Social Care (Self-directed Support) (Scotland) Bill: Stage 2
Item 2 is stage 2 consideration of the Social Care (Self-directed Support) (Scotland) Bill. I welcome Michael Matheson, the Minister for Public Health, and the officials who are accompanying him: Jean Maclellan, head of adult care and support division; Craig Flunkert, bill team leader; Kirsty McGrath, from the legal directorate; and Ian Shanks from the Office of the Scottish Parliamentary Counsel.
Section 1 agreed to.
After section 1
Amendment 1, in the name of the minister, is in a group on its own.
Throughout the passage of the bill, I have been keen to work with committee members to strengthen the bill where appropriate. I am therefore pleased to have followed the committee’s recommendation that consideration should be given to making the principles of independent living, which are already implicit in the bill, more explicit by way of direct reference to them on the face of the bill.
I recall that Richard Simpson first raised the issue when I gave evidence to the committee during its consideration of the bill at stage 1. The committee’s recommendation in its stage 1 report was based on the evidence received from groups that represent the interests of people who have disabilities, such as the independent living in Scotland project, Self Directed Support Scotland and the Scottish Consortium of Learning Disability.
There have been challenges in shaping independent living principles into legislative proposals and putting them into the structure of the bill. For example, the key element of independent living choice is already dealt with by the provisions in the bill that enshrine choice and by the general principles in section 1(2).
However, I am confident that amendment 1 succeeds in introducing on to the face of the bill core principles of independent living: being treated with dignity and having your desire to participate in community life respected. I am confident that the amendment will help to ensure that the existing principles contained in section 1—principles that are largely concerned with the process of self-directed support—are accompanied by ones that define the end goal of the person’s social care assessment and care and support plan. Self-directed support processes need to be informed by that end goal.
The independent living principle will join the existing Social Work (Scotland) Act 1968 duty on local authorities to promote social welfare and in many respects it will reinforce and provide a modern interpretation of that end goal of social care.
As with the principles in section 1, the principles that are introduced by amendment 1 will help to guide practitioners when they implement the various duties and powers that are contained elsewhere in the bill and when there is interaction with social care assessments and support provision. I ask the committee to support the amendment.
I move amendment 1.
11:15
I welcome the amendment. As the minister alluded to, I indicated that the amendment is an important expansion of the general principles that would incorporate some of the evidence that we had from those who were concerned to ensure that the principles included clearer aspects of independent living.
I, too, welcome the amendment.
Amendment 1 agreed to.
Section 2 agreed to.
Section 3—Options for self-directed support
Amendment 2, in the name of the minister, is grouped with amendments 3, 21, 4 to 6, 22, 7, 7A, 11, 11A, 12, 12A and 20.
As committee members will be aware, section 3 defines the options for self-directed support that will be available to an individual when they are eligible for social care. In the bill as introduced, the direct payment option was described in section 3(2) as
“a payment of the relevant amount by a local authority to a supported person”.
Amendments 2 to 7, 11, 12 and 20 have been lodged in response to concerns raised by stakeholders through the bill steering group that a transparent budget is a vital component of not just the direct payment but all the options that an individual may choose. In response to those concerns, amendments 2 to 5 introduce the element of “relevant amount” into the description of options 2, 3 and 4 in section 3(1). When considered alongside current option 1—the direct payment—it will mean that all four options for self-directed support will include a reference to a transparent financial resource.
Amendment 6 makes the necessary consequential amendments to the definition of “relevant amount”; it removes the current reference to “direct payment” and replaces it with a more generic reference to support, which is meaningful for all four options.
Amendments 7, 11 and 12 impose a further duty on local authorities to inform the individual—the child, the parent, the adult or the carer who is being provided with support—of the amount of funding available under the options and the period to which that funding relates. That ensures that there is transparency about the funding available, regardless of whether it is a service that will be arranged by the local authority, a direct payment or an individual service fund that the person may direct.
Amendment 21, in the name of Richard Simpson, seeks to make clear that the budget allocated for a person’s support under option 2 can be managed by a third party; in other words, the budget could be managed not only by a local authority but by a delegated third-party provider organisation, which could manage with the consent of the supported person. In effect, that would be the same as a third-party direct payment whereby a sum of money is paid to someone other than the local authority or the supported person.
We intend to make provision for that in the regulations, using the regulation-making powers in section 13. That will allow for a more flexible approach, as some third parties may be providers but others may not be described as such; in other words, they may include brokerage organisations or, indeed, individuals. Statutory guidance will also make clear that the budget can be delegated to a third party and that that can include a provider organisation. I am clear that it is unnecessary to amend the bill to add detail that will be better situated in the regulations.
I suspect that, by lodging amendments 22, 7A, 11A and 12A, Richard Simpson is attempting to address unfairness in the setting of rates between various options. However, it is not appropriate for the Government to restrict flexibility without a full understanding of the potential consequences of doing so. In guidance, we will give full consideration to commissioning, procurement and finance issues that will lead to discrepancies in the application of resources that need to be addressed better. Furthermore, amendments 2 to 7, 11, 12 and 20 will increase the transparency of the choices that are available to individuals, which should lead to a fairer and more open system.
Therefore, I urge Richard Simpson not to move any of the amendments in his name. However, if he is minded to move them, I urge the committee to reject them.
I move amendment 2 and ask the committee to support the other amendments in my name.
I welcome amendments 2 to 7, 11, 12 and 20, because they increase transparency, which is an important first step in assuring people who apply for direct support about the money that they would get under the different options. That is extremely welcome.
However, my amendments address concerns. First, amendment 21 tries to put into the bill what is stated in paragraph 23 of the policy memorandum, which says:
“The resource can remain with the local authority or it can be delegated to a provider to hold and distribute under the individual’s direction.”
The Coalition of Care and Support Providers in Scotland and other organisations that are involved in social care have recommended that that should be in the bill. That is important. It is in the Government’s policy memorandum, so having it in the bill would not in any way restrict the process. However, it would augment and enforce the fact that the third sector providers could, with the agreement of the supported person, act in that way.
I realise that that approach is not banned at the moment and that it can be implemented by regulation, but I believe that it should be in the bill, so I will press amendment 21.
Amendment 22 deals with the difference between the options, which will be transparent if we agree to the Government’s amendments, and the fact that a local authority should not automatically assume that option 1 or 2 would cost less than option 3.
The committee received some evidence that, where direct payments were made, they were already less than the payments under options 3 and 4. Amendment 22 merely says that there should be no automatic assumption that that would be the case. The importance of the word “automatic” cannot be overstressed, because there may be circumstances in which it is necessary and appropriate for the local authority to offer different options under the bill. Those options will be transparent under the Government’s amendments; under amendment 22, they will not automatically be different.
Under amendment 7A, which is linked to amendments 11A and 12A, the local authority will be required to provide in writing the reasons why there is a difference between the options.
I will illustrate a case in which that is a possibility. Let us take a day centre that is currently run by the local authority and which 15 people attend. With direct payments being offered, five people might opt out of that day centre provision. That would create considerable difficulties for the local authority’s ability to sustain that provision for the remaining 10. In other words, the unit cost might rise. However, it is important that, as part of the process, we drive efficiency in the system. That means that, if the unit cost has to rise, we should understand why it must rise and what the local authority has done to try to reduce the unit costs so that the majority of the funds can be transferred to those who are undertaking self-directed care.
