Carers (Scotland) Act 2016

2016 asp 9

The Bill for this Act of the Scottish Parliament was passed by the Parliament on 4 February 2016 and received Royal Assent on 9th March 2016

An Act of the Scottish Parliament to make provision about carers, including the identification of carers' needs for support through adult carer support plans and young carer statements; the provision of support to carers; the enabling of carer involvement in certain services; the preparation of local carer strategies; the establishment of information and advice services for carers; and for connected purposes.

PART 1 S KEY DEFINITIONS

“Carer”, “young carer” and “adult carer” S

1 Meaning of “carer” S

(1) In this Act “carer” means an individual who provides or intends to provide care for another individual (the “cared-for person”).

(2) But subsection (1) does not apply—

(a) in the case of a cared-for person under 18 years old, to the extent that the care is or would be provided by virtue of the person's age, or

(b) in any case, to the extent that the care is or would be provided—

(i) under or by virtue of a contract, or

(ii) as voluntary work.

(3) The Scottish Ministers may by regulations—

(a) provide that “contract” in subsection (2)(b)(i) does or, as the case may be, does not include agreements of a kind specified in the regulations,

(b) permit a relevant authority to disregard subsection (2)(b) where the authority considers that the relationship between the carer and the cared-for person is such that it would be appropriate to do so.

(4) In this Part “relevant authority” means a responsible local authority or a responsible authority (see section 41(1)).

Commencement Information

I1 S. 1(1)(2)(3)(b)(4) in force at 1.10.2017 by S.S.I. 2017/152, reg. 3, sch.

I2 S. 1(3)(a) in force at 31.5.2017 for specified purposes by S.S.I. 2017/152, reg. 2, sch.

I3 S. 1(3)(a) in force at 1.10.2017 in so far as not already in force by S.S.I. 2017/152, reg. 3, sch.

2 Meaning of “young carer” S

In this Act “young carer” means a carer who—

(a) is under 18 years old, or

(b) has attained the age of 18 years while a pupil at a school, and has since attaining that age remained a pupil at that or another school.

Commencement Information

I4 S. 2 in force at 1.10.2017 by S.S.I. 2017/152, reg. 3, sch.

3 Meaning of “adult carer” S

In this Act “adult carer” means a carer who is at least 18 years old but is not a young carer.

Commencement Information

I5 S. 3 in force at 1.10.2017 by S.S.I. 2017/152, reg. 3, sch.

“Personal outcomes” etc. S

4 Meaning of “personal outcomes” S

(1) In this Act “personal outcomes”, in relation to carers, includes outcomes which would, if achieved, enable carers to provide or continue to provide care for cared-for persons.

(2) The Scottish Ministers may by regulations make further provision about personal outcomes, including provision about—

(a) which outcomes may be personal outcomes,

(b) the matters to which a relevant authority is to have regard in considering which outcomes may be personal outcomes.

Commencement Information

I6 S. 4 in force at 1.10.2017 by S.S.I. 2017/152, reg. 3, sch.

5 Meaning of “identified personal outcomes” and “identified needs” S

(1) In this Act “identified personal outcomes”, in relation to a carer, means the personal outcomes which are identified as relevant to the carer.

(2) In this Act “identified needs”, in relation to a carer, means the needs for support (if any) which are identified in order to meet the carer's identified personal outcomes.

(3) In this section “identified” means identified by virtue of section 8 or 14.

Commencement Information

I7 S. 5 in force at 1.10.2017 by S.S.I. 2017/152, reg. 3, sch.

PART 2 S ADULT CARER SUPPORT PLANS AND YOUNG CARER STATEMENTS

CHAPTER 1 S ADULT CARER SUPPORT PLANS

Duty to prepare adult carer support plan S

6 Duty to prepare adult carer support plan S

(1) In this Act an “adult carer support plan” means a plan prepared by a responsible local authority setting out—

(a) an adult carer's identified personal outcomes,

(b) an adult carer's identified needs (if any), and

(c) the support (if any) to be provided by the responsible local authority to an adult carer to meet those needs.

(2) If a responsible local authority identifies a person as an adult carer, the responsible local authority must offer the person an adult carer support plan.

(3) The responsible local authority must prepare an adult carer support plan in relation to a person if—

(a) the person accepts an offer under subsection (2), or

(b) subsection (4) applies.

(4) This subsection applies if a person who appears to the responsible local authority to be an adult carer requests an adult carer support plan.

(5) A responsible local authority must exercise its functions under this section in a manner which encourages equal opportunities and in particular the observance of the equal opportunity requirements (within the meaning of Section L2 of Part 2 of schedule 5 of the Scotland Act 1998).

(6) For the purposes of this Chapter the “responsible local authority”, in relation to an adult carer, means the local authority for the area in which the cared-for person resides.

Modifications etc. (not altering text)

C1 S. 6 restricted (temp.) (5.4.2020) by Coronavirus Act 2020 (c. 7), ss. 16(3)(4), 87(2) (with ss. 16(12), 88-90); S.S.I. 2020/121, reg. 2(a) (which amending provision is suspended (30.11.2020) by The Coronavirus Act 2020 (Suspension Adult Social Care) (Scotland) Regulations 2020 (S.S.I. 2020/377), regs. 1(1), 2(b) (with reg. 4) and which expires (25.3.2022) by virtue of Coronavirus Act 2020 (c. 7), s. 89 (with s. 90))

C2 S. 6(2) excluded (1.4.2018) by The Carers (Scotland) Act 2016 (Transitional Provisions) Regulations 2018 (S.S.I. 2018/34), regs. 1(1), 2

Commencement Information

I8 S. 6 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

7 Adult carers of terminally ill cared-for persons S

(1) The Scottish Ministers must by regulations prescribe timescales for the preparation of adult carer support plans in relation to adult carers of terminally ill cared-for persons.

(2) For the purposes of this section and section 13, a cared-for person is terminally ill at any time if at that time the person suffers from a progressive disease and death in consequence of that disease can reasonably be expected within 6 months.

