Regulations and Statutory Guidance to accompany the Social Care (Self-directed Support) (Scotland) Act 2013
10 July 2013
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Introduction
SCVO welcomes the opportunity to respond to the consultation on the above regulations which will drive implementation of the Self Directed Support (SDS) legislation. Our response covers some specific points in relation to the tone and emphasis of the guidance; specific issues arising from the current experience of older people, people with disabilities and unpaid carers. Lastly we highlight the opportunities arising from the current legislative and policy context to take forward public service reform. SCVO recognises the intention and spirit of the Self Directed Support legislation and the desire to seek a sea change in how social care is delivered. The feedback from carers’ and other organisations suggests that achieving this presents significant challenges, with bureaucratic procedures and tightening eligibility leading to families often having to “fight” for sometimes very small amounts of support. The guidance has a lot of work to do as a result of this. As implementation of the Self Directed Support strategy continues, with a range of third sector organisations operating in this context, it’s vital that the funding allied to this and implementation of the legislation is fully evaluated and we learn important, practical lessons about what works well and what doesn’t. The Scottish Government’s commitment to include case studies within the guidance is an important step in showing how SDS can work – not just for professionals but to ensure that service users and carers are better informed about what the SDS options are, what they could mean in reality and how to prepare for assessment processes. Effort in this area would be worth further investment and work.Regulation specific comments
Setting the right tone The need to drive change in how social care operates has never been greater and there is a real desire amongst disabled people’s organisations and carers’ organisations as well as across the third sector, to see power, choice and control shifted towards individuals and families. More widely, the vision within Christie is one where public services are empowering and build up resilience and autonomy. Self-directed support can contribute in this regard. To that end, the regulations must encourage new ways and approaches – they need to be ambitious and indeed inspirational. However, opening statements and some of the language used throughout the guidance seem almost to discourage the kind of innovation needed to shift power and control to service users and carers. As Age Scotland has pointed out, SDS can and should be empowering for individuals and families if properly presented. We would argue that the tone and emphasis within the guidance does not always contribute to this sense of empowerment. For example, in the first few sections of the guidance, and in the section on the Person’s Pathway, there is a very evident focus on needs, resources and risk – rather than a focus on clear outcomes, assets and achieving goals. There is a tone set which seems at times to emphasise and perhaps ‘endorse’ the current bureaucracy that surrounds social care assessment for families who struggle consistently to navigate complex, resource led systems. Awareness of risks is important in term of protecting people, but as the Coalition of Care and Support Providers in Scotland (CCPS) points out in its response, it is much more positive and effective to focus on risk enablement, and the realisation of key human rights, as indicated by the principles of the legislation. More could be made of this in the regulations. Examples of good outcome based plans and how discussions between professionals and families have achieved those outcomes (as well as innovative approaches and interventions) must feature strongly in the guidance to ensure that professionals are encouraged to think widely about the range of ways in which people can get to where they want to be. The assessment process must not limit the options and opportunities for outcomes to be achieved. The case study on page 41/42 (Lisa) is a good example of this. Such examples can also demonstrate to disabled people and carers what can be possible, and that much more can be done within the context of self-directed support than ‘traditional’ social care interventions. We explore this in more detail in section 4.2. Resource Allocation and Accountability A significant concern surrounds the myriad of resource allocation processes developing which can include Resource Allocation Panels (RAPs). The guidance avoids this issue and worryingly, it does not touch on the fact that decisions can made about personal budgets/packages of support by people who perhaps have not even met the individuals being