My approach builds on the Government’s amendments. It ensures that the supported person and the individual who supports the person who seeks supported care, to whom we will come later, will see the difference in cost between the options clearly and, I hope, understand the local authority’s reasons for varying the cost, but there will be no automatic variation.
Amendments 21, 22 and 7A lend considerable additional clarity, and I will pursue all three.
I welcome amendments 2 and 7, which I think are necessary to ensure that all four options for self-directed support are clearly communicated to the person seeking to exercise them. It would have been remiss for that not to have been put on the face of the bill, so I am keen to support those amendments.
My concern about amendments 7A and 22, in the name of Richard Simpson, is that they hint at the resource allocation that may be formulated following the care assessment, whereas the bill does not touch on that. I see what he is trying to achieve, but I would like to think that any inappropriate assessments would be picked up by the care inspectorate during its routine inspection of the local authority. For that reason, I will not support amendments 7A or 22.
I will vote against amendment 21 just now, but I reinforce Richard Simpson’s view that third-party providers in the voluntary sector should be seen as a key player—it should not just be the local authority. However, I will wait to see what appears in the guidance on that.
Do other members want to speak to the amendments?
Convener, on a question of process, will I get the opportunity to respond to points raised against my amendments?
No. I call on the minister to wind up.
I understand the objective behind Richard Simpson’s amendments, but I think that the Government amendments bring a greater transparency to the process, which will be extremely valuable in helping people to get greater clarity on the decisions made by local authorities.
I remain of the view that the wider issues on which Richard Simpson has raised concerns are better dealt with through the guidance that will accompany the legislation. I have stated very clearly that, in the accompanying guidance, we will give full consideration to the issues around commissioning, procurement and finance that can lead to discrepancies in the allocation of resources. Alongside that, we will make it very clear in the regulations and in the guidance that a third party can hold an individual budget on someone’s behalf. I believe that guidance provides us with greater flexibility in dealing with these issues, and I have given a clear commitment to the committee that we will give consideration to these matters as part of that guidance.
Amendment 2 agreed to.
Amendment 3 moved—[Michael Matheson]—and agreed to.
Amendment 21 moved—[Dr Simpson].
The question is, that amendment 21 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 21 disagreed to.
Amendments 4 to 6 moved—[Michael Matheson]—and agreed to.
Amendment 22 moved—[Dr Simpson].
11:30
The question is, that amendment 22 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 22 disagreed to.
Section 3, as amended, agreed to.
Section 4—Choice of options: adults
Amendment 7 moved—[Michael Matheson].
Amendment 7A moved—[Dr Simpson].
The question is, that amendment 7A be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 7A disagreed to.
Amendment 7 agreed to.
Section 4, as amended, agreed to.
Section 5—Choice of options under section 4: assistance
Amendment 23, in the name of Dr Richard Simpson, is grouped with amendments 8, 24, 9, 10, 27, 35, 14, 36, 15, 16 and 39.
Amendment 23, and the linked amendments 27, 35 and 39, have been sent to us by the Law Society of Scotland. It believes that the reference to adults with physical and mental disabilities creates an ambiguous and incorrect notion that section 5 should be applied where the supported person does not have capacity
“because of mental disorder or difficulties in communicating due to physical disability”.
The removal of those terms broadens the definition, and means that local authorities must provide assistance to anyone who requires it.
The consequence of that is seen in amendments 27, 35 and 39, which either repeat amendment 23’s requirements or remove the need for the mental health definition from the bill because, once the initial terms of mental and physical disability are removed, there is no need for such a definition.
Amendment 24 refers to the Adults with Incapacity (Scotland) Act 2000. I am sorry that it is written in the form of a double negative—it refers to the supported person being “not incapable”. It must be written that way because the act refers to adults with incapacity, not adults with capacity. That is a hangover from the legal work carried out by the Health and Community Care Committee in the first session, which I was involved in, along with the minister.
The Law Society is concerned that the wording of section 5(2) does not place any obligation on the authority to ensure that the supported person has the capability and the capacity to make a decision. The amendment will place that obligation on the authority and it will ensure a safeguard against the appointment of assistance to a supported person who lacks capacity.
The Law Society is concerned that, without amendment 24, there will be a risk that the procedure under the bill may be used for people who lack capacity. Therefore, the effect of the amendment will be to add conditions that must be satisfied to determine whether assistance should be provided to the supported person.
Consequential to that, amendment 36 deals with the question of competence and simply says that if the local authority is satisfied that the supported person is not incapable, it can go ahead with the assessment. It amends a later section, which deals with assessment.
Amendments 9, 10 and 14 to 16, in the name of the minister, are helpful amendments and I welcome them.
I move amendment 23.
It feels like only yesterday that we were dealing with the Adults with Incapacity (Scotland) Bill.
I will respond to Richard Simpson’s amendments and also speak to amendments 8 to 10 and 14 to 16, which are in my name. Amendments 23 and 35 seek to remove the phrase
“because of mental disorder or difficulties in communicating due to physical disability”
from sections 5 and 15. That will widen the effect of sections 5 and 15 to allow assistance to be provided to anyone who might need it. However, that would contradict the policy intention of sections 5 and 15, which is to underpin specific types of assistance, particularly that which might be required by people who have a mental disorder or difficulty in communicating. Sections 5 and 15 are not intended to provide general assistance to all social care clients. I recommend that that focus be retained in sections 5 and 15.
Amendments 24 and 36 seek to add a detailed requisite that the local authority must be satisfied that the supported person has capacity to agree that another person should be involved in assisting them in making decisions about relevant matters and in choosing one of the options prior to identifying someone who could assist them. Although I agree with Richard Simpson’s broad aim of underpinning positive social work practice, we should bear in mind that sections 5 and 15 do not provide for a formal appointment process under which individuals might make decisions on another person’s behalf. However, I give Richard Simpson the commitment to use the powers that are provided elsewhere in the bill to provide clear and unambiguous statutory guidance to local authorities on the matter. I fully intend for that guidance to cover those important good practice principles.
Amendments 8 to 10 and 14 to 16 were lodged partly as a response to a concern that was raised by the Law Society, the Mental Welfare Commission, and the Office of the Public Guardian in their evidence to the committee. The committee’s stage 1 report asked the Government to consider their concerns, and it is in response to the committee’s request that I have lodged the amendments in the group.
Amendments 9 and 15 have exactly the same purpose and effect. Amendment 9 relates to assistance in making the choice in relation to section 3. Amendment 15 relates to assistance to complete the initial assessment of social care needs. The amendments will ensure that local authorities must have the supported person’s consent to the individual who may have been identified to assist them in making or communicating their decisions. That reinforces the position that assistance from other individuals under sections 5 and 15 will only be in relation to supported people who have capacity. The supported person must agree to any assistance in making decisions being provided by another person or persons. At the point of consent, the supported person would demonstrate that he or she has capacity. I hope that that deals with the concerns that Richard Simpson has sought to address.
