Exploring the lack of legal challenges to legislation on self-directed support

The Centre for the Study of Human Rights Law, at the University of Strathclyde, working with Strathclyde Law School postgraduate students and student members of the University of Strathclyde Law Clinic,  partnered with In Control Scotland in order to undertake research pertaining to the implementation of self-directed support (SDS). In Control Scotland is a charity which promotes the development of self directed support(SDS)in Scotland. SDS gives individuals who are eligible for social care choice and control over the delivery of their care.

The research was motivated by an apparent lack of challenges relating to SDS since the Introduction of the Social Care(SDS) Scotland Act 2013.  The primary aim with this research is to identify  if, and if so where, there are barriers to complaints and remedies in SDS. For these purposes, the views of professionals such as law centre solicitors, advocacy workers were sought and 15 interviews were conducted.

The Law clinic’s Ifueko Joy Okungbowa was part of the research team and this report outlines their findings. 

Student researchers on a recent project examining the implementation of self-directed support share their findings, with a focus on legal representation and legal processes. The research team members were Law Clinic student Ifueko Joy Okungbowa, PhD student Charmaine Gittens, LLM Human Rights Law students Clare Gallagher, Saskia Harper, Sayali Walavalkar, and Jamie Walker. The research team was supervised by Mr Douglas Jack and Dr Elaine Webster from the Law School.

Challenging the implementation of the (Self-Directed Support) (Scotland) Act 2013?

Self-Directed Support (SDS) is governed by the Social Care (Self-Directed Support) (Scotland) Act 2013. It gives those who are eligible, and are in receipt of social care support, power and control over the delivery of their care. The aim of the Act is to place human rights at the heart of social care delivery and thus fulfil the requirements of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). As a result, the 2013 Act was hailed as transformative legislation.

However, several years on since the enactment of the legislation, there was a gap in knowledge regarding the implementation of the Act by local authorities. Were individuals making complaints about local authorities’ implementation of the legislation, and what was the outcome of those complaints? Were there barriers to making complaints and, if so, what were they? Why did it appear that there was an apparent lack of high profile legal challenges?

These are the questions that motivated a research project and report produced as a result of a year-long collaboration between the Centre for the Study of Human Rights Law (including postgraduate students from Strathclyde’s LLM in Human Rights Law), students from Strathclyde Law Clinic, and In Control Scotland, a third sector organisation working to improve the system of self-directed support. A series of interviews with advocacy and advice agency staff and law centre staff in the Scottish central belt, led to three key findings.

One was that, while  complaints processes were generally clear and not all participants saw complaints processes as unsatisfactory, there was an overwhelming view that these processes are problematic: inconsistent, unpredictable and dependent on various factors, including geographical location, and the individual receiving the complaint. North Lanarkshire stood out as having a relatively proactive approach, but this was not matched across the other local authorities examined in the research.

On the human rights dimensions, while the 2013 Act aimed to place human rights at its heart, the research indicated that there is still a lack of awareness and detailed knowledge of human rights and the relevant legislation that promotes and protects them, including, but not only,  the UNCRPD . Despite this, there was some suggestion that where complaints processes are framed around human rights, this could improve responses from local authorities. The research indicated that human rights law is generally under-utilised, yet it could be valuable to bring human rights to the forefront of implementation practices.

Limited availability of free legal advice

Finally, the research showed that if an individual wishes to escalate a complaint, beyond the local authority and complaints to the Ombudsman,  there is a demand for legal expertise, including within the free legal advice sector. This demand does not appear to be being met. The research suggested that the free legal advice sector in the central belt has limited experience of challenging decisions of local authorities under the 2013 Act.  Indeed, the research team’s efforts to recruit research participants from this sector had limited success, which was an early sign that there was a gap in this respect.

Both advocacy organisation and law centre staff participants commonly noted there are not enough solicitors with particular knowledge of the 2013 Act and its requirements. Interviewees further observed that some solicitors practicing in the field are reluctant to take on, or are prevented from taking on, SDS-related cases, due to  a lack of available legal aid funding. The lack of access to legal representation was further identified as one of the key barriers to a judicial review in relation to the failure to properly implement the 2013 Act. A further issue was that, even where legal advice was available, interviewees demonstrated that there is a lack of knowledge of these services among individuals claiming SDS.

The solicitors who did participate in the research painted a picture of limited access to legal representation. They identified low availability of specialised or knowledgeable solicitors, as well as issues related to the funding available for legal representation.

Human rights principles in practice and legal redress

Individuals, then, face barriers related to legal support and the legal process, which compound the other – structural, knowledge-related, and relational – barriers.

Clearly, improved implementation of SDS is the aim, as this will reduce the likelihood of recourse to complaints processes, and pursuing legal challenges must remain a last resort. As we know, of course, and as has very recently been shown in the case of Lennon v NHS Highland and Another in the Court of Session, even getting claims into the courtroom may not deliver the outcome that an individual is seeking. Nevertheless, we also know that formal legal channels for holding public authorities to account are an essential part of protecting individual rights (although human rights dimensions need to be recognised in the first place). Avenues of redress must remain accessible to all.

View the full report and a short briefing paper.