by paid care.

Example
An example might be if a carer lived next door to the cared-for person and usually provided a range of regular care (e.g. shopping, emotional support, and checking in regularly with the person during the evenings or at night). It may not be possible to replicate this kind of care while the unpaid carer had a break. Instead the ‘replacement care’ might take another form, such as a short term home care package. The crucial factor is whether the care is provided to facilitate a break for the carer as a form of support provided under section 24 of the Carers Act, as considered below.

Question b, supplementary question ii: Is the purpose of the care primarily in order for the carer to have a break?

3.3.38. Support for the cared-for person provided primarily in order to meet that person’s needs may include day care to enable their independence and promote life skills and socialisation, play-schemes and out-of-school care provision for disabled children. This support may often deliver ancillary benefits of providing a break for unpaid carers. But they would not constitute ‘replacement care’ where they are primarily intended for the purpose of meeting the cared-for person’s needs and not the carer’s need for a break.

3.3.39. Breaks for cared-for persons can sometimes be identified within their own social care needs assessment and care services can be provided to mainly meet their assessed needs (e.g. to support social opportunities and independent living). Time-off for the carer can be achieved as a welcome consequence of the service. Such breaks for cared-for persons would not constitute ‘replacement care’. If, having considered its local eligibility criteria, the local authority decides that to meet the carer’s identified needs it will provide support to enable the carer to enjoy activities to make the most of this time off, this would be support under section 24 of the Act and therefore free of charge.

Question b, supplementary question iii: Aside from the need for a break, is the carer willing and able to resume their caring role after their break?

3.3.40. Information about the extent to which the carer is able and willing to provide care for the cared-for person must be included in the ACSP or YCS (under sections 9(1)(b) and 15(1)(b)). (See Chapters 2.1 and 2.2.)

3.3.41. Care to the cared-for person can only be considered to be enabling the carer to have a break if it is replacing care that the carer is otherwise willing and able to provide. In other words, where care to the cared-for person is needed because the carer is unable or unwilling to provide care then the care is not being provided to allow the carer to have a break. So care would not be considered replacement care if, for example, a carer was not willing or able to provide care because:

  • the carer is ill, in hospital or recovering at home and alternative care therefore needs to be provided for the cared-for person;
  • the carer wishes to work full or part-time and will stop or reduce the care they provide when they are in employment. Entering employment is not a form of break. Care provided in these circumstances would be purely to meet the cared-for person’s needs, rather than the carer’s needs under the ACSP/ YCS; or
  • the carer is no longer able or willing to provide the same level or type of care for health or other reasons, even with support.

Question b, supplementary question iv: For young carers, aside from the need for a break, is it appropriate for them to continue caring?

3.3.42. Young carer statements must include information about the extent to which the responsible authority considers that the nature and extent of the care provided by the young carer is appropriate [72] .

3.3.43. Care to the cared-for person would not be ‘replacement care’ in circumstances where it was provided in order to relieve the young carer of inappropriate caring responsibilities.

3.3.44. This could happen if the care provided by the young carer has been deemed to be inappropriate for reasons such as the age of the young carer, the nature of the care (e.g. personal care in inappropriate circumstances) and the extent of the care (e.g. too many hours of caring impacting adversely on the young carer’s health, wellbeing and education).

3.3.45. Although care provided by statutory agencies in these circumstances would be replacing the care which had been provided by the young carer, it would not do so in order to allow the carer to have a break to help sustain that caring situation. Instead it would be provided on a more permanent basis to relieve them of inappropriate caring responsibilities and ensure that the cared-for person’s needs are being met. The worked example below illustrates circumstances in which care to the cared-for person is and is not provided for the purposes of giving the carer a break.

Example
The personal outcome agreed in respect of a particular carer might be that she should feel less isolated and more resilient.

The carer will achieve this personal outcome by attending a weekly carer’s peer support group on a Saturday afternoon. This form of peer support will enable the carer to continue to provide care for her 20 year-old daughter (the cared-for person).

The daughter’s needs are such that she requires the constant presence of another person, and the carer usually provides that care except for when the daughter attends a day care centre, which she does from 10am to 4pm every weekday. The daughter’s day care placement has been arranged under her social care needs assessment. It provides the ancillary benefit of giving the carer a break but is not provided for that purpose so does not constitute replacement care.

If the carer needs a paid care worker to look after her daughter for a few hours every Saturday in order that she can attend the peer support group, that replacement care would be support which meets the carer’s identified needs and so is provided under section 24. Neither the carer nor the daughter would be charged for the replacement care.

On the other hand, if the peer support group meets at lunchtime on a Wednesday, there would be no requirement for replacement care in order for the carer to attend. The daughter’s placement at the day care on a Wednesday would not become replacement care just because the carer is now attending the peer support group at that time. Therefore, the local authority will still be able to charge the cared-for person for the provision of the day care placement service according to their own charging policies.

Breaks with the cared-for person

3.3.46. Where the carer and cared-for person have a break together with extra support for the cared-for person, this would normally be to enable both the carer and the cared-for person to have a break which meets both the cared-for person’s assessed needs and the carer’s identified needs (subject to local eligibility criteria). In such cases, charges for the cost of the break for the carer will be waived; but charges for the cost of the break for the cared-for person and the cost of the additional support will not be waived. In these circumstances it is expected that these costs of the additional support could be part of the cared-for person's assessed needs and subsequent support package.


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