The assistance provisions cannot be used where there is an appointed proxy under the Adults with Incapacity (Scotland) Act 2000. The bill currently defines such a proxy as a guardian or a welfare attorney, and amendments 8, 10, 14 and 16 have been lodged following discussions with stakeholders who queried why the list of legal proxies was restricted to welfare attorneys and did not include continuing attorneys. I agree that it is necessary to add an explicit reference to such attorneys and amendments 8, 10, 14 and 16 seek to rectify the omission by adding the term “continuing attorney” to the list of individuals whose presence would disapply the assistance provisions.
In conclusion, I urge the committee to support amendments 8 to 10 and 14 to 16 and ask Richard Simpson to withdraw amendment 23 and not to move the other amendments in the group. If he is minded to press amendment 23 and move the other amendments, I urge the committee to reject them.
I welcome amendments 8, 10, 14 and 16 and the addition of continuing attorneys to the list of proxies, which is a logical and welcome step. Moreover, amendments 9 and 15, which seek to ensure the agreement of the supported person, are pretty important, and I welcome the fact that the Government has listened to stakeholders on this matter.
That said, although it might at first sight be clear that a supported person who does not have capacity should not be invited to decide whether they need assistance, that is in fact not clear in the bill and should be made clear. Putting it into statutory guidance would be a welcome move and, if amendment 24 is not agreed to, we will look at the suggestion to see whether it would be acceptable to those who support the amendment. At the moment, however, I will press amendment 23, because I think that we need to make this issue clear in the bill by deleting the references to “mental disorder” and “physical disability” and thereby broadening the definition. The local authority should, in initiating an assessment, reach a view as to whether the supported person requires additional assistance to make informed decisions. As that is not the same as whether they have capacity—after all, the person in question might have communication difficulties or might because of other vulnerabilities want to involve another person—I believe it entirely appropriate to broaden the term as suggested by the Law Society.
I will therefore press amendment 23 and move the other amendments.
The question is, that amendment 23 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 23 disagreed to.
Amendment 8 moved—[Michael Matheson]—and agreed to.
Amendment 24 moved—[Dr Simpson].
The question is, that amendment 24 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 24 disagreed to.
11:45
Amendment 25, in the name of Richard Simpson, is grouped with amendments 26, 37 and 38.
Amendment 25 is another amendment that we received from the Law Society of Scotland, which is concerned that the bill does not provide the necessary safeguards or place an obligation on local authorities to protect against undue influence being exerted over an assisted person. The amendment would require that the authority take reasonable steps to ensure that any person who is appointed to assist someone is suitable, in accordance with the new subsection proposed by amendment 26.
We have had cases in which relatives have acted in a manner that was substantially overrestrictive on individuals who have capacity. I am not talking about people who may, through learning disability, have incapacity, as they would be treated and protected differently. The amendment provides a protection whereby the local authority must ensure that the individual does not exert undue influence, overly restrict the person or use the funds in an inappropriate way.
Amendment 26 is a consequential amendment that sets out how a suitable person would be identified. It requires the local authority to have regard to the variety of conditions that are set out in the amendment and to be satisfied that they have been met.
Amendments 37 and 38 simply repeat the contents of amendments 25 and 26.
I move amendment 25.
Section 5(4) requires the authority to
“take reasonable steps ... to identify persons having an interest in the care of the supported person”.
Richard Simpson’s amendments 25 and 37 would change the wording to a person
“who the authority considers ... suitable”
and his amendments 26 and 38 provide various tests against which the person’s suitability should be measured.
Although I agree with the broad aim that Richard Simpson has in mind—namely, to underpin positive social work practice—we should bear it in mind that sections 5 and 15 do not provide a formal appointment process where individuals may make decisions on another person’s behalf. However, it would be appropriate—and again I give Richard Simpson a commitment on this—to use powers that are provided elsewhere in the bill to provide clear and unambiguous statutory guidance to local authorities on the matter. I fully intend the guidance to cover these important good practice principles.
I therefore urge Richard Simpson to withdraw amendment 25 and not to move the other amendments in the group. If he is not minded to do so, I urge the committee to reject amendments 25, 26, 37 and 38.
Guidance is guidance. We have had cases in Scotland in which relatives have had undue influence over vulnerable people. I believe that it is imperative that we have the provisions that I propose in the bill in order to ensure that the local authorities ensure that the situation does not arise. I am fearful that we might have future scandals if that is not the case. I therefore strongly urge the committee to support the amendments in my name. I press amendment 25.
The question is, that amendment 25 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 25 disagreed to.
Amendment 9 moved—[Michael Matheson]—and agreed to.
Amendment 26 not moved.
Amendment 10 moved—[Michael Matheson]—and agreed to.
Amendment 27 moved—[Dr Simpson].
The question is, that amendment 27 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 27 disagreed to.
Section 5, as amended, agreed to.
Section 6—Choice of options: adult carers
Amendment 11 moved—[Michael Matheson].
Amendment 11A not moved.
Amendment 11 agreed to.
Section 6, as amended, agreed to.
Section 7—Choice of options: children and family members
Amendment 12 moved—[Michael Matheson].
Amendment 12A not moved.
Amendment 12 agreed to.
Amendment 28, in the name of Mark McDonald, is grouped with amendment 29.
I will keep this pretty short and sweet. Amendments 28 and 29 follow on from a conversation that I had with Barnardo’s and relate to the United Nations Convention on the Rights of the Child, specifically article 12, which assumes that all children have the right to be heard, with no age limit applied and no definition of the age of maturity. I believe that the small textual change that amendment 28 would make would reinforce that principle within the bill. I have lodged amendment 29 as amendment 28 will have the knock-on consequence of rendering section 7(6) superfluous.
I move amendment 28.
I support Mark McDonald’s amendment 28 on a child’s involvement in decisions about self-directed support options when they directly affect a child. The Scottish ministers believe that it is right that all children should have the opportunity to express their views on how they lead their lives. The provisions should encourage professionals to give weight to the views of younger children where there is a considered need for an appropriate course of action. I believe that that is very much in keeping with the bill’s principles and that all people should be involved in decisions about their support. I therefore urge the committee to support amendments 28 and 29.
Amendment 28 agreed to.
Amendment 29 moved—[Mark McDonald]—and agreed to.
Section 7, as amended, agreed to.
Section 8—Provision of information about self-directed support
Amendment 30, in the name of Alison McInnes, is grouped with amendment 31.
Good morning, convener. I hope that amendments 30 and 31 are uncontentious. My intention is to make it clear that the provision of information should be tailored to the individual’s needs. If there is truly to be choice, it will not be enough simply to hand out a leaflet that explains what people’s options are. The bill’s intentions are good, but I hope that the amendments will strengthen it by ensuring that local authorities take a person-centred approach to the provisions.
With regard to amendment 31, there is no doubt that, in many cases, people will benefit from having more control over their care or the care that is provided to their children. Although I hope that amendment 31 would assist everyone, I am thinking in particular of parents who are caring for a child with complex needs in a family. As we all know, those parents are involved in care 24/7, and they are often exhausted by the demands of care. Self-directed support might well provide a more responsive care package for them, but the requirements to set up recording mechanisms and budgets and to secure the services themselves would be a burden too far for some of those parents. Amendment 31 would ensure that local authorities provided the proper support to people to allow them to have a choice. I am grateful to Aberlour for working with me on drafting the amendment.