assessed. In some cases, we are aware of RAP’s meeting and agreeing support packages without any direct input from individuals whose lives are being discussed. Although this is not something which specifically relates to Self Directed Support (as these processes precede the legislation) the guidance provides an opportunity to tackle this and to ensure there is accountability to service users and carers. It also provides an opportunity to tackle the postcode lottery in care and, as the National Carer Organisations report, the emergence of arbitrary decisions to reduce allocations to a disabled person based on an unpaid carer being present. Again, this works against the spirit and intention of the legislation and leave us with existing systems which can work directly to reduce choice and control. Monitoring and Review The guidance is very light on monitoring and review. Whilst this should not be cumbersome or create additional stresses for individuals and families, monitoring and review can be positive, as it means that fluctuating conditions are taken into account; people may change their mind and wish to move between any of the options outlined within the legislation; and people’s abilities and goals may change. From the perspective of organisations (including those within the third sector) involved in providing support, this is vital to ensure that they are truly helping an individual achieve the goals they have identified. It also makes sense to ensure that families providing informal care have their needs and wellbeing taken into account e.g. if an unpaid carers’ health is an issue or he/she no longer wishes to provide the same amount of care. This section needs to be much more detailed and include examples of good practice. Unpaid Carers SCVO supports the concerns and issues raised by the National Carers Organisations (NCO), specifically:- The benefits of accessing a Carers’ Assessment – and the fact that accessing an assessment should not be based solely on an unpaid carer having to prove they are providing regular and substantial care. Also, the NCO group highlight the increasing use of Carer Self Assessments which should not replace a co-produced assessment involving professionals (social work and voluntary sector). Emphasising terminology such as “regular and substantial” implies eligibility and a resource led process and can lead to carers being managed out of the social care system, even where they may need significant support. There is no economic or moral basis for this, especially given the increasing need for unpaid care due to demographic change.[i]
- The importance of access to information and advice as well as other ‘universal’, free services which help an individual to make informed choices about how they access support are as valid for unpaid carers are they are for people with disabilities. Disability, carer and advocacy organisations offer vital free services which empower and help people to make their journey towards accessing self-directed support. They are crucial to achieving the intention and will behind the legislation.
Wider issues for guidance and implementation
Early Intervention There is a need to give much more prominence to early intervention, preventative approaches and support throughout the guidance documents. This should be up front and much more visible throughout the guidance. This point is emphasised strongly by the response from the National Carer Organisations group. Real - and different - choice The essential principles underpinning the Self Directed Support legislation are choice and control. A number of factors can work against this vision and include:- Risk aversion in local authorities e.g. prescriptive lists which determine what people can purchase with direct payments or personal budget – whether or not these are ‘held’ by an individual. CCPS mention in their response the need to avoid practices such as “approved provider lists”.
- The need for better recognition of the benefits of “one off” purchases or investment in equipment which can help an individual achieve specific goals or help reduce pressure on unpaid carers e.g. driving lessons, purchasing IT equipment, reworking a garden or bedroom space (e.g. for a child with autism) or purchasing relatively inexpensive items e.g black out blinds.
- An unwillingness to recognise the wide range of support which can be accessed via self-directed support. Whilst these interventions or activities might sit outside of “traditional” social care interventions but they can, nevertheless, help achieve goals around wellbeing, reducing isolation, supporting independent travel, maintaining an individual’s health and connections to their community. This can include accessing sports activities and clubs (often run on a voluntary basis), social events, dance and other activities, lunch clubs, shopping services and so on.