Commencement Information

I9 S. 7 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

8 Adult carers: identification of outcomes and needs for support S

(1) The Scottish Ministers may by regulations make provision about the identification of adult carers' personal outcomes and their needs for support, including—

(a) how personal outcomes and needs for support are to be identified,

(b) the process for doing so (including arrangements for the involvement of adult carers and cared-for persons),

(c) who may carry out identification,

(d) the sharing of information about adult carers and cared-for persons for the purpose of identifying personal outcomes and needs for support,

(e) the factors to be taken into account in identifying adult carers' personal outcomes and needs for support,

(f) the circumstances in which adult carers' personal outcomes and needs for support should be reviewed.

(2) In identifying an adult carer's personal outcomes and needs for support, a responsible local authority must, in particular, take into account any impact that having one or more protected characteristic (within the meaning of section 149(7) of the Equality Act 2010) has on the adult carer.

Commencement Information

I10 S. 8 in force at 9.2.2018 by S.S.I. 2018/25, reg. 2(a)

Content and review of adult carer support plan S

9 Content of adult carer support plan S

(1) An adult carer support plan must contain—

(a) information about the adult carer's personal circumstances at the time of preparation of the plan, including—

(i) the nature and extent of the care provided or to be provided,

(ii) the impact of caring on the adult carer's wellbeing and day-to-day life,

(b) information about the extent to which the adult carer is able and willing to provide care for the cared-for person,

(c) information about whether the adult carer has arrangements in place for the provision of care to the cared-for person in an emergency,

(d) information about whether the adult carer has arrangements in place for the future care of the cared-for person,

(e) information about the identification of the adult carer's personal outcomes, including about the carer's identified personal outcomes,

(f) information about the identification of the adult carer's needs for support, including—

(i) if the adult carer has identified needs, those needs,

(ii) if no needs for support are identified, that fact,

(g) information about the support available to adult carers and cared-for persons in the responsible local authority's area,

(h) if the adult carer does not reside in the responsible local authority's area, information about the support available to adult carers in the area where the adult carer resides,

(i) if the adult carer's identified needs meet the local eligibility criteria, information about the support which the responsible local authority provides or intends to provide to the adult carer to meet those needs,

(j) if the adult carer's identified needs do not meet the local eligibility criteria, information about the support which the responsible local authority provides or intends to provide to the adult carer,

(k) information about whether support should be provided in the form of a break from caring,

(l) information about the circumstances in which the plan is to be reviewed.

(2) Each second and subsequent adult carer support plan must also contain information about the extent to which any support provided under a previous plan has assisted in the achievement of the adult carer's identified personal outcomes.

(3) The Scottish Ministers may by regulations make provision about—

(a) other information which an adult carer support plan must (or must not) contain,

(b) the form of adult carer support plans.

Commencement Information

I11 S. 9 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

10 Review of adult carer support plans S

The Scottish Ministers may by regulations make provision about the review of adult carer support plans, including—

(a) the circumstances in which plans are to be reviewed,

(b) the frequency of review,

(c) the procedure for review,

(d) arrangements for obtaining the views of adult carers and cared-for persons.

Commencement Information

I12 S. 10 in force at 31.5.2017 by S.S.I. 2017/152, reg. 2, sch.

Provision of information about plan S

11 Adult carer support plan: provision of information to carer etc. S

(1) The responsible local authority must provide the persons mentioned in subsection (2) with the information contained in the adult carer support plan.

(2) Those persons are—

(a) the adult carer to whom the plan relates, and

(b) any other person the adult carer requests.

(3) Subsection (1) does not apply to the extent that the responsible local authority considers that provision of the information would not be appropriate.

(4) The information is to be provided as soon as practicable after—

(a) the plan is prepared, or

(b) in the case of a revised plan, the revised plan is prepared.

Commencement Information

I13 S. 11 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

CHAPTER 2 S YOUNG CARER STATEMENTS

Duty to prepare young carer statement S

12 Duty to prepare young carer statement S

(1) In this Act a “young carer statement” means a statement prepared by a responsible authority setting out—

(a) a young carer's identified personal outcomes,

(b) a young carer's identified needs (if any), and

(c) the support (if any) to be provided by the responsible local authority to a young carer to meet those needs.

(2) If a responsible authority identifies a person as a young carer, the responsible authority must offer the person a young carer statement.

(3) The responsible authority must prepare a young carer statement in relation to a person if—

(a) the person accepts an offer under subsection (2), or

(b) subsection (4) applies.

(4) This subsection applies if a person who appears to the responsible authority to be a young carer requests a young carer statement.

(5) Subsection (3) applies whether or not the young carer requires a child's plan in accordance with section 33 of the 2014 Act.

(6) Where the responsible authority, in relation to a young carer, is not the responsible local authority, the responsible authority must not provide the young carer statement to the young carer without the approval of the responsible local authority.

(7) A responsible authority must exercise its functions under this section in a manner which encourages equal opportunities and in particular the observance of the equal opportunity requirements (within the meaning of Section L2 of Part 2 of schedule 5 of the Scotland Act 1998).

(8) For the purposes of this Chapter—

• “responsible authority” has the meaning given by sections 19 and 20,

• “responsible local authority” means the local authority for the area in which the cared-for person resides.

Modifications etc. (not altering text)

C3 S. 12 restricted (temp.) (5.4.2020) by Coronavirus Act 2020 (c. 7), ss. 16(3)(4), 87(2) (with ss. 16(12), 88-90); S.S.I. 2020/121, reg. 2(a)

C4 S. 12(2) excluded (1.4.2018) by The Carers (Scotland) Act 2016 (Transitional Provisions) Regulations 2018 (S.S.I. 2018/34), regs. 1(1), 2

Commencement Information

I14 S. 12 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

13 Young carers of terminally ill cared-for persons S

The Scottish Ministers must by regulations prescribe timescales for the preparation of young carer statements in relation to young carers of terminally ill cared-for persons.

