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The Use of Section 13ZA.
Section 13ZA was a recent addition to the Social Work (Scotland) Act 1968. It was designed to end bed blocking in the NHS. Many older patients with dementia no longer had the capacity to consent or disagree with a decision to move into a care home in the community. As the guardianship process took so long to conclude, a large queue built up. 13ZA allowed social work and other interested professionals to act quickly in the person’s best interests. This was in line with the principle of “least invasive” intervention.
However there have been some recent concerns that Section 13za could be used to move people with learning disabilities from individual tenancies to cheaper care home placements. Many of the people who use support services are now over 65 after having been in long stay hospitals for over 20 years of life. But these placements are relatively expensive compared to care homes for older people.
Our 2011 report “Stuck” looked at the experience of people with learning disabilities who had been placed in Care Homes for Older People. There were many problems—lack of training, communication difficulties and significant age gaps between residents
As social workers are purchasers of care home placements as well as the operators of section 13za actions, there is a fear that unless basic safeguards are put into place then people may be unfairly moved.
Some of the problems that have emerged are over the practice of applying the legislation.
1. In section 13za cases decisions are taken by interested professionals e.g. social worker, nursing staff, occupational therapists. Advocates are not being treated as “interested professionals”. This means that while local authorities will pay “due regard” to the view of advocates and provide them with minutes of the decision making meetings, they cannot be part of the decision process itself.
2. Decision making often does not require the active agreement of all interested professionals. In Section 13za meetings the process can be a proposal and a general request for dissent. If no voices are raised then agreement is assumed. This can allow the “possible conflict of interest” between a social work manager as the purchaser of care services and the social worker as the arbiter of an individual’s care to remain unstated.
A third concern is that care plans are often not agreed in detail prior to a section 13za decision being agreed. The care plan can be as broad as a “moving to a care home” or moving “to the first available place out of a group of 4 care homes.” The legal duty is clear that there has to be agreement on the exact future care prior to considering the use of section 13za.
The Mental Welfare Commission is worried that there is a lack of sufficient safeguards. They found that local authorities are already falling well short in supervision of Welfare Guardianship under the Adults with Incapacity Act and that local authorities do not routinely monitor the use of 13ZA at present. There, in fact, is no one monitoring the use of 13ZA in Scotland.
The Mental Welfare Commission has just carried out a survey about what life was like for people with learning disabilities who need intensive support in the community. They found a lot of good things about it but there were a number of things that had to change because they were not good. You read the full report here. But down below we highlight the things that need to change.
They thought that some people needed better care and support, to help them live happy and independent lives, and make friends. All care and support staff should be well trained and managed. We found that some were not.
Services have to be the best they can be. Local authorities must keep looking at the care and support they give and make sure the service user’s rights are being protected.
Some people weren’t happy living together. It should be possible to move them to new homes with people they like, or let them have time away from the people they don’t get on well with.
A small number of support plans were out of date or did not meet all the needs of the service users. Some plans were quite good but more could be done to make them even better.
Service providers should help people to make friends. Some service providers were doing a good job of this, but most service users still said they didn’t have friends. Families should be involved more because they are very important in helping people to have social lives.
The Mental Welfare Commission has found that the number of individuals with learning disability subject to compulsion continues to increase. There has been a 4% rise since the last census in 2010. Since 2006, there has been an overall 30% increase.
This increase was evident in eight out of eleven NHS Board areas. The greatest increases were in Lanarkshire, Fife and Greater Glasgow and Clyde. There is a very wide variation in rates of compulsion between NHS Boards ranging from 2.9 to 13.4 per 100k which is only partly explained by the location of facilities for people with learning disabilities
Individuals with learning disability are likely to be subject to compulsion for longer than those without learning disability. This was particularly evident for men. They are also more likely to be detained in hospital rather than receiving community treatment. There is some evidence that guardianship is used as an alternative to community based compulsory treatment orders.
How will an independent Scotland afford higher levels of spending on disability-related benefits?
Scotland does spend proportionately more on disability-related benefits than the UK as a whole. But this needs to be set against other areas, such as housing benefit, where we spend less. Overall, welfare is more affordable in Scotland.
Scotland is the eighth wealthiest nation in the developed world in terms of GDP per head, which means we have the money we need to support our most vulnerable people. As an independent country, we will be able to choose how to spend our money, based on the needs and values of the Scottish people, not on choices made at Westminster. The current Scottish Government’s approach will continue to be that Scotland should prioritise spending on protecting vulnerable citizens over spending on policies that we do not agree with.
Will benefits change for disabled people?
We intend that people living in Scotland and in receipt of Disability Living Allowance will not be migrated to Personal Independence Payment.
We have also committed to abolishing the “bedroom tax”, saving 82,500 households in Scotland – including 63,500 households with disabilities and 15,500 households with children – an average of £50 per month.
In addition, this Government proposes to launch an urgent review of the conditionality and sanctions regime, and review the system of assessments for disability benefits. Then, as the new independent benefits system is developed, we will work with disabled people and others with an interest in how to improve things further.