ANNEX A: LEGISLATIVE CONTEXT
The legislation that enables direct payments is contained within the:
- The Social Work (Scotland) Act 1968
- The Community Care (Direct Payments) Act 1996
- Regulation of Care (Scotland) Act 2001.
- Community Care and Heath (Scotland) Act 2002.
- The Community Care (Direct Payments) (Scotland) Regulations 2003 ( SSI 2003 No. 243).
- The Community Care (Direct Payments) (Scotland) Amendment Regulations 2005 ( SSI 2005 No. 114).
- The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Subordinate Legislation) Order 2005 ( SSI 2005 No. 445).
The Community Care (Direct Payments) Act 1996 ('the 1996 Act') inserts sections 12B and 12C into the Social Work (Scotland) Act 1968 ('the 1968 Act'). These sections are further amended by section 70 of the Regulation of Care (Scotland) Act 2001 ('the 2001 Act') and section 7 of the Community Care and Health (Scotland) Act 2002 ('the 2002 Act'). They now place a duty on local authorities, to offer direct payments to people of a description specified in regulations made under section 12B, enabling them to arrange and purchase the community care or children's services they have been assessed as needing.
1.2 The Social Work (Scotland) Act 1968
Sections 12B and 12C of the 1968 Act place a duty on local authorities to make direct payments available to certain adults and children who wish to receive them. This includes disabled people.
Direct payments are an alternative to local authority arranged community care and children's services and therefore need only be offered at the point where the local authority would normally have agreed to provide the services. They must not put people who choose to receive local authority services at a disadvantage.
1.3 What service direct payments can be used for
Direct payments may only be offered to eligible adults who under section 12A of the 1968 Act, have been assessed as needing community care services. They can be used to purchase all community care services and support except long term residential accommodation. For the purposes of the direct payments legislation 'community care' services are defined by section 5A of the 1968 Act as '...services, which a local authority are under a duty or have a power to provide, or to secure the provision of, under Part II of the Act or section 25 (provision of care and support services for people who have or have had a mental disorder), 26 (provision of services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health Care and Treatment (Scotland) Act 2003. This definition includes housing support services and equipment and temporary adaptations. Since December 2001 direct payments have also been available for services for children in need provided under section 22(1) of the Children (Scotland) Act 1995 ('the 1995 Act'). Part 2 of the 2002 Act allows delivery of health services and some continuing health needs by direct payments if the local authority and NHS Board has arrangements to allow this to happen. The choice of support people can use to meet their assessed needs is covered at sections 4 and 5.
1.4 Who can receive direct payments?
Those eligible to receive direct payments are certain persons, including older people aged 65 and over who are assessed as in need of services, who are capable of managing direct payments, with or without assistance. However, before receiving direct payments the person requiring the service must give his or her consent. Where a person is over 18 and clearly unable to give consent, or is under the age of 18, Regulation 3 of The Community Care (Direct Payments) (Scotland) Regulations 2003 ('the 2003 Regulations') specifies certain categories of people who are able to give consent on behalf of the service user, namely those with parental responsibility, attorneys and guardians who have powers to manage direct payments on the user's behalf.
The 2003 Regulations define a 'person in need' by referring to the definition in Section 94(1) (b) of the 1968 Act. This might include people (adults or children) with any kind of disability (see below). The following groups of people are eligible to receive direct payments:
- Disabled adults to purchase community care services;
- Disabled people aged 16 and 17 to purchase children's services;
- Disabled people with parental responsibility to purchase the children's services their children have been assessed as needing;
- Parents and people with parental responsibility for a disabled child to purchase the services the disabled child has been assessed as needing;
- Children in need;
- Disabled adults and 16 and 17 year olds to purchase housing support services;
- Older people aged 65 years and over who are assessed as needing community care services due to infirmity or age; and
- Attorneys and guardians, with the relevant powers can receive direct payments on behalf of people who are unable to give consent to arranging their own services.
Those community care service users aged 65 or over who are accessing Free Personal and Nursing Care can arrange for the personal care element of the package to be made as a direct payment. (More information is available in section 14).