Commencement Information

I15 S. 13 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

14 Young carers: identification of outcomes and needs for support S

(1) The Scottish Ministers may by regulations make provision about the identification of young carers' personal outcomes and their needs for support, including—

(a) how personal outcomes and needs for support are to be identified,

(b) the process for doing so (including arrangements for the involvement of young carers and cared-for persons),

(c) who may carry out identification,

(d) the sharing of information about young carers and cared-for persons for the purpose of identifying personal outcomes and needs for support,

(e) the factors to be taken into account in identifying young carers' personal outcomes and needs for support,

(f) the circumstances in which young carers' personal outcomes and needs for support should be reviewed.

(2) In identifying a young carer's personal outcomes and needs for support, a responsible authority must, in particular, take into account any impact that having one or more protected characteristic (within the meaning of section 149(7) of the Equality Act 2010) has on the young carer.

Commencement Information

I16 S. 14 in force at 9.2.2018 by S.S.I. 2018/25, reg. 2(b)

Content and review of young carer statement S

15 Content of young carer statement S

(1) A young carer statement must contain—

(a) information about the young carer's personal circumstances at the time of the preparation of the statement, including—

(i) the nature and extent of the care provided or to be provided,

(ii) the impact of caring on the young carer's wellbeing and day-to-day life,

(b) information about the extent to which the young carer is able and willing to provide care for the cared-for person,

(c) information about the extent to which the responsible authority considers that the nature and extent of the care provided by the young carer is appropriate,

(d) information about whether the young carer has arrangements in place for the provision of care to the cared-for person in an emergency,

(e) information about whether the young carer has arrangements in place for the future care of the cared-for person,

(f) information about the identification of the young carer's personal outcomes, including about the young carer's identified personal outcomes,

(g) information about the identification of the young carer's needs for support, including—

(i) if the young carer has identified needs, those needs,

(ii) if no needs for support are identified, that fact,

(h) information about the support available to young carers and cared-for persons in the responsible local authority's area,

(i) if the young carer does not reside in the responsible local authority's area, information about the support available to young carers in the area where the young carer resides,

(j) if the young carer's identified needs meet the local eligibility criteria, information about the support which the responsible local authority provides or intends to provide to the young carer to meet those needs,

(k) if the young carer's identified needs do not meet the local eligibility criteria, information about the support which the responsible local authority provides or intends to provide to the young carer to meet those needs,

(l) information about whether support should be provided in the form of a break from caring,

(m) information about the circumstances in which the young carer statement is to be reviewed.

(2) Each second and subsequent young carer statement must also contain information about the extent to which any support provided under a previous statement has assisted in the achievement of the young carer's identified personal outcomes.

(3) For the purpose of subsection (1)(a)(ii), the responsible authority is—

(a) to assess the wellbeing of a young carer by reference to the extent to which the matters listed in section 96(2) of the 2014 Act are or, as the case may be, would be satisfied in relation to the young carer, and

(b) in doing so, to have regard to the guidance issued under section 96(3) of the 2014 Act.

(4) The Scottish Ministers may by regulations make provision about—

(a) other information which a young carer statement must (or must not) contain,

(b) the form of young carer statements.

Commencement Information

I17 S. 15 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

16 Review of young carer statements S

The Scottish Ministers may by regulations make provision about the review of young carer statements, including—

(a) the circumstances in which statements are to be reviewed,

(b) the frequency of review,

(c) the procedure for review,

(d) arrangements for obtaining the views of young carers and cared-for persons.

Commencement Information

I18 S. 16 in force at 31.5.2017 by S.S.I. 2017/152, reg. 2, sch.

Provision of information about statement S

17 Young carer statement: provision of information to carer etc. S

(1) A responsible authority must provide the persons mentioned in subsection (2) with the information contained in the young carer statement.

(2) Those persons are—

(a) the young carer to whom the young carer statement relates,

(b) any other person the young carer requests.

(3) Subsection (1) does not apply to the extent that the responsible authority considers that provision of the information would not be appropriate.

(4) The information is to be provided as soon as practicable after—

(a) the statement is prepared, or

(b) in the case of a revised statement, the revised statement is prepared.

Commencement Information

I19 S. 17 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

Continuation of young carer statement S

18 Continuation of young carer statement S

Despite the fact that a young carer has attained the age of 18 years, any young carer statement prepared in relation to that carer continues to have effect until the carer is provided with an adult carer support plan.

Commencement Information

I20 S. 18 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

Meaning of responsible authority: young carers S

19 Responsible authority: general S

(1) For the purposes of this Chapter the “responsible authority”, in relation to a young carer, is—

(a) where the young carer is a pre-school child, the health board for the area in which the child resides,

(b) where the young carer is not a pre-school child, the local authority for the area in which the child resides.

(2) Subsection (1) is subject to section 20.

(3) In this section and section 20 “pre-school child” has the meaning given by section 36(3) of the 2014 Act.

Commencement Information

I21 S. 19 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

20 Responsible authority: special cases S

(1) Where in pursuance of a decision of a local authority or health board a young carer who is a pre-school child resides in the area of a health board which is different to that in which the young carer would otherwise reside, the health board for the area in which the young carer would otherwise reside is the responsible authority in relation to the young carer.

(2) Where the young carer is a pupil at a public school which is managed by a local authority other than the one for the area in which the young carer resides, that other authority is the responsible authority in relation to the young carer.

(3) Where the young carer is a pupil at a grant-aided school or an independent school, the directing authority of that school is the responsible authority in relation to the young carer.

(4) Subsection (3) does not apply where the young carer is such a pupil by virtue of a placement by the local authority for the area in which the young carer resides.

(5) In this section “grant-aided school”, “independent school” and “public school” have the meanings given by section 135 of the Education (Scotland) Act 1980.

Commencement Information

I22 S. 20 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

PART 3 S PROVISION OF SUPPORT TO CARERS

CHAPTER 1 S ELIGIBILITY CRITERIA

Local eligibility criteria S

21 Duty to set local eligibility criteria S

(1) Each local authority must set the local eligibility criteria which it is to apply in its area.

(2) Local eligibility criteria are the criteria by which the local authority must determine whether it is required to provide support to carers to meet carers' identified needs.

