Author: James McBride
“It shall be the duty of every local authority to promote social welfare by making available advice, guidance and assistance.”
The 1968 statute is the foundations for Scottish social care by conferring powers like assessment of need to local level. The effectiveness and comprehensiveness of legislation is extremely topical considering, for example, ‘Frank’s Law’; recognising the limitations of current personal care legislation. There is wide scope in current legal obligations. However, the depth of provision is variable. The statutory language used for social care is open to broad interpretation and allows a degree of discretion to local authorities. A better understanding of social care legislation would be permitted by centralising the provisions and removing ambiguous language.
Service users, care providers and local authorities must be able to access and interpret social care obligations on a case-by-case basis. To ensure consistency, the Equality Act encourages consultation of those most affected by service changes. Local authorities must eliminate discriminatory conduct by, for example, promoting equal opportunities for individuals in similar circumstances. This general obligation in the Equality Act is positive in maintaining consistent, non-discriminatory legal provision. However, it only requires authorities to have ““due regard” when carrying out…functions”. The beneficial, wide scope of application is contrasted with the detrimental, broad wording. The latter is shown the Brown case having to clarify this provision and what it means for local authorities. This sets out, for example, that those controlling the policy should have regard to relevant matters and this duty is non-delegable.
The 1968 Act requires an assessment of an individual’s “needs” in order to align potential service. Assessment is pivotal to all facets of social care with Helen McGinty, Solicitor, viewing assessment as “the gateway” to “direct payments” or “services by a local authority”. The NHS and Community Care Act states that if the local authority has a duty of care to a specific individual then they must carry out assessments and act upon these. The Act confers the power to act without assessment in cases of “urgency” and assess closely afterwards. The timescale for assessment is measured on reasonableness; “six months” is regarded “probably unreasonable”. The absence of assessment in non-urgent circumstances may be grounds for grievance, as encapsulated in the English ‘JF’ case. Here, moving to cheaper residential care was unlawful in the absence of assessment. The effectiveness of the 1990 Act is undermined due to broad language such as, urgent and non-urgent, the boundary between which is ambiguous.
The notion of an individual exhibiting a “need” has been explored. An argument submitted in the Barry case was that “a person’s needs” are reliant on the nature of their “disability…”. Crucially, this definition was contested. This illustrates the misconceptions regarding this term although it features heavily in legislation. Lord Nicholls states, “[the definition] is “flawed” by assessments of individual’s needs not taking into account the “cost” of the solutions. Lord Nicholls looks for “something more concrete” than what legislation provides and to local level for clarification. The case addressed rights given to individuals in the explicit list of section 2 of the 1970 Act, including the obligation on local authorities to facilitate adaptations for greater “safety, comfort or convenience”. He states, “the interpretation does not emasculate section 2(1)…[It gives] a valuable personal right to see that the authority acts reasonably in assessing their needs…and a right to have their assessed needs met…”. Tim Haddow, Advocate, argues that the specificity of the care in the 1970 Act section 2 is useful and links to the original obligation in the 1968 Act. The 1970 legislation supplements existing provision, its clear terminology translates broad social care principles to tangible objectives and seems to create a sliding scale of the intensity of care aligned with the nature of the disability.
However, as Lord Nicholls’ treatment of “need” shows, the broad nature of the term is of hinderance. The four factors in the identification of valid need in the 2010 Act go some way to rectify this. Old age and natural deterioration alongside forms of physical and mental disability are considered. Thirdly, being reliant on “alcohol or drugs” or finally, “young age”.
The existing roles of individuals, already offering care prior to the external authority being engaged, are considered in assessments. Some 32 years after the creation of the obligation to provide service, a test continues to be formulated to define someone already offering care. The 2010 Act regards this as someone giving a “substantial amount” of care on a “regular basis”. This is someone who does not act under contractual obligation nor receives reimbursement. Critically, broad phraseology, comprising “substantial” and “regular”, undermine the ease of identifying a care provider. For example, a student in full-time education will not qualify for Carers Allowance despite seeming to give “substantial” and “regular” care. Furthermore, “payment” is vague in nature as to whether being provided accommodation in receipt for the caring role qualifies.
The 2010 Act’s definitions also diversify between the nature of “personal care” and “personal support”. Its provisions distinguish between daily activities under personal care contrasted with, for example, “counselling” under personal support. As minimum, individuals over-65 are not required to pay for “personal care”, whether under general nursing care or delivered by a “registered nurse”. The 2010 Act achieves only some success in clarifying broad statutory language here. The ambiguity surrounding the definition and scope of personal care makes the legislation ineffective. It skews the conceptual boundaries of personal care and exactly when this care is warranted. It is clear that in answering personal care issues, local authorities must consider human rights under section 6(1) of the Human Rights Act, and if their interpretation does not reflect this, this may be grounds for challenge.
