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1. The Carers (Recognition and Services) Act 1995 which came into force on 1 April 1996 applies to adults and young people aged 16 and over who provide or intend to provide a substantial amount of care on a regular basis for people in receipt of or who require community care services themselves. Community care services are those defined in Section 5A of the Social Work (Scotland) Act 1968, inserted by section 52 of the National Health Service and Community Care Act 1990.
2. The terms substantial and regular were not interpreted by Parliament at the time of the Act's introduction. Scottish Office guidance to statutory agencies on implementing the Act (SWSG 11/96 issued on 29 March 1996) stated that these terms should be interpreted in the everyday sense and gives some suggested factors which should be taken into account.
3. This means that not all carers may be eligible for assessment under the Act and it is up to local authorities to make that judgement.
RIGHT TO AN ASSESSMENT
4. The 1995 Act entitles carers to an assessment of their support needs on request but only as part of an overall assessment of the needs of the cared-for person, eg when the local authority is carrying out an initial assessment, or re-assessment, of the needs of the cared-for person. If a cared-for person refuses to have their needs assessed their carer is not entitled to an assessment of their needs under the 1995 Act. Re-assessment of the cared-for person's needs may arise because of changes in the cared-for person's or carer's circumstances. The Act requires the result of the carer's assessment to be taken into account when making decisions about the services to be provided to the user. It does not give local authorities powers to provide support directly to carers, although carers obviously benefit from a range of services that are provided to the people they care for.
PARENT CARERS
5. Unlike in England and Wales, parent carers are not covered in Scotland by the Carers (Recognition & Services) Act 1995. Parents who care for their own disabled child under the age of 18 and their child may receive holistic family services, including the right for the parents to have an assessment of their needs as carers, under the Children (Scotland) Act 1995 and the Disabled Persons (Services, Consultation and Representation) Act 1986.
6. Local authority social work departments have discretionary powers under Section 87(1A) of the Social Work (Scotland) Act 1968 to make a 'reasonable charge' for services provided to disabled children and their families, except the following, which they are not empowered to charge for: advice, guidance and counselling services.
WHAT CAN AUTHORITIES CURRENTLY DO TO SUPPORT CARERS?
7. The general powers in Section 12(1) of the Social Work (Scotland) Act 1968 can be used by authorities to provide support to carers' support groups and groups providing information to carers.
8. Section 12 of the 1968 Act empowers local authorities to make available any advice, guidance and assistance which it judges appropriate to promote social welfare, including assistance in the form of cash where this is the most cost-effective approach. And section 10 of the 1968 Act permits local authorities to give funds to voluntary organisations whose sole or main purpose is to promote social welfare.
9. Local authorities may also be able to help carers when the cared-for person refuses an assessment by using Section 12A(4) of the Social Work (Scotland) Act 1968. This allows authorities in extreme circumstances to make decisions about services required for the cared-for person without the person concerned having requested them to do so.
10. Carers may have community care needs of their own by reason of age, physical or mental well-being or disability. In that case they are entitled to an assessment of their care needs under Section 12A of the Social Work (Scotland) Act 1968 and can receive services directly from the local authority.
11. Local authorities and health boards have powers under the Local Government (Scotland) Act 1994 and Section 16A of the National Health Service (Scotland) Act 1978 respectively which gives them powers to provide funding and other resources to carers organisations and other bodies to enable them to support and promote the interests of carers.
INTER-AGENCY WORKING
12. Section 12A of the Social Work (Scotland) Act 1968 requires social work departments to bring housing and health care needs to the attention of the appropriate authorities and to invite them to assist in a person's assessment for community care services.
13. Scottish Office guidance on implementing the 1995 Carers Act stresses that social work departments should work closely with local education authorities when assessing the needs of young carers.
CARERS' RIGHT TO COMPLAIN
14. Under section 5B of the Social Work (Scotland) Act 1968 carers may complain in their own right about a local authority's failure to provide an assessment under the terms of the 1995 Carers Act or about the conduct of the assessment procedure. Carers can also complain on behalf of service users about the types and levels of services provided by or on behalf of local authorities including those provided in response to a carers' assessment.
15. Under the National Health Service (Scotland) Act 1978 carers and users also have a right to complain about any services provided by NHSScotland.
DIRECT PAYMENTS
16. Under the Community Care (Direct Payments) Act 1996 which came into force on 1 April 1997 carers are not eligible to receive direct payments in connection with their caring role. This is because carers are not able under the 1995 Carers Act to receive community care services directly from social work departments. Carers may be eligible for direct payments when they receive community care services in their own right.
YOUNG CARERS
17. Under the Carers (Recognition and Services) Act 1995 carers under the age of 16 do not have an entitlement to ask for an assessment under the Act. This is reinforced in the guidance issued by the then Scottish Office to accompany the Act, SWSG Circular 11/96. The guidance states that the Age of Legal Capacity (Scotland) Act 1991 provides a general rule that children under 16 do not have the capacity to enter into a transaction having legal effect. In such cases the parent(s) or guardian would have to act on behalf of the child. This legislative anomaly was not apparent at the time of introducing the Carers (Recognition and Services) Act 1995 which was intended to cover all carers, irrespective of age.
18. The guidance in SWSG 11/96 states however that for carers aged under 16 their needs may be assessed by authorities under general powers in Section 12(1) of the Social Work (Scotland) Act 1968 to promote social welfare, under Section 2 of the Chronically Sick and Disabled Persons' Act 1970 or under the Children (Scotland) Act 1995. In reality this means that young carers aged under 16 can be supported in a variety of ways. The Scottish Executive has, however, acknowledged the need to remove any legislative anomaly through appropriate legislation. Doing so is therefore one of the main commitments in developing proposals for new carers legislation.
EMPLOYMENT RELATIONS
19. Under the Employment Relations Act 1999, carers have the right to take a 'reasonable amount' of time off work to deal with an emergency involving a dependant. This includes taking time off to: deal with an unexpected disruption or breakdown in care arrangements (e.g. when a care worker fails to arrive); make longer-term arrangements for a dependant who is ill or injured; deal with the death of a dependant. 'Dependants' can be a partner, spouse, child, parent or someone who lives in the same household. This includes same sex relationships. The Act also includes rights to parental leave, with a special extension for parents of disabled children.
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