I move amendment 30.
The bill aims to ensure that people have informed choices about self-directed support and understand not only what the four options are, but which of those options will best meet their needs.
Amendment 30, in the name of Alison McInnes, would make it explicit in the text of the bill that the explanation of the options for self-directed support must relate to each person’s circumstances. Section 8(2)(a) already requires the local authority to explain the nature and the effect of each option. The nature and effect, and what each option means in practice, will vary from person to person. I consider that the point is already covered and that that level of detail is appropriate to the statutory guidance that will accompany the bill.
Access to practical information and assistance is a significant element in shaping a successful support package. Amendment 31, in the name of Alison McInnes, would place a specific example of a person who can provide a particular type of assistance in the text of the bill. Section 8(2)(c) already requires the local authority to provide a supported person with information about other organisations that can provide information and assistance, and in particular information about managing support. That is a broad provision, and I consider that such information about managing support would include advice about structuring and commissioning a support package.
In addition, section 8(2)(b) requires the local authority to give the supported person information about how to manage their support. Again, that is a broad provision that will cover all aspects of advice about managing support, including those that are specifically listed in amendment 31. Those provisions will be underpinned by statutory guidance that will provide further detail about the level of support and advice that a person should expect to receive.
Amendments 30 and 31 are therefore not necessary, and their sentiments are best covered in the statutory guidance that will accompany the bill. I do not support amendments 30 and 31, and I ask Alison McInnes not to press amendment 30 and not to move amendment 31.
I ask Alison McInnes to wind up and press or withdraw amendment 30.
I hear what the minister says, but to allow for truly informed choice I would like those assurances to be in the bill. That will ensure that local authorities have no wriggle room in interpreting how they implement the regulations. I press amendment 30.
The question is, that amendment 30 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 30 disagreed to.
Amendment 31 moved—[Alison McInnes].
The question is, that amendment 31 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 31 disagreed to.
Section 8 agreed to.
After section 8
12:00
Amendment 32 is in a group on its own.
The purpose of amendment 32 is to include provisions for independent advocacy and, specifically, to enshrine in the bill a right of access to independent advocacy.
I should first be clear about what independent advocacy is and is not. During the stage 1 debate on the bill, the minister said that impartial information and advice are crucial. In direct response to that, the Scottish Independent Advocacy Alliance said in its briefing of 17 October:
“While the Bill contains duties on councils to signpost people to sources of impartial advice, this would by its nature not include advocacy. Independent advocacy should never be impartial; the point of independent advocacy is that it is there to stand firmly on the side of the individual, listening to them and supporting them to make their own decisions and choices. While an advocacy organisation will support an individual to gather all relevant information advocacy will not offer advice on choices.”
The reasons why that is important in the context of the bill were well explained by Pam Duncan in evidence to the committee, when she said that
“the provisions in the bill should be as strong as those in the Mental Health (Care and Treatment) (Scotland) Act 2003 that give a right to independent advocacy. That is our view not just because the default position is choice, and, therefore, people must have support in order to make that choice, but because of the intricate situations that disabled people and other care service users experience. It is important that we make the bill strong on those aspects.”—[Official Report, Health and Sport Committee, 22 May 2012; c 2329.]
That is not likely to be required by everyone making use of the provisions for self-directed support outlined in the bill. I would go further and say that it would not be necessary, desirable or—to refer to the evidence that we heard—proportionate for everyone. To be clear, the purpose of amendment 32 is not to create compulsory advocacy; rather, it is simply to ensure that there is a guarantee of an opportunity if it is required by those outlined in subsection (1) of amendment 32.
I am sure that no one around the table, including the minister, disputes that advocacy has a crucial role to play in the increasing take-up of self-directed support. The question is only whether we acknowledge that a right to it is more likely to ensure that all those who need it can get it, regardless of whether advocacy services are well supported in all areas of Scotland in future. Some local authorities that have developed self-directed support have already placed a strong emphasis on advocacy, particularly when it comes to needs assessments, but we know from evidence that others have not.
I hope that members will support amendment 32. If the Scottish Government is not minded to do so, I hope that the minister will indicate whether he would be willing to have further discussion about alternative wording that might satisfy any concerns that the Government has and address the concerns that I and, I think, many others raised at stage 1.
I move amendment 32.
I understand the intention behind amendment 32. The difficulty that I highlight is that it appears to set in train a process that may at the end be unnecessary in so far as it requires the local authority to secure the availability of independent advocacy services before determining whether advocacy services are already operating on the individual’s behalf or whether the individual wishes to make use of independent advocacy services. Subsection 2(b) of the amendment is about taking appropriate steps to ensure that the individual has the opportunity to make use of the services. It may be that they do not wish to use that opportunity or that that opportunity is not necessary, but the local authority will still have had to go through the process of securing the potential independent advocacy service. There is a little bit of cart before horse in the wording of the amendment. On that basis, I do not think that I can support it.
I listened with interest to Drew Smith’s comments. I have some sympathy with what Mark McDonald said in terms of the wording of the amendment, but I also have strong sympathy with the distinction that Drew Smith draws between advocacy, and advice and information, and I think that some of his points were well made. I am not minded to support the amendment, but I am keen to hear what the minister says. I remain open minded as to how we deal with the issue.
Some good points have been made by all who have spoken. My concern touches on what Mark McDonald said. We have only a finite amount of money and I am worried about putting in place bureaucracy for something that we do not need. People can access a service at the present time. Implicit in this amendment seems to be a requirement to provide the service even though the majority of people will not go and get it.
At the moment, there is capacity in the system to look after those who need help. I do not think that it makes any sense to build in additional bureaucracy.
Many of the stakeholders from whom we have heard during the passage of the bill have made the case for the need for a right to independent advocacy, if required, and for that to be in the bill. People such as Pam Duncan made extremely good cases in that regard. In general, there is a good case for what is suggested. I am therefore inclined to support the amendment. I await the minister’s comments with interest.
I, too, await the minister’s comments with interest. Independent advocacy is a critical part of the whole structure. In answer to Gil Paterson’s point, the local authority should procure the service on the basis of individual cases and there should not be a generalised setting up of an independent advocacy service. That is perfectly possible. As Drew Smith said, only the cases of those who wish to avail themselves of the service would involve a cost to the local authority. It is imperative that no one should be prevented from undertaking what is proposed in the bill—which the Government is also keen on—because they do not have independent advocacy in order to ensure that their assessment and the package that they are offered are appropriate for them.
I am clear that independent advocacy services have a vital role to play in the delivery of the bill and that independent advocacy plays a vital role in helping those who need support to express their views, but I am not convinced that a general right to advocacy should be provided in the bill.
As I said at stage 1, people should have access to a range of support services, but not everyone will want or require an independent advocate in every instance. That view was shared by this committee in its stage 1 report.
It would be inappropriate for the bill to privilege one type of support when many people will choose to access support from other sources, such as carers organisations and user-led support organisations.