Media spotlight on ‘Frank’s Law’ extending the scope of personal care brings fresh scrutiny to the legislation. The personal care need is demonstrated in 45,780 individuals aged over-65 being in receipt of personal care at home in 2016-17 with local authorities spending £379 million to facilitate this. An unequivocal legal basis is needed to extend the age range of users and meet the minimum levels of care required at home.
The Scottish Government conducted a feasibility study to weigh need against the financial burden of further legal obligations through ‘Frank’s Law’. The study recognised the impact service has had and the interaction that extending provision could have with social security payments. Section 6 of the study concludes the investigation by recognising the potential equality and inclusivity of new legislation in being regardless of “age and condition” and by overcoming the barrier of cost. By enshrining this provision into law with clear, unequivocal language, the equality and equity of social care will improve.
In the Scottish Government’s executive summary of Free Personal and Nursing Care, average weekly personal care hours for those over-65 had risen from 299,400 to 405,000 within 9 years. High demand is evident in this age category. Speculatively, based on the power to assess, local authorities may attempt to meet their statutory obligation to extend the scope of care, although remain financially competent by limiting its depth by stringent assessment. Therefore, the language of the legislation is important here. Lord Nicholls reflects on the scope of movement when duties or powers are conferred on local authorities. He argues that duties are regardless of finance; “the broader and more general the terms of the duty, the more readily the statute may be construed as affording scope for a local authority to take into account matters such as cost…” For the new legislation to be effective, it must provide a comprehensive, unequivocal duty when it comes to implementation to avoid any deviations by reason of cost.
In 2003, specific mental health legislation was introduced. Here, local authorities have an obligation to provide social care with the key focus of mental wellbeing for the individual. It is specifically stated that the delivery of necessary personal care and personal support are included, in line with the 2010 Act definitions. Again, the broad aspirations of the 2003 Act inhibit its effectiveness in increasing the depth of social care for those with mental health needs.
The opposing school of thought would contend the depth of Scottish social care legislation is shown in the protection of vulnerable individuals who are at risk of harm. The statute differs in approach by placing emphasis on “risk” over the idea of “need” that has characterised legislation thus far. It protects individuals who are “affected by disability, mental disorder, illness or physical or mental infirmity” and identifies these individuals as, “more vulnerable to being harmed than adults who are not so affected”. The statute does not provide care by nature. However, it may influence care provision. The statute delegates power to local authorities to approach the Sheriff for assessment orders and removal orders. The broad language in, for example, the definition of vulnerability, is similar to the Equality Act and of advantage in offering protection to a broader scope of individuals.
When a fuller, tailored package is necessary, local authorities may pursue a self-directed support (SDS) arrangement. In instances of SDS budgets, 34% of clients in 2016-17 had personal care needs incorporated into their support plan’s objectives. This research is also limited in recognising that 31% of its surveyed cross-section had unknown uses for their budget.
The research referenced above, although SDS-specific, highlights data that supports the extension of the scope of, principally, free personal care, to younger users. In 6 of 30 local authorities with recorded data, there were more under-65 users of SDS in comparison with over-65s. In North Lanarkshire, the users of SDS who were under-65 in 2016-17 reached nearly 90% and was similarly high in Glasgow City. Comparatively, their SDS usage overall was lower than the Scottish median, with North Lanarkshire falling second bottom of the usage results. Without reading these statistics too closely, wider principles can be denoted. There is evidence of need in under-65s that is perhaps underestimated. There seems to be inequality of access for under-65s to SDS which substantiates the case for financing free personal care for all in unequivocal legislation. Also, the inconsistency in results between the local authorities indicates a lack of understanding in those delivering the options of SDS. This results in; inconsistent implementation of SDS budgets, lack of scope in the age brackets who take advantage of SDS and differing views on the right party to administer the budget. Arguably, this misunderstanding and ineffectiveness originates from unclear statutory language.