Read across to other legislation
We would like to emphasise the point made by the Health and Social Care Alliance in its response to this consultation about the connections between the self- directed support legislation, the new Public Bodies (Health and Social Care integration) and Children and Young People’s bills. In relation to plans to bring health and social care services together, there may be occasions where a health board takes the lead for taking forward and delivering services that are ‘covered’ by the SDS legislation. Here, we have the potential of two very different models ‘clashing’ – medical models versus a focus on the wider context in which people live their day to day lives. It will also mean that health staff will require much greater awareness of the variety and options which the legislation seeks to drive. Sadly, the need to involve the sector directly in planning for integrated health and social care services is not recognised in the Public Bodies Bill, moving us backwards from any achievements gained through the Reshaping Care Change Fund processes. The SDS legislation will transform the context in which third sector organisations – both providers and advice organisations – operate so they should be supported through that transition. Self-directed support and welfare reform The current substantial and poverty inducing changes to benefits drive through the intentions behind the SDS legislation. Already, people may have lost amounts of significant income, without even considering the potential loss of mobility components/support in the transfer to PIP. These could undermine existing SDS packages and more generally the independence and resilience of individuals – disabled people and unpaid carers. How will guidance/implementation of the SDS legislation take account of this and how are risks to implementation being analysed? We must also consider whether or not the commitment by the Scottish Government to maintain existing pass-ported benefits under Universal Credit/in the event of losing disability benefits will be enough to mitigate against any identified risks.Independent Living Fund
We must be cognisant of plans by the Westminster Government to wind up the Independent Living Fund, and how this could potentially impact on implementation of the SDS legislation. If the funding attached to ILF is to be devolved to Scotland, like the Scottish Welfare Fund, there must be a thorough analysis of options to administer this. This presents some opportunities linked to the Public Service Reform agenda.Public Service Reform – Theory to Reality
The danger with the SDS legislation and guidance and more widely with integration, the Scottish Welfare Fund and so on is that we tinker at the edges and reinforce existing processes, approaches and models. And yet, we have an opportunity here to consider a range of elements and funding linked to social care more strategically and collectively to drive through radical change. Could we combine any monies devolved through ILF, Community Care Grants (which currently sit within the Scottish Welfare Fund) and any investment in SDS implementation to get more back and to drive some real change in how people access social care? More widely, organisations and local authority/third sector and other professionals – and more importantly, individuals and families – would not have to navigate different application systems for funding which all essentially support quality of life and independent living. Here we have a potential opportunity to bring the Christie principles to life. The language used by the Christie Commission to describe transformed public services could feature more strongly in this guidance – four key elements of better and more effective public services were highlighted and these seem to capture the essence of the SDS legislation. These are:- Services built around people and communities, their needs, aspirations, capacities and skills, and work to build up their autonomy and resilience;
- Organisations working together effectively to achieve outcomes - specifically, by delivering integrated services which help to secure improvements in the quality of life of people and their communities;
- prioritising prevention, and reducing inequality
- Services which are open, transparent and accountable.
- ingrained risk aversion to change and innovation[x] (needed if the SDS legislation is to transform social care)
- that public service reform is not happening at the scale and pace needed to drive the change envisaged by the Christie Commission
- the need for a safe space to take stock of what is in place just now, particularly in times of austerity.
- that the public sector must change its approach to those to whom it supplies services
Conclusion
In emphasising the findings of the Local Government Committee, we must not lose sight of the crucial nature of the services and supports which the SDS legislation and guidance cover. In all of the debate which will follows this consultation, the plea we would make to MSPs, political parties, to local authorities and others with an interest, is not to lose sight of the people whose lives could be transformed – both positively and negatively – in the light of this legislation. We pose some questions below and would ask those scrutinising the regulation to consider it from their own perspective:- How would you want to be treated if you were in the social care system and facing up to the implementation of self-directed support?
- If your life changed overnight and you suddenly needed support to do the things which we normally take for granted – e.g. dressing, toileting, getting out and about, staying in employment – would these regulations help you to achieve your wishes?
- Would you know where to start if you suddenly had a personal budget or were told to ‘choose’ how you wanted to receive social care support?
[i] http://www.scotland.gov.uk/Publications/2010/07/23153304/7, esp 2.30 onwards
[ii] http://www.scotland.gov.uk/Resource/0038/00388624.pdf
[iii] As above
[iv] http://www.scvo.scot/policy/briefings-and-consultation-responses/response-procurement-reform-bill/
[v] http://www.communitycareassynt.org.uk/assyntcentre2.html
[vi] http://www.westhillmensshed.co.uk/index.php/how-we-got-here
[vii] http://www.royalvoluntaryservice.org.uk/our-impact/reports-and-reviews/involving-older-age-the-route-to-twenty-first-century-well-being
[viii] As above
[ix] http://livingitup.org.uk/hidden-talents/
Last modified on 23 January 2020