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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.
On Tuesday 26th November the Scottish Government published its White Paper on Scottish Independence called Scotland's Future - A Guide.
It looks at lots of issues across Scotland and many of these issues will benefit people with disabilities and their families even though they are not menitioned directly. For example many families with disabled children will benefit from the extra childcare on offer as both parents will be able to go out to work and the families will be better off.
The main policy statements that affect people with disabilities directly are
An end to the welfare reform changes. The paper suggests that by 2016, the government's move of people to Universal Credit and Personal Independence Payment will not have got very far and so it will be stopped. People will stay on existing benefits such as DLA until a new reformed welfare system is introduced. Presumably people who have been transferred to PIP will stay on that as well although the white paper is not clear on this.
The system of medical review of people with disabilities will be urgently reviewed.
There will be a continuing role for voluntary organisations in the development of civic Scotland.
Scotland is entering a year of debate and discussion over the future of its position within the United Kingdom. On September the 18th 2014, there will be a referendum on whether Scotland should be independent. In the Learning Disability Alliance Scotland, we want to make sure that people with learning disabilities have as much of a say in Scotland's referendum as other citizens.
We are currently running workshops for people with learning disabilities to look at the issues arising from the Independence Referendum. These are available to any parts of our member organisations. Please get in touch if you would like to book one of these for your group or organisation.
Care Charging has many complications in it. One of the latest is a back door method where councils try to bring mobility DLA into their financial calculations by expecting people who get self directed support to use their DLA for travel costs by reducing their individual budget.
Most councils know that mobility DLA cannot be included as income for charging. Their own policies state this and the national COSLA guidance reiterates this. However we know that a number of councils have been suggesting that where a person has mobility DLA they will expect them to use this to pay for taxis, buses or car costs to get to and from social work services. For example, in Glasgow, a number of families have been told that they will have to start getting their sons and daughters to their day services because the council will not provide travel to those with mobility DLA. According to them this is double funding.
However it is unlikely that many have ever looked at the legislation that covers mobility DLA. This states
A payment to or in respect of any person which is attributable to his entitlement to the mobility component, and the right to receive such a payment, shall (except in prescribed circumstances and for prescribed purposes) be disregarded in applying any enactment or instrument under which regard is to be had to a person’s means.
A social care assessment is carried out under the Social Work Scotland 1968 Act and as such mobility DLA should be completely disregarded from the assessment process. This means that local authorities cannot take into account whether a person does or does not get Mobility DLA. Those who do get it should be treated no different than those who don't. its time councils took their hands off people's Mobility DLA.