Cared-for people, and their carers and advisers, will have to come to terms with the challenges of personal choice under pending Scottish Government legislative plans

A significant shake-up in social care management is imminent, in the form of the Self-Directed Support (Scotland) Bill, included in the Scottish Government’s 2011-12 legislative programme.

The aim of self-directed support is to empower people to direct their care – to have informed choice and to control how their support is provided. This can be achieved by means of taking a direct payment, when a local authority makes a payment direct to the individual in place of services that otherwise would have been arranged by the authority. Alternatively, people can choose to direct the available resources; this is sometimes called an “individual budget” or “individual service fund”. They can take and manage a direct payment as part of this, but they do not have to.

Key to the changes will be the “personalisation” of social care services through independence. While few would dispute the values and principles which self-directed support reinforces, the introduction of the legislative changes, expected this year, will undoubtedly raise challenges among care providers and, of course, service users.

The Scottish Government’s 10-Year Strategy on Social Care, published in 2010, outlined its vision for social care, with support based around the citizen, not the service. It published the draft Self-Directed Support (Scotland) Bill for consultation last year.

As drafted, the bill would affect all adults assessed as needing care and support under s 12 of the Social Work (Scotland) Act 1968, children who receive support under s 22 of the Children (Scotland) Act 1995, and the relevant professionals and statutory authorities, namely social workers and local authorities.

An analysis of responses to the draft bill was produced by the Scottish Government in June 2011. In the main, the responses supported the Government’s view that the focus of the bill was to ensure that those receiving care are put at the heart of the decision-making process, but in addition, various concerns and potential difficulties came to light. The Government’s detailed response was published in October 2011.

Capacity issues

Some key issues raised during consultation were in respect of consent and capacity of those who need help to direct their support. The consultation identified concerns as to whether it would be appropriate to empower local authorities to appoint a “suitable person” as a proxy to assist service users in directing their support. Many felt the default assumption to require guardianship to direct payments was too high. Others had concerns regarding creating a new appointment process within local authorities and potentially diverting people, in a possibly inappropriate way, from established court-based procedures.

There was a clearly identified need to ensure that the person receiving care is fully protected given their potential vulnerability.

The Government’s response agreed that this particular aspect of the consultation was both a complex and a sensitive issue. It indicated that it was not convinced that it was necessary to provide formal appointment powers for councils, and that close family and friends or circles of support should be empowered to assist service users, which the bill should underpin. It recommended that such circles of support should be fully involved in interpreting and communicating the individual’s preferences before formal interventions are considered.


Positively, the proposals are intended to provide service users and carers with greater choice, flexibility and control regarding their care plan, which can be tailored to their needs, going far beyond simply providing direct payments for care. The bill contains a power whereby, if the local authority decides to provide this support, it would be required to empower the carer to direct the support as it wishes. This is similar to a power which has been available to councils in England & Wales for a number of years.

Working with a care manager, or social worker, a plan will be drafted, agreed and approved and the finance provided. It is anticipated that the entire process will take about eight weeks to complete.

Once a care package has been adopted, it is intended that social work services will organise a review in six to 12 weeks, and thereafter on an annual basis.

Much of the response to this part of the bill indicated that carers were keen to see the power to direct support expressed as a duty on local authorities. Many were also keen to give full powers to disabled people to employ family carers or other family members as personal assistants. This would require amendment to current direct payment regulations. The Government has indicated that it intends to retain the power to local authorities to provide support to a carer following a carer’s assessment, to underpin a variety of flexible targeted interventions.

It also indicated that where the employment of a relative is appropriate, the local authority should support the family to put necessary arrangements in place. In the lead-up to the bill being introduced, it will consider a range of circumstances, both appropriate and inappropriate, with a view to introducing a fresh set of regulations in the future.

For those working in social care management, the changes are intended to provide a fairer and more transparent system and a more efficient use of public money. It has been noted by commentators:

“Voluntary organisations need to ensure there is sufficient capacity within their workforces to deliver on the aspirations of personalisation. This may involve significant changes of their HR policies and practices and the type of employment relationships they develop with employees” (Social Care Institute for Excellence (2009), At a Glance 13: Personalisation Briefing: Implications for Voluntary Sector Service Providers

Coping with change

Without a doubt, the provision of financial support in this way will be a fundamental change for many. Instead of a local authority providing social care services, it must now offer the option of providing a direct payment to the service user who can then purchase the services independently from whomever they choose, not just the local authority.

Service users will have the choice to decide who supports them, when and how. They will be required to complete a self-evaluation questionnaire with a social worker, which will outline support needs. This will result in an identified annual budget for the year. For existing service users, this may be less or more than their current budget, and will be evaluated on an allocated points system on a sliding scale from low needs to very high support needs. The total number of points will determine the allocated budget. Currently, budgets are determined by the number of hours of support required.

For some, the benefits of the new system will be considerable and will improve quality of life for them and their families. There is, however, a real risk of many service users being significantly disadvantaged by the new regulations and potentially this will be high support needs cases where they currently receive a particularly high annual budget. It is easy to see why many service users have real concerns about the proposed changes.

Service users will inevitably face many challenges. For many, the thought of considering and agreeing a plan, let alone managing the finance, will be a daunting prospect.

Service users will need to choose who will provide the care and in many circumstances will decide to directly employ a care assistant. This will be an entirely new experience for the majority of people. However, the processes to be introduced under the bill should provide access to a greater range of support and services than perhaps previously experienced, achieving the aim of personalisation and resulting in an enhanced quality of life.

Advice opening

The implications for families supporting an incapax adult are extensive: direct input into making welfare decisions will become more significant in assessment of needs, together with choice and provision of services. There is likely to be a need for advice surrounding the legal implications for all those involved.

Assistance will be available from local authorities and various independent websites intended to help families and individuals choose and arrange their care. Many provide guidance on how to put together and purchase care packages, and how to find a suitable care provider and employ a personal assistant or carer. Legal advice on the new procedures and related issues may be required by individual service users and their families, and also by those working in social care management.

Feedback on pilot schemes already running, and the Government’s response to the consultation on the Scottish Government website (, provide valuable guidance on the proposals and the anticipated provisions of the bill.



The Author
Gillian Brown is Head of Private Client at Morisons, Glasgow and Edinburgh
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