It is worth highlighting that a large group of people will have a right to advocacy as part of their social care assessment under the Mental Health (Care and Treatment) (Scotland) Act 2003, which provides a right to advocacy for every person—adult and child—with a mental disorder, as defined under section 238 of the act, which includes people with learning disabilities and mental ill health.
It should reassure the committee to know that the statutory and best-practice guidance that will accompany the bill will advise social work professionals to consider whether advocacy is required each time that they have a discussion with or assess an individual.
I would be happy to have further discussions with Drew Smith on the matter prior to stage 3. However, I ask Drew Smith to withdraw amendment 32. If the amendment is pressed to a vote, I ask the committee to reject it.
I ask Drew Smith to wind up and say whether he will press or withdraw amendment 32.
I spoke at some length when moving amendment 32, so I hope that I will now be a bit quicker.
To respond to Mark McDonald’s and Gil Paterson’s points, it is quite clear that what we are doing is providing an opportunity, not a system whereby everyone would have to have an advocacy service or an advocate appointed in order for them to demonstrate that they did not need one. That would not be a sensible way to proceed and that is not what amendment 32 proposes.
I am grateful for others’ comments. We took quite significant evidence on this issue at stage 1 and there has been considerable debate about it. I think that we are all clear, minister, that not everyone requires advocacy, but advocacy is different from some of the other kinds of support that you mentioned. To my mind, the bill is all about choice. I said at stage 1 that in order for us to achieve what the bill intends, the choices that people make must be meaningful. For that to be the case, people’s voices need to be heard, which is a separate issue from that of the other support that individuals might seek.
An independent advocate has the crucial role of ensuring that people’s voices are heard. By not including in the bill a right to independent advocacy, we run the risk of creating a situation whereby a person in any local authority in Scotland who required an independent advocate in order to exercise meaningfully the choice that the Parliament seeks to give them would be unable to access that advocate because we had failed to provide the right to do so.
In light of the minister’s comments that he is willing to have some further discussion about the issue before stage 3, however, I am happy to withdraw amendment 32.
Amendment 32, by agreement, withdrawn.
Sections 9 and 10 agreed to.
Section 11—Further choice of options on material change of circumstances
Amendment 33, in the name of Alison McInnes, is in a group on its own.
I hope that amendment 33 is self-explanatory. It is not made clear in the bill that opting for self-directed support is a reversible choice. For it to be a proper choice, people must be able to say “I’ve tried this, but it’s not working for me.” So, it should not be about only a change of circumstances, but about what is best for the person. I am concerned that, as it stands, the reference in section 11(1)(c) to “material change” could be interpreted very narrowly. Amendment 33 would provide greater clarity.
I move amendment 33.
One aspect of the need for the bill is that assessments in some parts of the system have not been good. However, it is implicit in what the Government is doing through the bill that assessments will be done regularly, and that should be picked up. The suggestion that the bill will in some way fix in place a person’s choice is patently wrong, because people will be able to make their choice within a rolling programme. I cannot therefore support amendment 33. I agree with what Alison McInnes said about the issue, but I think that it is implicit in what the bill is trying to do that choices will be readily available and that councils will engage with individuals, monitor what happens to them and make any required changes, which will be based on what the individual thinks is good for them.
Section 11(2) states:
“The authority must offer the person another opportunity to choose one of the options”.
Section 11 is about further choice and material change of circumstances. I am therefore not sure that Alison McInnes’s amendment 33 would add further appropriate layers. However, before I come to a conclusion on the matter, I want to hear what the minister has to say on it.
The bill already provides significant opportunity for a person to change options if necessary. Section 11 will require local authorities to offer individuals the opportunity to change their choice of options when they become aware of a material change in circumstances.
When a person decides that the selected option is not appropriate to their circumstances, they will have to make the local authority aware of the change. In that situation, the bill already provides for the opportunity for change. Section 11(3) provides that the authority and the person may agree that the opportunity to choose another option can be taken up, even if there has not been a material change of circumstances.
I do not believe that it would be appropriate to oblige the authority to offer another choice for reasons that were determined solely by the supported person. When there is not a material change of circumstances, the correct balance is that the authority and the supported person agree to a review.
Nevertheless, we need to be clear that when a person’s support does not meet the outcomes that were agreed in their support plan, the support must be reviewed and other options must be considered. The statutory guidance that will accompany the bill will make that clear.
Therefore, I invite Alison McInnes to withdraw amendment 33.
12:15
I appreciate Gil Paterson’s comments. He said that people’s ability to change their choice
“is implicit in ... the bill”.
It is, indeed. What I am trying to do is to make it absolutely explicit.
The minister mentioned that a “material change” would be the trigger for reconsideration of a case. I am trying to have it defined that one such material change would be the individual’s saying that their chosen option just does not work for them, even though they had thought that it would. The local authority might well say that their circumstances have not really changed, so I suppose that I am proposing a belt-and-braces approach.
I will press amendment 33.
The question is, that amendment 33 be agreed to. Are we agreed?
Members: No.
There will be a division.
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Torrance, David (Kirkcaldy) (SNP)
Abstentions
Milne, Nanette (North East Scotland) (Con)
The result of the division is: For 0, Against 8, Abstentions 1.
Amendment 33 disagreed to.
Might I excuse myself and return to the Justice Committee?
That is fine—you are spared.
Section 11 agreed to.
Section 12—Power to modify section 3
Amendment 13, in the name of the minister, is grouped with amendments 17, 18 and 19.
The amendments in the group arise from discussions with and consideration of the recommendations by the Subordinate Legislation Committee. Before I explain their purpose and effect, I again express my thanks to that committee for the role that it has played in scrutinising the subordinate legislation powers in the bill.
Amendment 17 will make consultation a formal precondition before draft regulations that are made under section 12 or section 21 can be laid before Parliament. That requirement will be in addition to use of affirmative procedure, which already applies to such regulations that are to be made under the bill. I hasten to add that the Scottish Government would have every intention of consulting before modifying any of the options or disapplying the local authority duty. However, I agree with the Subordinate Legislation Committee that, in this case, it is expedient to make that a statutory obligation.
Amendment 13 applies to the power to modify options that is contained in section 12. It seeks to add sections 13(2)(b) and 21(1A) to the list of provisions that may be amended under section 12. It is a necessary technical amendment, as both those provisions may require consequential amendment if the power in section 12 is used.
Last, I turn to amendments 18 and 19, which relate to section 21 of the bill, which provides a power to disapply the duty to offer self-directed support options in specific circumstances. The purpose behind the proposed power is primarily associated with options 1 and 2, where there are likely to be specific circumstances in which choice over provision would simply not be appropriate. The intention is to remove choice in such circumstances, not to remove support. Amendments 18 and 19, therefore, clarify that if the section 21 power is used, the regulation “must”—rather than “may”—include provision to deem a person to have chosen option 3.
I move amendment 13.
If ministers are going to have the power to modify by regulation primary legislation, which appears to me to be the case under section 12(a), under which modification of section 3 might occur simply on the wish of the minister, it is vital that we have extensive consultation. I remain nervous about the section because I do not believe that we should be able to amend primary legislation in this way. Options 1 to 4 cover the bases of self-directed care and I cannot conceive of a situation in which those options might need to be modified. However, I am comfortable enough to support the Government’s amendments at this point in time, but I want to take further advice before stage 3 to determine whether section 12, as it is currently written, is appropriate.