The aim of SDS is to confer autonomy on individuals to decide a personalised care programme that reflects the budget allocated per annum. The 2013 Act sets out broadly that the budget’s delivery should promote the recipient’s involvement, the assistance of the authority in promoting that involvement and collaboration between all sides. The individual’s dignity is to be promoted alongside involvement in community life. The legislation refers to the 1968 Act power to assess and promotes a collaborative eligibility assessment between individual and authority after the individual makes first contact. The Act sets out that when formulating the ‘Person’s Pathway’, there are four options. These include the individual tailoring their own support with the local authority providing financial assistance and practical implementation. The local authority may look to transfer the budget to a care provider who can manage the budget with the client. The budget looks to fulfil health objectives, potentially comprising personal care and personal support, alongside agreed social objectives aligned to the supported individual’s wants and needs. Practically, this could include, “respite, day care, care at home, personal assistance or domestic care”. On paper, a self-directed support scheme broadens the accessibility of care options for individuals and increases the depth of provision by being malleable to specific cases. The collaborative nature of self-directed support provisions also creates room for “assisted decision-making” which protects the human rights of “adults with decision-making impairments” as recognised by the United Nations Convention of the Rights of People with Disabilities.
In counterargument, there are omissions in the legislation that mitigate this scheme’s effectiveness. A precise timescale for the ‘Person’s Pathway’ is omitted. For example, if a care provider were to have to retract their commitment or if there was issues formulating the support plan, an individual’s budget may be depleted on review. There is also ambiguity at an implementation level regarding the scope of the budget’s use, for example, in “adaptation”, which is seemingly left to local authorities to determine. It is assumed that discretion in the legislation would allow for a degree of flexibility to ensure reasonableness in timescale and use.
Section 6 of the 2013 Act is an example of unclear legislative language adding to misunderstanding and ineffectiveness. This provision confers a duty on local authorities to “identify a person” who can provide assistance in relation to SDS to those with a mental disorder. However, exactly who this “person” could be is unclear. The Act is ambiguous as to whether an individual could be supported by a third party to make valid decisions. If these points were clarified, SDS has the capacity to develop an “assisted decision-making model” that would promote the involvement and independence of the supported individual. In relation to section 6, this misunderstanding is embodied in potential differences of “practice” between local authorities.
Organisations such as Alzheimer’s Scotland and MECOPP have attempted to publish neutral, simplified guidance to understand this social care option and to eliminate misconceptions. Alzheimer’s Scotland reflects that the legislation is “still new” but clear that the intended recipient of SDS is simply “anyone who is eligible for support”. However, the legal obligation does exist upon the local authority to present and inform individuals of the four options contained under SDS, and present the individual with a selection of care providers.
Misunderstanding over the SDS options is evident in the ‘frequently asked question’ to Alzheimer’s Scotland which incorrectly presumes individuals with dementia do not qualify for SDS. MECOPP follows the ‘3 Rs’ project which attempts to make individuals aware of their “rights and entitlements” under the 2013 Act. The apparent misunderstandings do not take away that SDS does have the potential to provide wide choice and flexibility. Until cross-party understanding is achieved, the ability to critically assess the scope or depth of SDS and its effectiveness, is mitigated.
The NHS and Community Care Act confers power on local authorities to establish a complaints procedure. Having potentially followed this procedure and the Scottish Public Services Ombudsman, legal action against local authorities may be raised. Deference of the court to local authority level is high. The general principle for deference in terms of expertise is set out by Lord Bingham as he states the court must afford “appropriate weight to the judgement of a person with responsibility for a given subject matter and access to…knowledge and advice”. One case involved contesting a decision to move an individual from 24-hour care at home to a residential facility which was viewed as having the capacity to accommodate the individual’s needs including their risk of falling. Lord Boyd showed restrained in assessing “so-called anecdotal evidence” in avoiding declaring one party as “correct”. This restraint from straying into factual assessment of social care evidences the limited scope and success of legal actions.
Lord Dyson reflects on this restraint and the limitations on individuals attempting to achieve success further than formal complaint at local level. He states, “It should not be overlooked that [assessments and care plan reviews] are usually drafted by social workers. They are not drafted by lawyers, nor should they be”. Lord Dyson demonstrates the expertise of workers at local level and thus the scope for challenge provided in legislation is limited.
Finally, social care legislation presents a framework of inquiry in instances where a vulnerable adult is identified as being subject to harm. Local authorities have a duty to recognise when adults are at risk and investigate with powers to visit, interview and medically examine. If social workers were not to accurately address an individual’s needs through their social care recommendations and cause harm, there is potential liability through positive act negligence or omission. The Act specifically defines an individual “at risk of harm” as a result of their own conduct or another “person’s conduct”. The use of “person” indicates that the scope relates to individuals, like social workers, and not intended for a local authority in general, although vicarious liability may bridge this gap. Critically, the use of broad language makes the legislation more effective in creating a wide coverage of protected individuals.
