SELF-DIRECTED SUPPORT (SCOTLAND) BILL – EXPERT STEERING GROUP

Meeting #1 – Monday 23 August 2010 – PAPER REF: SG-01-02

Paper 2: Forward Plan for the Steering Group on the Self-directed Support (Scotland) Bill

Summary

  1. This paper contains two items: a) the aim, objectives and current content for the draft SDS bill, and; b) a draft Forward Plan for theSDS Bill Steering Group.

Recommendation

  1. The Group is asked to;
  • discuss the aim, objectives and current content for the draft Bill
  • approve the draft Forward Plan of work covering the next 12 months.
  1. A final plan, comprising any changes agreed by the Group, will be circulated following our discussion on 23rd August.

AIM, OBJECTIVES AND CONTENT FOR THE DRAFT BILL

  1. Final decisions on Bill proposals rest with the Minister for Public Health and Sport. After introduction to Parliament the parliamentary scope for the Bill will be a matter for Parliament to consider. Prior to any Parliamentary process, however, there will be a key role for this Steering Group to debate and to guide the aim, objectives and content for the Bill.

The following aim, objectives and content for the Bill are presented for discussion.

Aim
The aim of the Self-directed Support (Scotland) Bill is to enshrine in Scots law a set of clear and unambiguous rights and responsibilities and reasonable and proportionate duties,in relation toself-directed support. The Bill will provide a modern, empowering legal framework so that Scotland can realise the ambition set out in the joint COSLA/Scottish Government strategy: to achieve a significant increase in the number of people directing their own care and support.
Objectives
The objectives under this aim are:
  • A simple and transparent legal framework on how support is provided - a framework which empowers people and practitioners to work in partnership.
  • Simple, straightforward legal provisions on self-directed support and on the specific mechanisms which encompass SDS, including direct payments
  • Proportionate rights, duties and safeguards relating to people with severely limited or no capacity - provisions which do not frustrate but which empower all people with assessed social care/support needs to have equal opportunities to direct their own support.
  • A single set of legal provisions on self-directed support for both prospective residential care clients andthose who wish to receive support and live in their own homes.
  • Access to both “provided” support and self-directed support for carers.

Porposed Content of the draft Bill
  • Self-directed support framework - Legal provisions on a new “self-directed support framework”. The initial consultation document included a proposal to move to an “opt-out” position for self-directed support.
  • Guiding legal principles - A set of modern and empowering legal principles which will be placed on the face of the draft Bill and will be applied to Part II of the Social Work (Scotland) Act 1968. The principles will help to guide joint decisions by social workers and the people they support on how and when social care and support is provided. If necessary, the principles will be there to inform complaints and judicial reviews.
  • Modern, consolidated provisions on direct payments, placed within wider context of self-directed support - Consolidation and modernisation of the existing legal provisions on direct payments, removing unnecessary or no longer relevant exclusions and providing a clear pathway to direct payments for those who wish to have them.
  • Simple, empowering provisions on consent to self-directed support and direct payments - Amendments to outdated provisions on consent to direct payments self-directed support on another person’s behalf. The amendments will be provided as part of a set of new, empowering legal provisions on consent to self-directed support.
  • New powers to local authorities to support carers and access to self-directed support for carers - New legal powers to local authorities, providing them for the first time with specific powers to provide support to carers where necessary. All support to carers will come under the new SDS framework. This means that where that support is provided, there will be a legal requirement on local authorities to offer carers the opportunity to direct that support themselves (and one of the means of directing that support will be through the carer choosing a direct payment).
  • The consultation document contained proposals to remove the current restrictions on the use of direct payments for residential accommodation. This will be considered in detail before decisions are made on whether to include these proposals in the draft Bill.

Items not planned for the SDS Bill

  1. There are a number of items not included in the above list, but suggested as possible additions to the Bill by people and organisations who responded to the recent consultation. A crucial role for this Steering Group will be to debate and discuss possible additions, advising the Government on what could or should be added to the Bill. Debates will centre on the relevance of the suggestion to the aim and objectives to the Bill and its relative costs, benefits and impacts. Some of the more prominent suggestions have related to charging policies, eligibility criteria, what might be called the “core” assessment process, resource allocation systems and joint working.

