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Carers (Scotland) Act 2016 Update

Carers represent the cornerstone of Scotland’s health and social care system. It is estimated that more than 788,000 people are caring for a relative, friend or neighbour in Scotland, this includes around 44,000 people under the age of 18. Together, they are estimated to provide care worth approximately £10bn every year. Despite the fundamental services provided by carers, they have previously received little recognition or governmental support, often resulting in increased social isolation and greater financial struggles, particularly in circumstances where fulltime employment cannot be balanced alongside caring responsibilities.

To address these matters, the Scottish Parliament passed the Carers (Scotland) Act on 9th March 2016. This key piece of legislation will come into effect on 1st April 2018 and will seek to promote, defend and extend the rights of adult and young carers across Scotland. Most importantly, this legislation will aim to afford carers a balance between their caring responsibilities, education, health and wellbeing.

Difficulties experienced by carers in Scotland are often multidimensional in nature requiring an equally diverse range of socio-economic remedies. To what extent will this legislation address carers’ needs and create realisable and enforceable rights and opportunities. Does this legislation have the necessary teeth to carve out positive and long-term change for carers in Scotland? 

Caring for Carers

The Act seeks to extend and enrich the rights of carers in Scotland. Provisions in the Act are designed to secure enhanced and more coherent support for carers so that they are able to continue to provide care, if they so wish, in better health while at the same time being afforded the opportunity to pursue educational, employment or social aspirations. The most significant implications of the Act are as follows:

  • The definition of ‘carer’ has been revised to reflect the diverse range of circumstances in which people are undertaking caring responsibilities. The meaning of ‘carer’ includes an individual ‘who intends to provide care’ as well as an individual who presently provides care. Further, there will no longer be a requirement for the care provided to be ‘substantial’ and ‘regular,’ therefore expanding the definition of ’carer’ to encompass a greater number of care providers.
  • Each local authority will be required to establish local eligibility criteria, detailing the circumstances in which support will be offered to carers. Carers who meet the eligibility criteria must be provided with support to meet their identified needs and should be offered a choice under four options as to how such support will be rendered, either through direct financial payment, targeting of available support, provision of support personnel for the cared for person or through an assortment of these available options. By allowing carers to self-direct their means of support, it is envisaged that such support will more adequately address their individual needs.
  • Local authorities will be obliged to publish a ‘Short Breaks Services Statement,’ which provide information about short break services available in Scotland for carers and cared for persons. The definition of ‘short breaks’ will be clarified in regulations and guidance as will further details on how these statements will be prepared, published and reviewed.
  • Local authorities will be required to provide support to carers that fulfill the local eligibility criteria; this will include preparing an adult care and support plan (ACSP) or young carer statement (YCS) for anyone identified as a carer. Such support plans will specify personal outcomes, identified needs and the support to be provided to meet these needs.
  • Each local authority must also establish and maintain an information and advice service for carers, providing guidance on matters including education and training, advocacy for carers, bereavement support services, emergency and future care planning, health and wellbeing, mental health counseling and potential means of income maximisation. By ensuring carers are better informed of their rights and entitlements and the services available to them, it is hoped that carers will feel supported and appreciated and in turn better equipped to manage the challenges they face as carers.
  • There are a range of provisions within the Act seeking to enhance the involvement of carers in both developing and planning services locally. Local authorities and NHS boards will be required to involve carers in carers' services, and similarly health boards and local authorities will also be obliged to work together to create local carer strategies. By involving carers at the heart of the decision-making and planning process, it is hoped that these services and facilities will be better adapted and prepared to meet the specific needs of carers in Scotland.
  • Scottish ministers will be obliged to prepare a Carers Rights Charter. This document will outline carers’ rights under the Carers (Scotland) Act 2016 and is likely to also broadly summarise and amalgamate carers’ rights under other legislation to provide a comprehensive overview of the legal position of carers in Scotland. In developing this Charter, the Scottish Government will consult with carers and carers’ organisations.

Policy Objectives and Practical Realisation

The Scottish Government has stated that this Act is ‘founded on a preventative approach.’ This legislation recognises the contribution carers make to the lives of the people they care for and more widely health and social services and the economy. By providing avenues for carers to balance their caring responsibilities it is hoped that carers will be healthier and happier in the care they provide, without which Scotland’s health and social services would be overwhelmed beyond functioning capacity. Further, by providing additional support and information pathways, it is envisaged that the standard of care and quality of life for both carers and cared for persons will improve.

The success and realisation of the Carers Act will greatly depend on its implementation by local authorities. At a time of increased budgetary constraints, local authorities are being asked to do more with less and in this instance have been assigned an extensive range of duties to fulfill. The extent to which local authorities will be financially capable of implementing the provisions of the legislation remains to be seen, this will likely be the greatest obstacle to realising positive change and progress for carers in Scotland. 

Contact Miller Samuel Hill Brown for Legal Advice regarding Social Care and Support

Our family law team can provide legal advice on a broad range of issues concerning social care and support, please complete our online enquiry form or call us on 0141 413 9803.

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