Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance

Update of statutory guidance originally published in 2014 which retains some of what was in the original guidance but has some important differences.


Section 7: Budgeting, Charging, Commissioning and Procurement

This section brings together guidance on several issues related to the allocation and management of resources relating to SDS.

The 2013 Act requires authorities to make available four options, and to appropriately match need to available resources. Commissioning, procurement and finance processes should therefore enable practitioners to support individuals with the underpinning principles of choice, collaboration and flexibility.

As set out in the roles and responsibilities section, authorities must ensure that the right processes, capacities and systems are in place to support control, choice and flexibility, and that resource allocation is demonstrably fair, equitable and transparent (including the publishing of local eligibility criteria) and not disadvantaged by rural, remote or island living.

This includes ensuring social workers have the authority and are enabled to exercise practitioner autonomy to plan support and set personal budgets within agreed delegated parameters.

See also the SDS Framework of Standards (Standard 8: Worker Autonomy).

Funding, budgeting and flexibility: a new standard

The 2013 Act does not prescribe how authorities should organise their financial systems and processes in meeting their duties under the 2013 Act. However, a new addition to the SDS Framework of Standards (Standard 12: Access to Budgets and Flexibility of Spend)[105] has been developed by Social Work Scotland, COSLA and other sector stakeholders in 2022, and contains useful principles for authorities to follow.

The new standard is that people are involved in the development of their budget and have maximum flexibility to use this in the way that they choose to achieve agreed outcomes. The available funding should be allocated in a way that is transparent, fair, equitable and sufficient, across all communities and for all individuals.

In practice, local authorities and partnerships should have clear and equitable systems and processes in place to involve people in the development of their budget; and to calculate and provide people with sufficient levels of budget to enable them to meet agreed personal outcomes and lead full and meaningful lives.

Social workers should have the authority and be enabled to exercise professional autonomy to plan support and set personal budgets within agreed delegated parameters

Meeting this standard means that authorities must not impose blanket bans on funding certain kinds of goods (for example, holidays) and services (unless prohibited by the 2014 regulations).

Note that children's services social work operates under Getting it right for every child principles and work in a different way,[106] Children's Services assess need, develop the child's support plan and then consider how those needs are met, and on that basis consider whether, and to what extent, those needs can be met through SDS.

Financial monitoring

The authority should consider the relevant Chartered Institute of Public Finance and Accountancy (CIPFA) guidance on financial monitoring of direct payments. The CIPFA guidance provides advice on efficient, effective and proportionate monitoring arrangements, focused on outcomes and, crucially, with as light a touch as possible.

The authority should not pursue the supported person for receipts covering minimal transactions. The authority should allow a fair degree of flexibility to cope with the realities of life and there should always be adequate contingency funds. The monitoring arrangement should not be an end in itself. Its primary purpose should be to ensure that the overall resource is being used broadly in line with the personal outcomes within the support plan and the assessed needs as determined in the assessment.

The authority should be transparent with the supported person in relation to the monitoring arrangements for direct payments. For example it should discuss the information the person will be expected to provide and the way in which monitoring will be carried out. See welfare monitoring.

Pooling of budgets

A person-centred approach to assessment, support planning and review should recognise opportunities to pool expertise, share common approaches and combine resources at every stage in the supported person's pathway. The pooling of budgets should be the choice of, and controlled by, supported person and carers.

This requires a solution-focused approach and a determination on the part of senior leaders in health and social care to support the practitioners they manage to adopt joint assessment, planning and review processes and take full advantage of the broad powers afforded them in legislation.

Duty-bearers should work together to enable the pooling of budgets at the level of the individual (for example where families or groups may be able to increase their purchasing power) as well as at the strategic level of the Health and Social Care Partnership.

Efforts should be made to ensure these arrangements do not create disproportionately burdensome contractual burdens on people accessing SDS. For example, where a service or a good is being shared by more than one supported person, authorities should be as flexible as possible in respecting the wishes of the supported person.

Once a decision has been taken to pool budgets, this should be recorded appropriately and consideration must be given to who will take responsibility for jointly funded agreements.

Pooled strategic budgets also provide opportunities for the development of joint commissioning strategies and joint assessment and support planning arrangements. In this respect, the development of integrated arrangements at the level of the Health and Social Care Partnership create an ideal environment for the development of choice and control for all individuals with joint health and social care needs.

Underspent Budgets and Seeking Repayment

Where Local Authorities or Health and Social Care Partnerships have concerns about underspend of allocated budgets, these should be reconciled in line with local contractual arrangements only after efforts have been made to establish – with the supported person, unpaid carer and the social worker – the reasons for the underspend.[107]

To ensure reconciliation is done accurately and transparently, providers and Direct Payment holders should keep a record of decisions made (for example, deployment of staff, additional costs incurred) with a transparent and clear link to individual care plans (or adult carer support plans or young carer statements).