FORWARD PLAN

Bill Development

  1. The development of a draft Bill can taking anything between 3 and 12 months. The likely introduction slot for a Bill on SDS (September 2011) means that the development work on this Bill will be nearer to the 12 month timescale. There will be two opportunities to revise the draft Bill before Introduction to Parliament: the first in the run up to the consultation on a draft Bill, the second following the conclusion of that consultation. The Government is planning to launch that second consultation in November 2010, though final dates will depend on how quickly a draft Bill can be finalised.Scottish Government officials have already begun their work to develop a draft Bill for consultation. Most of the initial “policy instructions” are complete and related legal instructions have been submitted to the draftspeople, who are preparing to draft the Bill ready for consultation later this year.
  1. In the coming monthsimportant decisions willneed to be taken as to what to include and what to leave out of the draft Bill. There will also be decisions to take on the detail of particular provisions. For example, people will have different views on whether something should be a “duty” or a “power”. People will have contrasting views on the specific rights afforded to people and obligations placed on organisations, specifically councils. The Steering Group will be the forum where those debates are aired and, where possible, where consensus is reached. The Group should expect to be consulted on how particular provisions might work in practice. If members approve of the purpose of certain provisions but have doubts about how things will work in practice, they will be expected to inform the Government what it should do to amend the proposed legislation to address any points raised. The Group will start this work at itsnext meeting around October/November 2010 when the Scottish Government hope to have the draft Bill ready for consultation.

Bill development: The Steering Group’s role will be to consider particular aspects of the legislation, to offer comment on the various options so that draft provisons can be finalised in time for the introduction of the Bill in the Scottish Parliament”

Consultation

  1. All legislative proposals must be subject to rigorous and detailed public consultation. We have now completed “phase 1” of the consultation process – the consultation on the outline Bill proposals. Officials from the Bill Team will be able to provide a short informal summary of responses at the first meeting of the Steering Group.
  1. The Government are already preparing for Phase 2 – consultation on an actual draft Bill – which will take place later this year.It is vital that the Government communicate with as wide a range of people as possible within the budget available. This Group will consider outline plans andprogress reports on the consultation. It should also expect to participate in and discuss the outcomes from the consultation process.

Consultation: The Steering Group will participate in the consultation process itself. It will oversee and guide the design of all remaining public consultation for the Bill.

Evidence Base

  1. An evidence base is crucial to any legislative proposal; even more so in the current financial climate. There are two aspects. First, there is the gathering and analysis of evidence both for and against the policy. Second, there is the detailed work to forecast the full range of costs, benefits and impacts of the legislation. At the end of this work the Government will present a final Regulatory Impact Assessment and a Financial Memorandum to Parliament.
  1. For any Bill, Parliament will wish to scrutinise the costs, benefits and impacts. Although there are quite a large number of academic studies on the costs and benefits of self-directed support there is less available in the Scottish context.The Government will want to engage all partners, including local authorities, in its work to analyse the data available. One option might be some independent costing and analysis work. We propose a role for this Group in ensuring buy-in and participation in any work.

Evidence Base: The Steering Group will discuss and sign off on joint plans for the evidence base. It will ensure buy-in to and participation with, any primary research that may be conducted. It will also consider and debate any analysis as to costs, benefits and impacts of the SDS Bill.

Timeline and Future Meetings

  1. Finally, the Group is asked to note and approve the following timeline.

Figure 1: Self-directed Support (Scotland) Bill – Timeline

  1. Our meeting in August will seek to agree a remit and to approve this forward plan. We propose that the second meeting (likely to be in early November) should concentrate on the emerging draft Bill for consultation and the evidence base work. We propose to meet every 8-12 weeks thereafter and up to September 2011. From time to time, it may be necessary and helpful for the SG Bill Team to approach particular members of the Steering Group for their advice and views and, subject to other work pressures, to ask for their involvement in particular aspects of the Bill project.

Secretariat

Steering Group on a Self-directed Support (Scotland Bill)

August 2010

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