In Social Work and the Community, the White Paper which preceded the Social Work (Scotland) Act 1968, it was noted that ‘the powers of local authorities to provide advice and assistance, and to promote welfare are set out mainly’ in six pieces of legislation. This modest total meant that, even though written 20 odd years later, the first edition of Social Work and the Law in Scotland consisted of only 178 pages (though we were under strict instructions from the publisher about the word limit). The relative economy of the legislation is well summed up in the comments of the Secretary of State for Scotland introducing the Bill which became the 1968 Act. After a lengthy discussion of the provisions introducing the children’s hearings system, he went on to say:
‘The changes it will bring about in other fields of social work will be just as great, despite the fact that they are largely to be found in one subsection—Clause 12(1). It is this provision which will require each local authority to provide advice and assistance—or, in other words, social support—for the elderly, for those in need of help because of physical or mental handicap, and for those who need help in the home to look after themselves or another person in the household.’
Since then, legislation affecting social work practice has increased in volume, partly due to the Scottish Parliament, so that social care assessment itself now requires reference to at least six statutes, and the fourth edition of the text is around 300 pages longer than the first. Much of the legislation has brought about valuable improvements in the law, for example, the long overdue reform of the law relating to adults with incapacity and the introduction of community care (just taking off as the first edition was published). The growth in legislation has been accompanied by a significant growth in the volume of guidance about how it should be applied (as well as guidance not related to legislation, for example the National Guidance on Child Protection) and development of overarching policies, for example Getting it right for every child (GIRFEC).
However, this growth has not been, from the point of view of trying to provide a clear account of the law, without problems. Aside from the regular changes in law, the main problem is additional complexity. One area where this is clear is in the case of social care (leaving aside terminology – legislation still refers to ‘community care’ services). As mentioned above, social care assessments involve at least six Acts of Parliament, many of which have been extensively amended over time. It can be unclear how these are to fit together, not least, for example, because older legislation refers to the provision of services (and charging for them), a concept at odds with self-directed support. Faced with a similar position in England and Wales it was concluded that the statutory framework was ‘inadequate, incomprehensible and outdated.’ The response there was to pull together all the legislation into the Care Act 2014. On top of this there is a wide range of guidance on social care, it is not always clear whether all of this is intended to still be applicable and how it is all to be fitted together.
Other challenges and/or problems in this area are:
- The failure of universities to address most of the law relevant to social work practice in their undergraduate Law curriculum.
- Chosen terminology can also cause problems, for example, there are references in different legislation to a ‘child’s plan’ referring to different things.
- The delayed implementation of some provisions of the Children and Young Persons (Scotland) Act 2014. This delay follows on from the decision of the Supreme Court that some of the information sharing provisions were unacceptable and this has held up implementation of the provisions on the named person and the child’s plan (version two). Despite this, the Guidance on child protection is written as if these had been implemented. The Scottish Government has responded to the Supreme Court decision with an information sharing bill, the effect of which is simply to restate the current law when it would be more useful and require no further legislation for there to be clear guidance on the application of this law in practice (a project on which the Scottish Government has been engaged for well over a year). Additional complication arises from the fact that the existence of named persons, plans called a ‘child’s plan’ and sharing of information do not require the legislative support of the 2014 Act but are an integral part of GIRFEC.
- A failure to provide more clarity and consistency to assessment and provision of support, either to adults or children. Examples: a time scale for the completion of assessments and provision of services; statutory recognition across the board of eligibility criteria and central guidance on these to avoid variations between local authorities; an entitlement for children to the provision of services under the Children (Scotland) Act 1995 when they are assessed as being in need of these services.
- The compatibility of adults with incapacity legislation and mental health legislation with the UN Convention on the Rights of Persons with Disabilities (UNCRPD) and the European Convention on Human Rights (ECHR) (unaffected by any type of Brexit). For example, is guardianship law consistent with the (disputed) prohibition of substitute decision-making in the UNCRPD and is the law on deprivation of liberty of adults with incapacity consistent with the ECHR?
- The effectiveness of legislation and guidance in achieving change. The objective of promoting provision of support which was based on individual needs dates back (at least) to the introduction of community care in legislation in 1990 and the guidance accompanying it. It has been consistently noted since then that support often remains service driven. This led to support for ‘personalisation’ and further legislation, the Social Care (Self-directed Support)(Scotland) Act 2014, and guidance. The success of this remains to be seen.
Beyond these, meeting the aspiration of the 1968 Act (and subsequent legislation) seems to be made more challenging by austerity, reflected in judicial recognition of the restrictions imposed by this (and at least one local authority explicitly set out a spending reduction target to accompany personalisation). Finally, achievement of other (ambitious) objectives seems unachievable within both austerity and the confines of the powers of the local authority. One example is that achievement of some of the wellbeing indicators set out in GIRFEC seems, at least to the author, impossible without fundamental social and economic changes.
Tom Guthrie is an Emeritus Professor, previously Professor of Private Law at the University of Glasgow. His research interests are focused on the law relating to social work practice. Tom is the author of Social Work Law in Scotland.