All unspent funds in Direct Payment accounts should be returned to the Local Authority or Health and Social Care Partnerships in the usual way. It is acknowledged that Local Authorities or Health and Social Care Partnerships may have made local arrangements with providers about reconciling unspent funds, and this SDS guidance is not intended to cut across those arrangements.

Seeking repayment of direct payment funds

Depending on the circumstances surrounding any decision to terminate a direct payment, the authority may need to decide if it is appropriate and proportionate to seek recovery of unspent funds. Any such effort should include the social worker and should not be undertaken without clear communication and discussion with the supported person and/or their representatives, and potentially a review or reassessment which can consider whether any part of the unspent resource can help achieve their outcomes in a different way.

The authority should also consider how to recover unspent budget if the recipient dies, including the possibility that before their death the supported person might have incurred liabilities or received services which should legitimately be paid for using the budget. There may also be occasions where additional funding is required to settle liabilities in full.

In addition, the 2013 Act enables the authority to require some or all of the money they have paid out to be repaid if the authority is not satisfied that it has been used to secure the support to which it relates. The authority may also require repayment if the person has not met any condition which the authority has properly imposed or have been imposed by the regulations. The authority should take into account hardship considerations in deciding whether to seek repayments.

The use of Pre-Paid Cards

Supported persons have a legal right to request a cash payment (Direct Payment) to meet their assessed need under the 2013 Act, and is often referred to as SDS (Option 1).

In recent years, pre-payment or prepaid cards have emerged as a way of managing Direct Payment spend as a way of reducing transaction costs and bureaucracy for supported persons and their carers in managing Direct Payments.

Pre-paid cards are now used by many local authorities for a range of purposes including direct payments, and can be used to buy from shops, online retailers and providers of services.

The potential benefits of prepayment cards include less resource-intensive financial monitoring, and does away with the need for supported people to open special bank accounts for Direct Payments. Authorities should seek to involve supported people in decisions concerning recovery of unspent funds on a pre-paid card in line with the principles set out in the previous section. However, research in England[108] and Scotland[109] has shown that the use of pre-paid cards have the potential to allow the placing of inappropriate restrictions on what can be purchased.

While the use of pre-paid cards is not mentioned in the Act, authorities should give supported people and carers a choice about whether they want to use a pre-paid card. Where authorities want to introduce their use, they should consult appropriately with supported people and ensure that the use of pre-paid cards is compliant with the SDS statutory principles of collaboration, informed choice and involvement when providing support, and with SDS Framework of Standards on flexibility of spend.

Charging

Free Personal and Nursing Care is available to all who are assessed by their local authority as needing this service and should be provided free of charge. If the supported person has been assessed as requiring this support they should be provided with the full range of choices under the 2013 Act.

Scottish Government Circular CCD3/2018[110] sets out guidance on access to free personal care and/or nursing care to any adult who is found eligible by their local authority as needing both or either of these services.

Personal care services include personal hygiene such as bathing, showering and shaving or help with food preparation.

Parents or guardians are not charged for any children's social care support (either personal or non-personal) up to the point that they transition from children's social work services to adult social work services. For other services where authorities have the power to charge, authorities should consider carefully whether to charge the families of disabled children where this would have a significant impact on the parents or guardians.

The rest of this section addresses different circumstances where the issue of charging may arise.

Charging for support to unpaid carers

The Carers (Waiving of Charges for Support) (Scotland) Regulations 2014 require local authorities to waive charges in relation to support provided to unpaid carers (of any age).

Similarly, the Self-directed Support (Direct Payments) (Scotland) Regulations 2014 prevent local authorities means testing or requiring a contribution from a carer where carer support is being delivered by way of a direct payment. This means that charges cannot be made for support provided to unpaid carers either directly by local authorities or commissioned by the authority through other organisations.

For detailed guidance on the waiving of charges for carer support, see the Carers (Scotland) Act 2016 statutory guidance.[111]

Charging for support to the supported person

Under Section 87 of the 1968 Act the authority can require adult supported persons to pay a contribution towards the cost of any services which meet the supported person's assessed needs. Historically charges have tended to be based on service types. Where a supported person's support is predicated on an identified budget it can be difficult to base any charge on the basis of a service. Where a person has been assessed as eligible for social care support and their Individual Budget has been calculated, the local authority may apply a charge for some elements of the support.

Local charging policies are a matter for the local authority and should be considered in light of the relevant COSLA guidance. Scottish Government Circular CCD3/2018 sets out what services or support cannot be charged for.

Residential care charging

The Charging for Residential Accommodation Guidance ("CRAG")[112] provides the framework for local authorities to charge for the residential care that they provide or arrange. This statutory guidance is updated annually.