(3) Before setting its local eligibility criteria, a local authority must—

(a) consult such persons and bodies representative of carers as the local authority considers appropriate, and

(b) take such steps as it considers appropriate to involve carers.

(4) A local authority must, when setting its local eligibility criteria, have regard among other things to such matters as the Scottish Ministers may by regulations specify.

Commencement Information

I23 S. 21 in force at 1.10.2017 by S.S.I. 2017/152, reg. 3, sch.

22 Publication and review of criteria S

(1) Each local authority must publish its local eligibility criteria.

(2) The first local eligibility criteria must be published before the end of the period of 6 months beginning with the day prescribed by the Scottish Ministers by regulations.

(3) Each local authority must carry out a first review of its local eligibility criteria before the end of the period, prescribed by the Scottish Ministers by regulations, beginning with the day on which the criteria are published.

(4) Each local authority—

(a) must thereafter review its local eligibility criteria before the end of the relevant period,

(b) may from time to time carry out such a review.

(5) The relevant period is the period of 3 years beginning with whichever is the later of the day on which the local authority last published—

(a) its local eligibility criteria, or

(b) a statement under subsection (6)(b).

(6) Following a review under subsection (3) or (4), the local authority—

(a) may set revised local eligibility criteria,

(b) must, where it does not set revised criteria, publish a statement to that effect.

(7) Subsection (1) and section 21(4) apply to revised local eligibility criteria set under this section as they apply to criteria set under section 21.

Modifications etc. (not altering text)

C5 S. 22(2): 1.10.2017 prescribed by S.S.I. 2017/207, reg. 2

C6 S. 22(3): period of 3 years prescribed by S.S.I. 2017/207, reg. 3

Commencement Information

I24 S. 22(1) in force at 1.10.2017 by S.S.I. 2017/152, reg. 3, sch.

I25 S. 22(2)(3) in force at 31.5.2017 for specified purposes by S.S.I. 2017/152, reg. 2, sch.

I26 S. 22(2) in force at 1.10.2017 in so far as not already in force by S.S.I. 2017/152, reg. 3, sch.

I27 S. 22(3) in force at 1.4.2018 in so far as not already in force by S.S.I. 2017/152, reg. 4

I28 S. 22(4)-(7) in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

National eligibility criteria S

23 National eligibility criteria S

(1) The Scottish Ministers may make regulations setting out national eligibility criteria.

(2) National eligibility criteria are the criteria by which each local authority must assess whether it is required to provide support to carers to meet carers' identified needs.

(3) Where regulations under this section are made and have not been revoked—

(a) the national eligibility criteria set out in them apply in place of any local eligibility criteria published under section 22,

(b) sections 21 and 22 do not apply, and

(c) references in sections 9(1)(i) and (j), 15(1)(j) and (k) and 24(3) to local eligibility criteria are to be read as references to national eligibility criteria.

(4) Regulations under this section may modify any enactment (including this Act).

Commencement Information

I29 S. 23 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

CHAPTER 2 S DUTY TO PROVIDE SUPPORT TO CARERS

24 Duty to provide support S

(1) This section applies where a carer has identified needs which cannot be met by services or assistance—

(a) provided to the cared-for person (other than care provided by virtue of section 25 in order to provide the carer with a break from caring), or

(b) provided generally to persons in the area of the responsible local authority or, where the carer does not reside in the area of that authority, in the area where the carer resides.

(2) The responsible local authority must determine whether any of those needs are eligible needs.

(3) A carer's eligible needs are the carer's identified needs which meet the local eligibility criteria.

(4) The responsible local authority—

(a) must provide support to the carer to meet the carer's eligible needs, and

(b) may provide support to the carer to meet the carer's other identified needs.

(5) Subsection (4)(a) applies—

(a) in the case of an adult carer, whether or not the carer's eligible needs may also, following assessment under section 12A(1) of the 1968 Act, call for the provision of community care services to the carer under that section,

(b) in the case of a young carer, whether or not the carer's eligible needs may also be met by the provision of services to the carer under section 22(1) of the 1995 Act.

(6) In this section the “responsible local authority”, in relation to a carer, means the local authority for the area in which the cared-for person resides.

Modifications etc. (not altering text)

C7 S. 24 applied (with modifications) (temp.) (5.4.2020) by Coronavirus Act 2020 (c. 7), ss. 16(5)(6), 87(2) (with ss. 88-90); S.S.I. 2020/121, reg. 2(a) (and which expires (25.3.2022) by virtue of Coronavirus Act 2020 (c. 7), s. 89 (with s. 90))

Commencement Information

I30 S. 24 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

25 Provision of support to carers: breaks from caring S

(1) A local authority, in determining which support to provide to a carer under section 24(4), must consider in particular whether the support should take the form of or include a break from caring.

(2) The Scottish Ministers may by regulations make provision—

(a) about the form of support that may be provided as a break from caring,

(b) where the regulations provide for a break from caring to take the form of the provision of care for the cared-for person, about the role of the cared-for person in relation to how that care is provided.

(3) Support provided by virtue of subsection (1) may be provided on a regular basis or on a temporary basis and may be provided for varying periods of time.

(4) In providing support by virtue of subsection (1), a local authority must have regard to the desirability of breaks from caring being provided on a planned basis.

(5) Section 19(2) of the Social Care (Self-directed Support) (Scotland) Act 2013 applies in relation to support provided as a break from caring as it applies in relation to any other support.

Commencement Information

I31 S. 25(1)(2)(b)(3)-(5) in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

I32 S. 25(2)(a) in force at 31.5.2017 for specified purposes by S.S.I. 2017/152, reg. 2, sch.

I33 S. 25(2)(a) in force at 1.4.2018 in so far as not already in force by S.S.I. 2017/152, reg. 4

26 Charging for support provided to carers S

In section 87 of the 1968 Act (power of local authority to charge for services and accommodation provided under certain enactments)—

(a) in subsection (1), for “section 3(4) of the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1)” substitute “ section 24(4) of the Carers (Scotland) Act 2016 ”,

(b) in subsection (1A)(a), for “section 3(4) of the Social Care (Self-directed Support) (Scotland) Act 2013 (asp 1)” substitute “ section 24(4) of the Carers (Scotland) Act 2016 ”.