In conclusion, social care legislation continues to be topical. Imminent expansion of personal care is testament to this. Often, political headlines take the spotlight in these situations but, as in most policy circumstances, the effect is only as positive as the clarity of the underpinning law. Moreover, the Auditor General comments that the Scottish NHS “continues to decline” and highlights “growing” demand. A far-reaching social care system encouraging localised care is increasingly necessary and so legislation underpinning this care should be assessed. Indeed, “wider discussion about the current system” would promote a national understanding of the existent social care options with the recognition that social care legislation has developed “significantly” from the Adults with Incapacity (Scotland) Act 2000. Then et al also recommends looking to “international models” to ensure this legislation remains effective. The scope of social care legislation for those at home should improve in light of ‘Frank’s Law’ and through a growing understanding of SDS. This is provided that legislative language is not ambiguous and obligations are centralised for greater accessibility. Moreover, high discretion to local authorities’ assessments results in the scope and depth of care varying dependent on authority and the success and scope for raising action being limited.
 Social Work (Scotland) Act 1968, s12(1).
 ibid., s12A.
 Equality Act 2010, s149(1)(a-c).
 Arrowsmith,S., 2014, ‘The Law Of Public Utilities and Procurement: Regulation in the EU and the UK’, Ch.20, s4,20-178.
 R (Brown) v Secretary of State for Work and Pensions, 2008, EWHC 3158 (Admin).
 1968 Act, s12A(1)(a).
 McGinty,H., ‘Aliment for adults’, Fam.L.B.2018,151,3.
 1990 Act s55/1968 Act s.12A(1)(a),(b).
 1990 Act s55/1968 Act s12A(5),(6).
 McGinty,H., Fam.L.B.2018,151,3.
 R (JF) v London Borough of Merton (2017) EWHC,1519 (Admin).
 R v Gloucestershire County Council and Another, ex p Barry (1997) 2 WLR 459,604.
 ibid., 604/605.
 Chronically Sick and Disabled Persons Act 1970, s2(1)(e),(f).
 R v Gloucestershire County Council and Another, ex p Barry (1997) 2 WLR 459,605/606.
 Haddow,T., ‘Challenging Social Care Decisions in Scotland: A Legal Guide’, online.
 Public Services Reform (Scotland) Act 2010, Schedule 12,paragraph 20.
 1968 Act, s12A(1)(i),(ia).
 Public Services Reform (Scotland) Act 2010, Schedule 12,paragraph 20.
 Community Care and Health (Scotland) Act 2002, s1(1)(d).
 Care Act 2014, s73(1)(c),(2),(3).
 Scottish Government, ‘Free Personal Care and Nursing Care in Scotland 2016-17: figures’, online.
 Scottish Government, ‘Extending free personal care to under 65s: feasibility study’, online.
 ibid., s6.
 Scottish Government, ‘Free Personal Care and Nursing Care in Scotland 2016-17: figures’, online.
 R (G) v Barnet LBC (2004) 2 AC 208,219.
 Mental Health (Care and Treatment) (Scotland) Act 2003, s25(2)(a),(b).
 ibid., s3(a)(ii).
 Adult Support and Protection (Scotland) Act 2007, s3(2)(a),(b).
 ibid., s3(1)(c).
 ibid., s11/s14.
 Scottish Government, ‘Self-Directed Support in Scotland: 2016 to 2017’, page 1, online.
 ibid., pages 5,8.
 Social Care (Self-Directed Support) (Scotland) Act 2013, s1(2)-(4).
 ibid., s2(a),(b).
 ibid., s4(1).
 Paisley, R.R.M., 1995, ‘Greens Practice Styles’, Greens practice styles,[online], Division I(I00) Miscellaneous, s106(8).
 Then,S., Patrick,H., Smith,N., ‘Reinforcing guardianship regimes through assisted decision-making-a Scottish perspective’, Jur.Rev.2014,4,277.
 ibid., 278.
 Alzheimer’s Scotland, online.
 2013 Act, s19(1),(2)(a).
 Alzheimer’s Scotland, online.
 MECOPP, online.
 Then,S., Patrick,H., Smith,N., Jur.Rev.2014,4,263.
 1990 Act, s55/1968 Act, s5B(1).
 Huang v Secretary of State for the Home Department (2007) 2 AC 167,185.
 ibid., 26.
 R (Macdonald) v Kensington and Chelsea Royal London Borough Council (2011) UKSC 33,53.
 2007 Act, s1.
 ibid., ss4,7,8,9.
 2007 Act, s3(2)(a),(b).
 Gardner,C., BBC, online.
 Then,S., Patrick,H., Smith,N., Jur.Rev.2014,4,279.