Annex 4: Existing Legislative Context
Note that self-directed support is termed direct payments in statute. The definition is historical and focused on a system of delivery rather than the flexible independence outcomes that individuals can achieve when they choose and control support to meet their assessed needs.
The legislation that enables direct payments is contained within:
The Community Care (Direct Payments) Act 1996 ('the 1996 Act') inserted sections 12B and 12C into the Social Work (Scotland) Act 1968 ('the 1968 Act'). These sections were further amended by section 70 of the Regulation of Care (Scotland) Act 2001 ('the 2001 Act') and section 7 of the Community Care and Health (Scotland) Act 2002 ('the 2002 Act'). They now place a duty on local authorities, to offer direct payments to people other than those not eligible as specified in regulations made under section 12B, enabling them to arrange and purchase the community care or children's services they have been assessed as needing.
2. The Social Work (Scotland) Act 1968
Sections 12B and 12C of the 1968 Act place a duty on local authorities to make direct payments available to certain adults and children who wish to receive them. This includes disabled people.
Direct payments are an alternative to local authority arranged community care and children's services and therefore need only be offered at the point where the local authority would normally have agreed to provide the services. They must not put people who choose to receive local authority services at a disadvantage.
3. Which services direct payments can be used for
Direct payments may only be offered to eligible adults who under section 12A of the 1968 Act, have been assessed as needing community care services. They can be used to purchase all community care services and support except long term residential accommodation. For the purposes of the direct payments legislation 'community care' services are defined by section 5A of the 1968 Act as '...services, which a local authority are under a duty or have a power to provide, or to secure the provision of, under Part II of the Act or section 25 (provision of care and support services for persons who have or have had a mental disorder), 26 (provision of services designed to promote well-being and social development of such persons) or 27 (assistance with travel in connection with such services) of the Mental Health Care and Treatment (Scotland) Act 2003. This definition includes housing support services and equipment and temporary adaptations. Since December 2001 direct payments have also been available for services for children in need provided under section 22(1) of the Children (Scotland) Act 1995 ('the 1995 Act') 69. Part 2 of the 2002 Act allows delivery of health services and some continuing health needs by direct payments if the local authority and NHS Board have arrangements to allow this to happen. The choice of support people can use to meet their assessed needs is covered at sections 4 and 5.
Further information on who is eligible to receive Direct Payments under existing legislation can be found in the national guidance on self-directed support.