Issue 7: Nov 2013

SCOTLAND: CARING FOR THE CARERS

By Gemma McKinlay, Solicitor - Public Law Team, Brodies LLP

Carers are seen by many as the keystone of Scotland's health and social care system. Currently around 657,000 unpaid adult carers and up to 100,000 young carers look after relatives, friends and neighbours in Scotland, saving the Scottish health and social care system, it is estimated, more than £10 billion every year. Surprisingly, however, despite the tremendously important work they do, until relatively recently carers have had few legal rights according them recognition and support.

The first major advancement of carers' rights was the creation, in 2002 of a "carers assessment". Introduced by an amendment to the Social Work (Scotland) Act 1968, this gave carers the right to ask their local council to formally assess their ability to provide care and their support needs. The right extends to unpaid carers providing care on a substantial and regular basis for a person over the age of 18. The right applies to adult and child carers. There is an equivalent provision for carers of those under 18 in the Children (Scotland) Act 1995.

657,000 unpaid adult carers and up to 100,000 young carers look after relatives, friends and neighbours in Scotland, saving the Scottish health and social care system, it is estimated, more than £10 billion every year.

More recently, the Scottish Government published a national strategy for carers with a list of action points for the Government, local authorities and health boards. Caring Together: The Carers Strategy for Scotland 2010-2015 makes a number of commitments to improve support for carers, including:
•    developing a Carers Rights Charter to consolidate existing legal rights and set out key principles for carer support;
•    providing training for carers to help them fulfil their role and offering short breaks or respite; and
•    promoting and encouraging carer-friendly employment practices.

Some of these commitments are being brought forward under the Social Care (Self-directed Support) (Scotland) Act 2013 (SDS Act) which strengthened the legal framework of support for carers. Prior to this, councils were under a duty to carry out carer assessments; however some social workers felt the absence of a specific legal power prevented the release of resources to meet carers' needs.

The SDS Act makes it clear that councils not only have a duty to carry out carer assessments; they have power to provide support to meet carers' needs. Councils must consider the outcome of a carer’s assessment and decide if the carer has needs as regards their ability to care. If the carer has needs, the council must consider whether they can be met in full or in part so as to help the carer in their unpaid role. Where support would meet a carer's needs, the council has a discretionary power to provide that support. This is distinct from any need which the carer may have independently of the cared-for person for community care services under the 1968 Act, which would be assessed separately. There are proposals to make most forms of support to carers free of charge in the draft Carers (Waiving of Charges for Support) (Scotland) Regulations, which was recently the subject of consultation.

However, what still seems to be lacking is a set of enforceable legal rights for carers.

However, what still seems to be lacking is a set of enforceable legal rights for carers. To date, no carers have brought a legal challenge against a council complaining that they have not been properly assessed under the 1968 Act, although that may be due in part to the uncertainty about what the duty meant. The new power in the SDS Act makes the scope of the duty clearer, but it is only discretionary, so it would be extremely difficult for a carer to take action against their local authority for not providing support, even where the authority had assessed the carer as needing support. Since carers have no specific rights, their only legal remedy would be to challenge the council's decision as being unreasonable or irrational by means of judicial review. A carer might have a good case if they could show that the council had a policy of never providing support. In most cases, however, it is unlikely that a challenge would succeed. A court may also have a degree of sympathy for a local authority trying to manage its (increasingly) scant resources and having to make tough choices to allocate funds to priority areas.

There are some legal provisions that carers can enforce by way of right. For example, carers are protected from direct discrimination and harassment under the "associated" discrimination provisions in the Equality Act 2010. This means that they cannot be treated less favourably because of their association with the cared-for person, where that person has a characteristic that is protected from discrimination under the Equality Act, for instance if they are disabled or elderly. It would therefore be unlawful to refuse to offer a job to someone because of their caring responsibilities.

First Minister Alex Salmond announced on 1 October that a widespread consultation on new legislation which will "promote, defend and extend" the rights of carers and young carers will begin before the end of the year.

However, there are no rights in the Equality Act that are directly enforceable by carers simply by virtue of being a carer. In the consultation responses to the Equality Bill, there was strong support for specific protection for carers by making 'carer status' an additional ground under discrimination law. The UK Government's (controversial) suggestion at the time that the role of carer was not as suited to specific protection, because it is a matter of choice, left many disappointed by the missed opportunity to do more to protect carers and recognise the important role they play.

It will be interesting to see how the policy landscape of support for Scottish carers changes over the coming years. First Minister Alex Salmond announced on 1 October that a widespread consultation on new legislation which will "promote, defend and extend" the rights of carers and young carers will begin before the end of the year. The detail will be shaped in the months ahead, but it is likely to focus on proposals that will ensure a consistent level of support for carers across Scotland; improve the health and well-being of carers; and enabling them to have a fulfilling life alongside caring. It remains to be seen whether any new measures will include directly enforceable entitlements for carers and, if they do not, whether Scottish carers will start looking for other ways of protecting their interests through legal challenge.

 

By Gemma McKinlay, Solicitor - Public Law Team, Brodies LLP

Issue 7: Nov 2013

Issue 7: Nov 2013

HEALTH, WELL BEING AND AGEING: SCOTLAND 2020

Re-energising the move towards integrated care

Scotland's move to integrated care can learn from elsewhere by focussing on two key differentiators between successful partnerships and those paying lip service to integrated working: Shared outcomes and common language is one, the other is demonstrating mutual investments and mutual benefits.

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