Commencement Information

I34 S. 26 in force at 31.5.2017 by S.S.I. 2017/152, reg. 2, sch. (with reg. 5)

PART 4 S CARER INVOLVEMENT

27 Duty to involve carers in carer services S

(1) Each local authority must take such steps as it considers appropriate to involve the persons mentioned in subsection (3) in carer services of that local authority.

(2) Each health board must take such steps as it considers appropriate to involve the persons mentioned in subsection (3) in carer services of that health board.

(3) Those persons are—

(a) carers in the area of the local authority or, as the case may be, the health board, and

(b) such persons and bodies representative of carers as the local authority or, as the case may be, the health board considers appropriate.

(4) “Carer services” means services provided, or to be provided, by the local authority or, as the case may be, the health board to—

(a) carers in relation to the care they provide, or intend to provide, for cared-for persons,

(b) cared-for persons in relation to the care they receive.

(5) Subsection (4) does not apply to—

(a) services which are contained in a children's services plan (within the meaning of section 8 of the 2014 Act) if the persons mentioned in subsection (3) have been consulted in relation to the preparation of that plan,

(b) services provided by virtue of functions which have been delegated under an integration scheme (within the meaning of section 1(3) of the Public Bodies (Joint Working) (Scotland) Act 2014) or which are to be carried out in conjunction with those functions.

(6) “Involvement”, in relation to carer services, includes involvement in considering—

(a) what needs might call for the provision of services,

(b) what services might be provided to meet those needs,

(c) how those services might be provided, and

(d) how the provision of those services might be evaluated.

Commencement Information

I35 S. 27 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

28 Carer involvement in hospital discharge of cared-for persons S

(1) Each health board must ensure that, before a cared-for person is discharged from hospital, it involves any carer of that person in the discharge.

(2) A health board fulfils the duty in subsection (1) by—

(a) taking such steps as it considers appropriate to—

(i) inform the carer, as soon as reasonably practicable, of the intention to discharge the cared-for person, and

(ii) invite the carer to give views about the discharge of the cared-for person, and

(b) taking account, so far as it is reasonable and practicable to do so, of any views given by the carer in making decisions relating to the discharge of the cared-for person.

(3) This section applies only—

(a) where the health board can identify without delay that a person is the carer of the cared-for person, and

(b) where it appears to the health board that the cared-for person is likely to require care following discharge.

(4) In this section “health board” means—

(a) in the case of the state hospital (within the meaning given by section 102 of the National Health Service (Scotland) Act 1978), the State Hospitals Board for Scotland constituted by order under section 2(1)(b) of that Act,

(b) in the case of a hospital mentioned in subsection (5), a health board constituted under section 2(1)(a) of that Act.

(5) The hospitals referred to in subsection (4)(b) are—

(a) a health service hospital (within the meaning given by section 108(1) of the National Health Service (Scotland) Act 1978), or

(b) where a person receives accommodation or services in a hospital other than a health service hospital under arrangements made by a health board, such a hospital.

Commencement Information

I36 S. 28 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

29 Involvement of, assistance to and collaboration with carers S

In section 1(1) of the Social Care (Self-directed Support) (Scotland) Act 2013 (general principles applicable in carrying out certain care functions), after paragraph (c) insert—

“(d) Part 2 or 3 of the Carers (Scotland) Act 2016.”.

Commencement Information

I37 S. 29 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

30 Care assessments: duty to take account of care and views of carers S

(1) Section 12A of the 1968 Act (duty of local authority to assess needs) is amended in accordance with subsections (2) to (4).

(2) In subsection (1)(b)—

(a) for sub-paragraph (i) substitute—

“(i) if an adult carer provides, or intends to provide, care for that person, of the care provided by that carer,

(ia) if a young carer provides, or intends to provide, care for that person, of the care provided by that carer,”,

(b) in sub-paragraph (ii)—

(i) “both” is repealed,

(ii) “and of the views of the carer” is repealed,

(iii) “, in either case,” is repealed.

(3) After subsection (1) insert—

“(1A) In subsection (1)(b)(i) and (ia), the reference to the care provided by a carer means—

(a) in the case of an adult carer who has an adult carer support plan, the information about that care set out in that plan,

(b) in the case of a young carer who has a young carer statement, the information about that care set out in that statement.

(1B) In—

(a) assessing the needs of a person for services under subsection (1)(a),

(b) deciding under subsection (1)(b) whether those needs call for the provision of any services, and

(c) deciding how any such services are to be provided,

a local authority must take account of the views of the carer, in so far as it is reasonable and practicable to do so.”.

(4) In subsection (8)—

(a) before the definition of “community care services” insert—

““adult carer” and “adult carer support plan” have the meanings given by the Carers (Scotland) Act 2016,”,

(b) after the definition of “person” insert—

““young carer” and “young carer statement” have the meanings given by the Carers (Scotland) Act 2016.”.

(5) Section 23 of the 1995 Act (children affected by disability) is amended in accordance with subsections (6) and (7).

(6) In subsection (4)—

(a) for paragraph (a) substitute—

“(a) if an adult carer provides, or intends to provide, care for the child, of the care provided by that carer,

(aa) if a young carer provides, or intends to provide, care for the child, of the care provided by that carer,”,

(b) in paragraph (b)—

(i) sub-paragraph (ii) is repealed (together with the “and” immediately before it),

(ii) for “child or carer” substitute “ or child ”.

(7) After subsection (4) insert—

“(5) In subsection (4)(a) and (aa), the reference to the care provided by a carer means—

(a) in the case of an adult carer who has an adult carer support plan, the information about that care set out in that plan,

(b) in the case of a young carer who has a young carer statement, the information about that care set out in that statement.

(6) In—

(a) determining the needs of a child under subsection (3),

(b) deciding whether to provide any services under section 22(1), and

(c) deciding how any such services are to be provided,

a local authority must take account of the views of the carer, in so far as it is reasonable and practicable to do so.