1.5 Who cannot receive direct payments?
Not everyone who is eligible for community care or children's services will be eligible for direct payments. The 2003 Regulations, (made under Section 12B (1) (b) of the 1968 Act) specify that direct payments may not be offered to certain people who are restricted by certain mental health or criminal justice legislation. People in these groups are required to receive specific community care services. Offering them direct payments in lieu of those services would not give a sufficient guarantee that the person would receive the services required. Further details of restrictions are given in Regulation 45(13) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Subordinate Legislation) Order 2005 ( SSI 2005 no. 445) which replace regulation 2 of the 2003 Regulations.
The categories are:-
- Persons subject to a compulsory treatment order under the Mental Health (Care and Treatment) (Scotland) Act 2003 where a certificate has been granted suspending the measure authorising detention; or
- Persons subject to a compulsion order under the Criminal Procedure (Scotland) Act 1995 where a certificate has been granted suspending the measure authorising detention;
- Persons subject to an emergency detention certificate granted under the Mental Health (Care and Treatment) (Scotland) Act 2003 where a certificate has been granted suspending the measure authorising detention; or
- Persons subject to a short term detention certificate granted under the Mental Health (Care and Treatment) (Scotland) Act 2003 where a certificate has been granted suspending the measure authorising detention;
- Persons subject to a compulsion order under the Criminal Procedure (Scotland) Act 1995 and a restriction order under the same Act who have been conditionally discharged.
1.6 The Community Care and Health (Scotland) Act 2002
Section 7 of the Community Care and Health (Scotland) Act 2002 introduced a number of provisions, which amend section 12B of the 1968 Act. These provisions have helped make direct payments more widely available and increased take up amongst disabled people and older people who require community care and children's services.
In addition to being able to recruit staff and purchase support from private agencies or voluntary sector providers, the 2002 Act made it possible for direct payments to be used to purchase services from any local authority. Where direct payments are made on a 'gross' basis local authorities have been given a legal mechanism for recovering any amount an individual was assessed as being able to contribute.
1.7 The Community Care (Direct Payments) (Scotland) Regulations 2003
From 1 June 2003 local authorities have been under a statutory duty, in terms of The Community Care (Direct Payments) (Scotland) Regulations 2003 ('the 2003 Regulations'), to offer direct payments to all who are potentially eligible, as defined by these Regulations.
1.8 The Community Care (Direct Payments) (Scotland) Amendment Regulations 2005
From 1 April 2005, under these Regulations the duty to offer direct payments was extended to all persons aged 65 or over assessed as needing community care services because of infirmity or old age (see regulation 2). SSI 2005/114 can be accessed at 37.
1.9 The Mental Health (Care and Treatment) (Scotland) Act 2003 (Modification of Subordinate Legislation) Order 2005
In terms of this Order, from 5 October 2005 references in the 2003 Regulations to the Mental Health Act 1984 are replaced by references to the Mental Health (Care and Treatment) (Scotland) Act (2003). The exclusions listed under this Order are listed in paragraph 1.5(Who cannot receive direct payments).
1.10 Adult Support and Protection (Scotland) Bill
This Bill, which is currently being considered by the Scottish Parliament, includes an amendment to direct payment legislation. The draft Bill empowers local authorities to offer increased flexibility in tailoring individualised packages, including allowing, in exceptional circumstances, the employment of certain categories of close relatives. The current timetable is that the Bill will be passed as law in early 2007, and the Act and associated regulations enacted shortly afterwards. Updated guidance will be issued at this time. Meanwhile, the 2003 Regulations specify the persons from whom services may not be obtained by means of a direct payment who are essentially close relatives (see section 5). An update to this guidance will be issued when this Bill has been passed and an implementation schedule for the direct payment amendment has been set.
1.11 Health Committee Care Inquiry August 2005 to May 2006
The Health Committee held an inquiry into the success of direct payments delivery since enactment of the Community Care and Health (Scotland) Act 2002. The Committee strongly supported what direct payments are able to achieve in terms of increasing the autonomy of those who receive them, and enabling care packages to be tailored more closely to people's needs. The Report of 13 June 2006 emphasised the benefits of: increasing take-up across Scotland so that more people can benefit from direct payments; the importance of local support services; and the necessary commitment that needs to be made at senior level within local authorities to ensure that direct payments are properly integrated into the range of care solutions available locally. Annex B provides a summary of current direct payments research.