Our amendments reflect the Subordinate Legislation Committee’s recommendation that we ensure that there will be full public consultation prior to any changes. Changes might be required in the future so that we can adapt to innovation in social work practice. During the past 15 to 20 years, social care provision has changed dramatically, so it is appropriate to have in the legislation provision, with the appropriate checks and balances, that will allow it to be modified to reflect innovation.
Amendment 13 agreed to.
Section 12, as amended, agreed to.
Section 13—Power to make further provision about direct payments
Amendment 34, in the name of Jackie Baillie, is grouped with amendments 43 and 17A.
Thank you, convener. I was going to wish you good morning, but we seem to have slipped into the afternoon.
I gather that amendment 34 has excited a degree of interest, and rightly so. Indeed, the committee spent some time considering the issue, which is about whether it is appropriate to register or regulate personal assistants. It is important to say at the outset that I accept that many disability organisations and disabled people do not want regulation. They prefer people not be viewed as being vulnerable or as needing protection. I understand all that. They would prefer that people be given the tools that will allow them to make the right choices. Again, I agree with that.
I also recognise that a disabled person might want the right to employ a personal assistant because that is the way for them to remain in control of much more flexible support. I accept that there is a view that the focus should be on training the disabled person to become a good employer and to recruit safely, rather than their having to rely on legislation.
Although I recognise and support those views, it is Parliament’s job to weigh up potential risks. I have received correspondence from parents that has caused me to stop and reflect a little more on the question, as I am asking the committee and the minister to do. Those parents were worried about the safety of their child. He is a vulnerable adult who lives independent of his parents, but he has complex needs. Naturally, his parents do not want him to be taken advantage of in any way or under any circumstances—I am sure that we all agree with that—but they feel that the reassurance of registration and regulation would be important for their peace of mind and their son’s wellbeing.
We need to recognise that there have been instances of abuse that have not been confined to residential homes and which have shocked us. People have absolutely abused their positions of trust, and the question for all of us is how we can guard against that. I do not believe that only the process of registering or regulating personal assistants will be a panacea, but it will require us to give much more serious thought to how we can achieve a balance between the needs of disabled people who rightly want their independence and want to decide how to employ their personal assistants, with the needs of more vulnerable people. It is incumbent on us to strike that balance.
I am struck by the fact that, when those who are responsible for regulation and registration appeared before the committee, there was a divided view on how best to proceed. That underlines the genuine quandary that the committee and the Government face. The Coalition of Care and Support Providers in Scotland argued for a basic level of accreditation and for people being the subject of protection of vulnerable groups checks. The Scottish Social Services Council argued for registration, minimum induction training and distinguishing complex care and care for particularly vulnerable service users so that that category could be regulated without unfairly limiting personal choice for everybody else.
I recognise that the minister and the committee do not want the overprofessionalistion of personal assistants. I share that view, but the committee considered that more could be done to reduce risk and thought that there is merit in the recommendations from the Scottish Social Services Council. Amendment 34 would not put that in the bill and does not suggest that that needs to be done now. To put things quite simply, it would give a power to ministers to make regulations at some point in the future. That does not mean that they have to do so, but that they could if they considered that to be necessary. On balance, that is an effective safety net for the future.
Amendment 43 is related to amendment 34. It seeks that the regulations be subject to affirmative procedure rather than to negative procedure. That reflects the importance of the issue and the need to engage in more discussion and scrutiny should such regulations come before Parliament. I recognise that the Subordinate Legislation Committee believes that use of the negative procedure in section 13, which deals with secondary legislation, is appropriate. However, we would be adding something quite substantial, which is why I have gone for affirmative procedure.
Amendment 17A is, of course, a technical amendment that reflects the minister’s consideration of the Subordinate Legislation Committee’s recommendation.
I move amendment 34.
I will be brief.
I associate myself with what Jackie Baillie has said about the desire of many people who will be affected by the bill for independent living, and recognise the sensitivities that the amendment raises. However, rather than our thinking that we have resolved the matter at stage 2, Jackie Baillie is probably right to highlight the fact that the effect of what is proposed would be to provide ministers with the power and the option to think about registration and regulation in the future, should that be deemed necessary. I do not think that the issue was resolved in the evidence that we heard; quite significant questions remain.
I hope that a future registration, regulation or other scheme would support people who are employed as personal assistants. In thinking through registration issues, we often open the door to training and other opportunities. We may not want to professionalise the workforce, but we have a responsibility in any labour situation to consider both sides and to ensure that people are properly supported, whether they are the procurer or provider of the service.
12:30
As Jackie Baillie has suggested, we tread a fine line here in seeking to regulate in respect of people who really do not want a fully qualified registered assistant. Nevertheless, Parliament needs to protect vulnerable people and, where we can and as far as possible, we want to prevent their being put in vulnerable positions and being abused. As a result, I agree with amendment 34—in particular, given that the measure will be set out in regulations and subject to affirmative procedure.
The committee has been finely balanced on the matter, and I do not think that I have reached the point of agreeing that the power that is set out in amendment 34 should be extended. I am slightly nervous that, with this kind of power, there might be an expectation from certain groups about its use and we are not yet clear about how it might be taken forward.
Members have also talked about professionalising the at-home workforce and personal assistants. We should be careful about how we use the word “professionalisation”; after all, some of those people are deeply professional and caring individuals. However, I want to associate myself with the comments that have been made about supporting care staff. I do not think that that needs to happen through regulation, but we certainly need to look at how we might provide more support in such situations.
I do not think that the points that I want to make have been covered yet.
I am anxious about the issue. On one hand, we are seeking to provide more opportunities for family members. A whole lot of things are going through my mind about that; indeed, I have already mentioned the issue.
Vulnerable people come in many guises. I do not want to play to the television, but I need only highlight the Jimmy Savile case. Who would ever have imagined that such things were happening in front of our eyes to 14-year-old children on television? As heavily involved as I am in these matters, I simply do not think that you can regulate for them or put anything in place that covers all the issues.
I am also worried that in regulating for everyone we might in some way stigmatise the unregulated personal assistants who are already doing a good job. I am caught between two stools: I want to protect not only vulnerable people but ordinary family members who might already be doing the work of personal assistants very well and in a very professional way. I worry about putting in place something that might professionalise part of what we are seeking to provide. I want to hear what the minister has to say.
Amendment 34 seeks to introduce a regulation-making power to enable ministers to establish a scheme to regulate the quality of support that is provided by personal assistants who are employed through direct payments. One of the key strengths of the self-directed support mechanism is the flexibility that it affords individuals, and a key factor of that flexibility is the workforce’s response to it.
It is also worth keeping it in mind that it is not compulsory for anyone to choose a direct payment and that there are three other options they can choose. At stage 1, witnesses from groups representing disabled people, including the independent living in Scotland project and the Scottish Personal Assistant Employers Network, explained in personal terms the vital importance of people being able to choose their own employees and taking responsibility for their training. Indeed, the committee will recall how Pam Duncan from the independent living in Scotland project explained that what is important to her is not that her PA has been on a food hygiene course but that they know how to blow-dry and straighten her hair.