(7) In this section—

• “adult carer” and “adult carer support plan” have the meanings given by the Carers (Scotland) Act 2016,

• “young carer” and “young carer statement” have the meanings given by the Carers (Scotland) Act 2016.”.

Commencement Information

I38 S. 30 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

PART 5 S LOCAL CARER STRATEGIES

31 Duty to prepare local carer strategy S

(1) Each local authority and relevant health board must jointly prepare a local carer strategy.

(2) A local carer strategy means a document setting out—

(a) plans for identifying relevant carers and obtaining information about the care they provide or intend to provide to cared-for persons in the local authority's area,

(b) an assessment of the demand for support to relevant carers,

(c) the support available to relevant carers in the authority's area from—

(i) the authority,

(ii) the relevant health board,

(iii) such other persons and bodies as the authority and relevant health board consider appropriate,

(d) an assessment of the extent to which demand for support to relevant carers is currently not being met,

(e) plans for supporting relevant carers,

(f) plans for helping relevant carers put arrangements in place for the provision of care to cared-for persons in emergencies,

(g) an assessment of the extent to which plans for supporting relevant carers may reduce any impact of caring on relevant carers' health and wellbeing,

(h) the intended timescales for preparing adult carer support plans and young carer statements,

(i) such other information as the authority and relevant health board consider appropriate.

(3) A local carer strategy must contain information relating to the particular needs and circumstances of young carers.

(4) Before preparing a local carer strategy, the local authority and the relevant health board must jointly—

(a) consult such persons and bodies representative of carers as they consider appropriate, and

(b) take such steps as they consider appropriate to involve relevant carers.

(5) In this section “relevant carers” means—

(a) carers who reside in the area of a local authority (whether or not they provide or intend to provide care for cared-for persons in that area), and

(b) carers who do not reside in the authority's area but who provide or intend to provide care to cared-for persons in that area.

(6) In this Part “relevant health board”, in relation to a local authority, means—

(a) if the area of the local authority is the same as that of a health board, that health board,

(b) if the area of the local authority is not the same as that of a health board, the health board within whose area the area of the local authority falls.

Commencement Information

I39 S. 31 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

32 Preparation of local carer strategy S

In preparing a local carer strategy, the local authority and the relevant health board must have regard among other things to—

(a) any plans for the provision of services relevant to young carers which are set out in the children's services plan prepared for the area of the local authority under section 8 of the 2014 Act,

(b) the aims set out in section 9(2) of the 2014 Act,

(c) the criteria for assessing the wellbeing of children and young people set out in section 96 of the 2014 Act,

(d) any national health and wellbeing outcomes prescribed under section 5 of the Public Bodies (Joint Working) (Scotland) Act 2014,

(e) any arrangements for the carrying out of integration functions relevant to carers which are set out in the strategic plan prepared for the area of the local authority under section 29 of the Public Bodies (Joint Working) (Scotland) Act 2014,

(f) any other local or national plans relating to the provision of social work services and health services as the authority and relevant health board consider appropriate.

Commencement Information

I40 S. 32 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

33 Publication and review of local carer strategy S

(1) Each local authority and relevant health board must jointly publish their local carer strategy.

(2) The first local carer strategy is to be published before the end of the relevant period (within the meaning of section 37(10) of the Public Bodies (Joint Working) (Scotland) Act 2014) during which section 31 comes into force.

(3) Each local authority and relevant health board—

(a) must jointly review their strategy before the end of the period mentioned in subsection (4),

(b) may from time to time carry out such a review.

(4) That period is the period of 3 years beginning with whichever is the later of the day on which the local authority and relevant health board last published—

(a) their local carer strategy, or

(b) a statement under subsection (6)(b).

(5) In reviewing their local carer strategy, section 31(4) applies.

(6) Following a review under subsection (3), the local authority and relevant health board—

(a) may prepare a revised local carer strategy,

(b) must, where they do not prepare a revised strategy, publish a statement to that effect.

(7) Subsection (1) and section 32 apply to a revised local carer strategy prepared under this section as they apply to a local carer strategy prepared under section 31.

Commencement Information

I41 S. 33 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

PART 6 S INFORMATION AND ADVICE FOR CARERS

Information and advice service S

34 Information and advice service for carers S

(1) Each local authority must establish and maintain, or ensure the establishment and maintenance of, an information and advice service for relevant carers.

(2) The service must provide information and advice in particular about—

(a) carers' rights, including those set out in the carers' charter,

(b) income maximisation for carers,

(c) education and training for carers,

(d) advocacy for carers,

(e) health and wellbeing (including counselling) for carers,

(f) bereavement support services for carers following the death of a cared-for person,

(g) emergency care planning and future care planning for carers.

(3) The information and advice must be accessible to, and proportionate to the needs of, the persons to whom it is provided.

(4) In providing information and advice about the matters mentioned in subsection (2), the service must, in particular, identify information and advice likely to be of particular relevance to persons who have one or more protected characteristics (within the meaning of section 149(7) of the Equality Act 2010).

(5) In this section “relevant carers” has the meaning given by section 31(5).

Commencement Information

I42 S. 34 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

Short breaks services statements S

35 Short breaks services statements S

(1) Each local authority must prepare and publish a short breaks services statement.

(2) A short breaks services statement means a statement of information about the short breaks services available in Scotland for carers and cared-for persons.

(3) The information must be accessible to, and proportionate to the needs of, the persons to whom it is provided.

(4) The Scottish Ministers may by regulations make further provision about the preparation, publication and review of short breaks services statements.

Commencement Information

I43 S. 35(1)-(3) in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

I44 S. 35(4) in force at 31.5.2017 for specified purposes by S.S.I. 2017/152, reg. 2, sch.

I45 S. 35(4) in force at 1.4.2018 in so far as not already in force by S.S.I. 2017/152, reg. 4

Carers' charter S

36 Carers' charter S

(1) The Scottish Ministers must prepare a carers' charter.

(2) A carers' charter is a document setting out the rights of carers as provided for in or under this Act.

(3) Nothing in the charter is to—

(a) give rise to any new rights, or

(b) alter any existing rights.

(4) The charter may also contain such other information as the Scottish Ministers consider appropriate.

(5) The Scottish Ministers may from time to time revise the charter prepared under subsection (1).

(6) The Scottish Ministers must—

(a) before preparing the charter under subsection (1) or revising it under subsection (5)—

(i) consult such persons and bodies representative of carers as the Scottish Ministers consider appropriate,

(ii) consult such other persons as the Scottish Ministers consider appropriate,

(iii) take such steps as they consider appropriate to involve carers,

(b) lay the charter or revised charter before the Scottish Parliament, and

(c) publish the charter or revised charter in such manner as they consider appropriate.

Commencement Information

I46 S. 36 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

PART 7 S GENERAL PROVISION

Guidance and directions S

37 Guidance and directions to local authorities S

(1) Section 5 of the 1968 Act (powers of the Scottish Ministers) is amended as follows.

(2) In subsection (1), after “Children's Hearings (Scotland) Act 2011 (asp 1)” insert “ and the Carers (Scotland) Act 2016 ”.

(3) In subsection (1B), after paragraph (t) insert—

“(u) the Carers (Scotland) Act 2016.”.

Commencement Information

I47 S. 37 in force at 1.10.2017 by S.S.I. 2017/152, reg. 3, sch.

38 Guidance and directions to health boards and directing authorities S

(1) Each health board and each directing authority must have regard to any guidance issued by the Scottish Ministers about the exercise of functions conferred by this Act.

(2) The Scottish Ministers may issue directions to health boards and directing authorities, either individually or collectively, about the exercise of functions conferred by this Act.

(3) Each health board must comply with any direction issued to it under this section.

(4) Each directing authority must comply with any direction issued to it under this section.

Commencement Information

I48 S. 38 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

Assistance to and by voluntary organisations etc. S

39 Financial and other assistance to voluntary organisations etc. S

In section 10(1) of the 1968 Act (financial and other assistance to voluntary organisations etc.), for “and (p)” substitute “ , (p) and (u) ”.

Commencement Information

I49 S. 39 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

40 Assistance by voluntary organisations etc. S

In section 4 of the 1968 Act (provisions relating to performance of functions by local authorities), after “Children's Hearings (Scotland) Act 2011 (asp 1)” insert “ or Part 2, 3, 4, 5 or 6 of the Carers (Scotland) Act 2016 ”.

Commencement Information

I50 S. 40 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

PART 8 S FINAL PROVISIONS

41 Interpretation S

(1) In this Act—

• “1968 Act” means the Social Work (Scotland) Act 1968,

• “1995 Act” means the Children (Scotland) Act 1995,

• “2014 Act” means the Children and Young People (Scotland) Act 2014,

• “adult carer” has the meaning given by section 3,

• “adult carer support plan” has the meaning given by section 6,

• “carer” has the meaning given by section 1,

• “directing authority” has the meaning given by section 45 of the 2014 Act,

• “grant-aided school” has the meaning given by section 20(5),

• “health board” (except in section 28) means a health board constituted under section 2(1)(a) of the National Health Service (Scotland) Act 1978,

• “identified needs”, in relation to a carer, has the meaning given by section 5(2),

• “identified personal outcomes”, in relation to a carer, has the meaning given by section 5(1),

• “independent school” has the meaning given by section 20(5),

• “local eligibility criteria” has the meaning given by section 21(2),

• “named person”, in relation to a young carer, has the meaning given by section 32 of the 2014 Act,

• “national eligibility criteria” has the meaning given by section 23(2),

• “personal outcomes” has the meaning given by section 4,

• “public school” has the meaning given by section 20(5),

• “relevant authority” has the meaning given by section 1(4),

• “relevant carers” has the meaning given by section 31(5),

• “responsible authority”, for the purposes of Chapter 2 of Part 2 (young carer statements), has the meaning given by sections 19 and 20,

• “responsible local authority”, in relation to a carer, means the local authority for the area in which the cared-for person resides,

• “terminally ill”, in relation to a cared-for person, has the meaning given by section 7(2),

• “young carer” has the meaning given by section 2,

• “young carer statement” has the meaning given by section 12.

(2) In this Act references to the provision of support by a responsible local authority include references to support the provision of which is secured by the authority.

42 Regulations S

(1) Any power of the Scottish Ministers to make regulations under this Act includes power to make—

(a) different provision for different purposes,

(b) incidental, supplementary, consequential, transitional, transitory or saving provision.

(2) Regulations under—

(a) section 1(3),

(b) section 7(1),

(c) section 8(1),

(d) section 13,

(e) section 14(1),

(f) section 21(4),

(g) section 23(1),

(h) section 25(2),

(i) section 43(1) which add to, replace or omit the text of an Act,

are subject to the affirmative procedure.

(3) All other regulations under this Act are subject to the negative procedure.

(4) This section does not apply to regulations under section 45.

43 Ancillary provision S

(1) The Scottish Ministers may by regulations make such incidental, supplementary, consequential, transitional, transitory or saving provision as they consider necessary or expedient for the purposes of, or in connection with, any provision made by or under this Act.

(2) Regulations under subsection (1) may modify any enactment (including this Act).

44 Consequential modifications S

The schedule contains modifications consequential on the provisions of this Act.

Commencement Information

I51 S. 44 in force at 24.4.2017 for specified purposes by S.S.I. 2017/94, reg. 2(a)

I52 S. 44 in force at 1.4.2018 in so far as not already in force by S.S.I. 2017/152, reg. 4

45 Commencement S

(1) This section and sections 41 to 43 and 46 come into force on the day after Royal Assent.

(2) The remaining provisions of this Act come into force on such date as the Scottish Ministers may by regulations appoint.

(3) Different days may be appointed for different purposes.

(4) Regulations under subsection (2) may include transitional, transitory or saving provision.

46 Short title S

The short title of this Act is the Carers (Scotland) Act 2016.