I am not convinced of the need for a regulation-making power that would, if it was used, limit flexibility, especially given that there are already proportionate safeguards in place to protect people who employ or receive support from a personal assistant.
The protecting vulnerable groups scheme strikes a balance between proportionate protection and robust regulation. A personal employer who chooses to employ a PA who is a member of the PVG scheme is entitled to see that person’s scheme membership statement to confirm that they are not barred from doing regulated work with adults or children.
Social workers have significant adult protection duties, including a responsibility to ensure that the personal employer understands the importance of PVG scheme membership, the rules on seeking and sharing information and the risks of employing an unsuitable individual.
Social workers also have a critical role in ensuring that employers of a PA fulfil their responsibilities in training their PAs in the skills that are necessary to meet the needs of the supported person. In complying with their duty of care, social workers must use their professional judgment when they sign off a direct payment package that involves a PA. If they do not think that the PA can provide the services that are necessary to meet the assessed needs of the supported person in a safe way, they must not agree to that support package.
As I mentioned in my response to the Health and Sport Committee’s stage 1 report, Scottish Government officials are working closely with their partners, including the SSSC, to improve the training and awareness of PAs through the SDS workforce action plan. The Scottish Personal Assistant Employers Network and a number of other local organisations are already supporting employers in recruitment and training.
The Scottish Government is supporting the self-directed support in Scotland initiative, in partnership with the Association of Directors of Social Work, to map the range and variation in information and support that is provided on self-directed support throughout Scotland. The information from that exercise will inform further activity to ensure that there is comprehensive national advice on PA employment, including information about SSSC codes of practice.
In striking a balance between the need for proportionate safeguards and the right of individuals to make decisions, I do not think that it is necessary or desirable to include a regulation-making power in the bill that is to establish a scheme for registration of PAs. Amendments 43 and 17A would make all regulations under section 13 subject to affirmative procedure and to a statutory duty to consult. There is perhaps some merit in applying those requirements to regulations to establish a regulation scheme. However, I have said that I do not support amendment 34. Even if that amendment is successful, amendments 43 and 17A go too far in that they apply to the whole of section 13, even where it is used to make other regulations about direct payments.
The Subordinate Legislation Committee was satisfied with the procedures and the consultation powers for the existing provisions in the bill. I therefore do not support the amendments in group 10, so I invite Jackie Baillie to withdraw amendment 34 and not to move amendments 43 and 17A.
I intend to press amendment 34 and to move amendments 43 and 17A, and I will address the points that have been made. I say specifically to Bob Doris that legislation by the current Government and previous Governments is littered with powers that have not been used, so I do not think that the amendments would create an inappropriate expectation. The amendments are more about safeguarding those who are most vulnerable.
I say to the minister that I recognise and support the need for flexibility. We are trying not to have a scheme that covers absolutely everybody, but to have one that is proportionate. In his comments, the minister almost appeared to suggest that social workers themselves would assume a lot of those responsibilities. I do not think that that is reasonable, given their other duties, and in practical terms it is unlikely that that would be consistently applied.
In terms of subordinate legislation, I agree absolutely that section 13 is entirely appropriate for the current provisions in the bill. What I will be adding, if amendment 34 is agreed to, is a substantive new power for the minister to make regulations. I think that in those circumstances, even he would agree that affirmative procedure would be suitable.
This is all about striking a balance; I have tried at least to provide a proportionate response to some of the likely risks. Disabled people’s view that they should be able to make their own choices about personal assistants is absolutely legitimate but, equally, it is our responsibility to safeguard those who may be particularly vulnerable. I rest on the fact that the advice to the committee was from the Scottish Social Services Council—the Government’s own agency—and I urge the committee to listen very carefully to it.
The question is, that amendment 34 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Milne, Nanette (North East Scotland) (Con)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 4, Against 5, Abstentions 0.
Amendment 34 disagreed to.
Section 13 agreed to.
Section 14 agreed to.
Section 15—Assessments under section 12A of 1968 Act: assistance
Amendment 35 not moved.
Amendment 14 moved—[Michael Matheson]—and agreed to.
Amendments 36 and 37 not moved.
Amendment 15 moved—[Michael Matheson]—and agreed to.
Amendment 38 not moved.
Amendment 16 moved—[Michael Matheson]—and agreed to.
Amendment 39 not moved.
Section 15, as amended, agreed to.
I am conscious of the time so I am going to press on.
You are going to press on?
I think that Bob Doris thinks that we should press on.
We had previously said that 1 o’clock would be a good time to draw a line under things. The question is whether we can dispose of the next section by that time.
I do not want to constrain the debate in any way, but committee members have been here for four hours hearing evidence from the cabinet secretary and participating in this process. We have time for this business next week, as well. Members may want to press on, but I cannot guarantee that we will finish at 1 o’clock.
I think that we should hold off until next week, in that case.
I may have helpful comments for the two members who are moving the next set of amendments, which should help to move things on.
Ooh.
We are tempted. However, it is important for the committee to know that I cannot guarantee that we will not still be here at 1 o’clock. Some of us may have been here for five hours by that point. Shall we press on?
Yes, let us press on. We are tantalised by what the minister has said.
Section 16—Power to charge for services provided under section 2
12:45
Amendment 40, in the name of Jackie Baillie, is in a group on its own.
Having packed up my stuff, I will rapidly unpack it in anticipation that the minister is going to say something interesting. I am very pleased to move amendment 40, and I hope that the committee—and, indeed, the minister—might be minded to accept it.
Section 16 introduces the prospect of charging carers for the services that they receive. I think that we should have regard to the unanimous view expressed to MSPs in the submission from all the carers umbrella groups in Scotland, which said:
“The proposed Bill will give local authorities the power to charge carers for the services they are assessed as needing. We strongly oppose this. As key partners in care, and the largest contributors of care, it would be wholly unjust to charge carers for the cost of support which helps them to carry out their caring role.”
It might be helpful to recall that the Community Care and Health (Scotland) Act 2002—which I am sure the minister was involved with—established the principle that carers are in fact care providers and therefore require resources, in much the same way as health and social care workers do, to enable them to fulfil their caring role. In some instances, that might mean training or respite, but usually it is an incredibly small amount of money to give the carers the tools to do the job or some light relief to sustain them in their caring. There is a distinction, therefore, between the support provided to carers and the support provided to those who are cared for.
Charging carers is very much contradictory to the principle enshrined in the 2002 legislation, but it is also contradictory to the approach taken by this Parliament. The committee’s stage 1 report recognised the vital contribution of carers. The Scottish Government regularly cites how much carers save the state by making the contribution that they make. It is clear that we value carers, but we need to do more than simply say that. If we support carers, we help them to continue caring. That benefits us all, because it benefits the person cared for and it can help to prevent a crisis by enabling the carer to carry on doing what they are doing.
On that point, and in anticipation of the minister’s comments, I move amendment 40.
I note the arguments that Jackie Baillie has put forward in moving amendment 40.