SCHEDULE S CONSEQUENTIAL MODIFICATIONS

(introduced by section 44)

Social Work (Scotland) Act 1968 S

1 (1) The Social Work (Scotland) Act 1968 is amended as follows. S

(2) Sections 12AA and 12AB are repealed.

Commencement Information

I53 Sch. para. 1 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

Children (Scotland) Act 1995 S

2 (1) The Children (Scotland) Act 1995 is amended as follows. S

(2) Sections 24 and 24A are repealed.

Commencement Information

I54 Sch. para. 2 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

Community Care and Health (Scotland) Act 2002 S

3 (1) The Community Care and Health (Scotland) Act 2002 is amended as follows. S

(2) Section 9(2) is repealed.

(3) Sections 11 and 12 are repealed.

Commencement Information

I55 Sch. para. 3 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

Public Services Reform (Scotland) Act 2010 S

4 S In schedule 13 of the Public Services Reform (Scotland) Act 2010, after the entry relating to the Adoption and Children (Scotland) Act 2007, insert— “ Carers (Scotland) Act 2016 ”.

Commencement Information

I56 Sch. para. 4 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

Social Care (Self-directed Support) (Scotland) Act 2013 S

5 (1) The Social Care (Self-directed Support) (Scotland) Act 2013 is amended as follows. S

(2) In section 1 (general principles)—

(a) in subsection (1)(b), for “to 24” substitute “ and 23 ”,

(b) in subsection (6)(a)—

(i) for “or, as the case may be, section 12AA of that Act or section 23(3) or 24” substitute “ , section 23(3) ”,

(ii) after “1995 Act” insert “ or by virtue of section 8 or 14 of the Carers (Scotland) Act 2016, ”,

(c) in subsection (6)(b), for “section 3(4)” substitute “ section 24 of the Carers (Scotland) Act 2016 ”.

(3) Section 3 (support for adult carers) is repealed.

(4) In section 7 (choice of options: adult carers)—

(a) in subsection (1), for “(the “supported person”) under section 3(4)” substitute “ an adult carer or, as the case may be, a young carer under section 24(4) of the Carers (Scotland) Act 2016 ”,

(b) after subsection (4) insert—

“(4A) Subsection (4B) applies where the supported person is an appropriate person in relation to the young carer.

(4B) Before making a choice in pursuance of subsection (2) or (3)(b), the supported person must, so far as practicable and taking account of the maturity of the young carer—

(a) give the young carer an opportunity to indicate whether the young carer wishes to express the young carer's views,

(b) if the young carer wishes to do so, give the young carer an opportunity to express them, and

(c) have regard to any views expressed by the young carer.”,

(c) after subsection (6) insert—

“(7) In this section—

• “the 1989 Act” means the Children Act 1989,

• “the 1995 Order” means the Children (Northern Ireland) Order 1995 (S.I. 1995/755),

• “adult carer” has the meaning given by section 3 of the Carers (Scotland) Act 2016,

• “appropriate person”, in relation to a young carer, means—

  (a)

  a parent or guardian having parental responsibilities or parental rights in relation to the young carer under Part 1 of the 1995 Act,

  (b)

  a person in whom parental responsibilities or parental rights are vested by virtue of section 11(2)(b) of the 1995 Act,

  (c)

  a person having parental responsibilities or parental rights by virtue of section 11(12) of the 1995 Act,

  (d)

  a parent having parental responsibility for the young carer under Part 1 of the 1989 Act,

  (e)

  a person having parental responsibility for the young carer by virtue of—

  (i)

  section 12(2) of the 1989 Act,

  (ii)

  section 14C of the 1989 Act, or

  (iii)

  section 25(3) of the Adoption and Children Act 2002,

  (f)

  a parent having parental responsibility for the young carer under Part 2 of the 1995 Order,

  (g)

  a person having parental responsibility for the young carer under Article 12(2) of the 1995 Order,

  (h)

  a person in whom parental responsibilities or parental rights are vested by virtue of a permanence order (as defined in section 80(2) of the Adoption and Children (Scotland) Act 2007),

• “supported person” means—

  (a)

  where the support is to be provided to an adult carer, the adult carer,

  (b)

  where the support is to be provided to a young carer—

  (i)

  if the young carer is under 16 years of age, an appropriate person,

  (ii)

  if the young carer is 16 years of age or over, the young carer,

• “young carer” has the meaning given in section 2 of the Carers (Scotland) Act 2016.”,

(d) the title to that section becomes “ Choice of options: adult carers and young carers ”.

(5) In section 10 (provision of information: children under 16)—

(a) in subsection (1), for “section 8” substitute “ section 7 or 8 ”,

(b) in subsection (2)—

(i) before first “child” insert “ young carer or, as the case may be, ”,

(ii) before second “child” insert “ young carer or ”,

(c) in subsection (3), before “child” insert “ young carer or ”,

(d) in subsection (4), after “meaning” insert “—

(a) in relation to a young carer, as in section 7(7),

(b) in relation to a child,”.

(6) In section 11(3) (local authority functions), after “1968 Act” insert “ , section 24 of the Carers (Scotland) Act 2016 ”.

Commencement Information

I57 Sch. para. 5 in force at 1.4.2018 by S.S.I. 2017/152, reg. 4

Public Bodies (Joint Working) (Scotland) Act 2014 S

6 (1) The Public Bodies (Joint Working) (Scotland) Act 2014 is amended as follows. S

(2) In Part 1 of the schedule—

(a) in the entry for the Social Work (Scotland) Act 1968, “12AA, 12AB,” is repealed,

(b) in the entry for the Children (Scotland) Act 1995, after “19” insert “to 23, 25”,

(c) after the entry relating to the Social Care (Self-directed Support) (Scotland) Act 2013, insert— “Sections 6, 12, 21, 24, 25, 31, 34 and 35 of the Carers (Scotland) Act 2016.”.

Commencement Information

I58 Sch. para. 6(1)(2)(c) in force at 24.4.2017 by S.S.I. 2017/94, reg. 2(b)

I59 Sch. para. 6(2)(a)(b) in force at 1.4.2018 by S.S.I. 2017/152, reg. 4