Section 16 is largely a technical provision to provide consistency in the legislative powers on charging. Some argue that carers are providers in their own right and so charges should never be applied to any support that they might receive. I can recognise that there is merit in that view.
However, charging is a complex area—as I am sure Jackie Baillie is aware—and we need to be careful of any unintended consequence of the proposed amendment. We need to give detailed thought to the interaction between services being provided to the cared-for person and services provided to the carer. I would be happy to meet Jackie Baillie in the time permitted prior to stage 3 in order that we can discuss the possible consequences that I have outlined and consider whether further steps could be taken in this area.
In conclusion, I ask Jackie Baillie to withdraw amendment 40 and to meet with us prior to stage 3 so that we can discuss the issue further.
While I do not accept that the amendment would have any unintended consequences, in the spirit of co-operation I am happy to withdraw the amendment and I look forward to my discussions with the minister.
Amendment 40, by agreement, withdrawn.
That was, I hope, worth waiting for.
Section 16 agreed to.
Section 17—Promotion of options for self-directed support
We move to amendment 41.
Amendment 41 is a probing amendment that is based on representations from the many organisations that make up Health and Social Care Alliance Scotland. The alliance feels that it is important that information on accessing self-directed support is offered to people who may be entitled to it at the very earliest opportunity, so that they can make informed decisions about their future support needs. For hospital in-patients, that should be when they are discharged home from secondary healthcare services.
The alliance feels that if local authorities communicated with health services in their area at that time, to identify people who may require information about SDS after a spell in hospital, that would lay the groundwork for effective collaboration between health and social services in seeking positive health and social care outcomes for long-term conditions and for people with disabilities.
Clearly, such co-operation will be essential if the integration of health and social care is to be effective. I would be interested to hear the minister’s views on amendment 41 vis-à-vis the forthcoming legislation on the integration of health and social care before deciding whether to press or withdraw the amendment.
I move amendment 41.
My one concern is that, while it is appropriate to instigate a broad discussion, most services are now moving towards having an acute rehabilitative phase before an assessment of long-term needs is made, so I am not sure that the amendment is phrased in quite the way that I would want it to be.
The promotion of the availability of self-directed support under section 17 is broad and aims to ensure that local authorities actively publicise information so that people who may need support and people who work in local authorities are aware of the relevance of self-directed support to eligible people.
Amendment 41 proposes that local authorities must take reasonable steps to promote the availability of self-directed support options to—among others—people who are being discharged from hospital. I agree that, where a person who is discharged from hospital is eligible for support under the 1968 act, they should have the opportunity to choose one of the self-directed support options, and the bill already provides for that. Eligible people, including those who are discharged from hospital, must be given the options that are available under the bill. As I have stated in relation to other amendments, the statutory guidance will make that clear.
I do not think that amendment 41 would widen the provision that currently exists in the bill, and it would not be helpful to dilute the general nature of section 17 by picking out one type of group that is in need of support.
If amendment 41 is pressed to a vote, I ask that the committee rejects it.
Having heard the minister’s views, I will press amendment 41.
The question is, that amendment 41 be agreed to. Are we agreed?
Members: No.
There will be a division.
For
Milne, Nanette (North East Scotland) (Con)
Against
Doris, Bob (Glasgow) (SNP)
McDonald, Mark (North East Scotland) (SNP)
McLeod, Aileen (South Scotland) (SNP)
McNeil, Duncan (Greenock and Inverclyde) (Lab)
Paterson, Gil (Clydebank and Milngavie) (SNP)
Simpson, Dr Richard (Mid Scotland and Fife) (Lab)
Smith, Drew (Glasgow) (Lab)
Torrance, David (Kirkcaldy) (SNP)
The result of the division is: For 1, Against 8, Abstentions 0.
Amendment 41 disagreed to.
Amendment 42, in the name of Nanette Milne, is in a group on its own.
Amendment 42 is supported by the Health and Social Care Alliance Scotland and the Coalition of Care and Support Providers in Scotland. For individuals to have a real choice of social care services, there must be a range of high-quality personalised support services available to choose from. If nothing is done positively to promote and sustain the availability of a range of providers, it is likely that, in time, there will remain only a small number of providers, which are likely to be the large organisations that have sufficient economies of scale to survive.
Effectively, that would result in no real choice for service users. Amendment 42 seeks to put a duty on local authorities to take reasonable steps from time to time to ensure the continuing availability of a suitable range of providers. That would help to realise the bill’s ambitions by giving greater choice and control to users within a diverse marketplace of service providers.
I move amendment 42.
I have considerable sympathy with what Nanette Milne proposes in the amendment. If there is no choice, the options clearly cannot be real.
The only bit of the amendment with which I have some concern is that it places the local authority in the position of having to sustain the services. That is going a step too far. Therefore, although I will be interested to hear what the minister has to say, I am minded to abstain on the amendment and reconsider it before stage 3.
Amendment 42 places a duty on local authorities to consider whether any steps could reasonably be taken to promote and sustain a diverse market for social care.
I appreciate the vital importance of ensuring that people have a range of services from which to choose. The bill is about meeting people’s expectations that they will have choice and control over social care support that they receive. That choice and control are undermined if a person can choose between only a few providers in their area.
For the bill to have a meaningful impact, people must have choice within the market of service providers. However, I do not support Nanette Milne’s amendment. I have concerns about local authorities taking steps to sustain a diverse market. We would have to give full consideration to the possible consequences of that—in particular, how it would interact with existing procurement legislation.
However, I support the principle behind the remainder of Nanette Milne’s amendment. The way that local authorities procure and commission services affects everyone who receives social care services. Local commissioning strategies should be outcome focused and long term. They should set out how current provision needs to change to meet future needs.
The statutory guidance that will follow the bill will address in detail the role of local authorities in commissioning services and will help to ensure that the need to offer choice to people within the marketplace is embedded in local commissioning strategies.
In light of that, I would be happy to work with Nanette Milne with a view to drafting a workable amendment for stage 3 that would encourage local authorities to facilitate diversity. Therefore, I invite her to withdraw amendment 42.
In view of what the minister said, I am happy to withdraw the amendment. Clearly, he accepts the principle.
Amendment 42, by agreement, withdrawn.
Section 17 agreed to.
Sections 18 and 19 agreed to.
Section 20—Regulations: general
Amendment 43 not moved.
Amendment 17 moved—[Michael Matheson].
Amendment 17A not moved.
Amendment 17 agreed to.
Section 20, as amended, agreed to.
Section 21—Power to modify application of Act
Amendments 18 and 19 moved—[Michael Matheson]—and agreed to.
Section 21, as amended, agreed to.
Section 22—Interpretation
Amendment 20 moved—[Michael Matheson]—and agreed to.
Section 22, as amended, agreed to.
Sections 23 to 27 agreed to.
Long title agreed to.
That ends stage 2 consideration of the bill. I thank members for their participation and patience, which enabled such good progress.
Members should note that the bill will be reprinted as amended and will be available from tomorrow morning. Parliament has not yet determined when stage 3 will take place, but members can now lodge stage 3 amendments with the legislation team at any time. Members will be informed of the deadline for lodging amendments once it has been determined.
I thank the minister, his team and all the others who participated.
Meeting closed at 13:00.