Non-residential care charging

COSLA has produced the non-statutory National Strategy & Guidance: Charges Applying to Social Care Support for people at home.[113] This Guidance provides a framework that aims to maintain local accountability and discretion of local authorities when charging for non-residential social care services. This Guidance is also updated annually and issued to local authorities.

Examples of things that are not classed as personal care and that can be potentially charge for include community meals, lunch clubs, day care, community alarms and help with shopping or housework.

The Scottish Government has committed to removing charges for non-residential social care support by the end of the current Parliament and is working alongside COSLA to develop options to achieve this.

Towards an outcomes-centred approach to Commissioning

Effective social care commissioning and procurement are important elements of a successful operating context for social care.

This section deals with the strategic commissioning and procurement function of Integration Joint Boards and local authorities, and the role that it can play in ensuring a sufficient range of choices across all four options available under the 2013 Act.

The authority has a duty under Section 19 of the 2013 Act to 'in so far as is reasonably practicable', promote a variety of types of support and a range of providers of support availability to those who are eligible for care and support. The Carers (Scotland) Act 2016 clarifies that this duty applies to support enabling a break from caring.

Access to the Options provided under the 2013 Act is of very little value if there is a lack of variety in the type of support on offer or in the range of providers available. It is therefore a key responsibility of the authority to take reasonable steps to ensure that there is a sufficient range of choices available regardless of whether the supported person selects Option 1, Option 2, Option 3 or Option 4 under the 2013 Act. Providers in this context means any organisation providing relevant support to a supported person. This includes, but is not restricted to:

  • in-house (local authority) providers;
  • Local Authority Trading Companies/ Arm's Length Independent organisations;
  • voluntary sector (not for-profit) providers;
  • private sector (for-profit) providers;
  • social enterprises;
  • small and micro-providers;
  • user-led providers;
  • employee owned co-operative providers;
  • independent support organisations, disabled people's organisations; and
  • personal assistants.

Commissioning in the context of the 2013 Act is not simply about ensuring there is a transaction between a supported person and a provider. It should be set in the wider context of the relevant authority's strategic planning activity including community capacity-building, prevention and universal services.

Strategic commissioning will consider the most appropriate way to arrange for the provision of services and support to meet the needs of the local population. This may result in a decision to deliver services, in-house, via a grant, by putting in place public contracts, or forming an alliance or partnership or a combination of all or some of these.

The Audit Scotland Social Care Briefing[114] and the IRASC discuss the need to improve the impact of commissioning and procurement, including the need for ethical commissioning that routinely involves peoples with lived experience, carers, local communities, providers and other professionals in the co-design and redesign, as well as the monitoring of services and supports. This is the basis of a collaborative, rights-based and participative approach, which also takes into account factors beyond price, including fair work, terms and conditions and trade union recognition.

The authority should view its commissioning role as being a facilitator of service design and provision, that provides choice. This involves both providing information about choices and commissioning and putting in place a range of sourcing models and (where appropriate) procurement processes that allow people as much choice of type of support and provider as possible.

The authority should adopt a person-centred approach based on the principles of involvement and co-production. It should be transparent and should publish its approach either as a separate document or as part of its commissioning strategy.

Relevant legislation and guidance on commissioning

The Public Bodies (Joint Working) (Scotland) Act 2014 puts in place the framework for integrating health and social care and places a duty on Integration Authorities – which means Integration Joint Boards, Health Boards or Local Authorities in a lead agency arrangement – to involve a range of service providers, service users and their carers, representative bodies, and practitioners in the commissioning process.[115]

See also Statutory Guidance on Strategic Commissioning[116] under the requirements of the Public Bodies (Joint Working) (Scotland) Act 2014.

Part 3 of the Children and Young People (Scotland Act (2014) does not prescribe a complete strategic commissioning process. However the relevant statutory guidance[117] requires that the children's services planning cycle should be seen as a strategic driver towards the development of local commissioning processes which are based on robust information about needs, costs and quality, and ongoing engagement with service users and the wider community, with associated duties on the local authority, health board and Integration Joint Board.

Procurement

Procurement is only one funding route to secure social care service provision, strategic commissioning activity could also identify other routes to fund the delivery of social care services and support.

The Statutory Guidance accompanying the Public Bodies[118] (Joint Working) (Scotland) Act 2014 sets out guidance for effective commissioning and procurement processes, including the putting in place of procurement plans providing specific detail to direct those responsible for contracting services.

In addition, best practice guidance on the procurement of care and support services[119] provides further guidance on how procurement considerations can support SDS, where a public contract is the chosen form for funding social care provision. The authority should seek to use the flexibility within the procurement regulatory regime to meet the legal duties of the 2013 Act.

Local authorities should consider how best to develop a procurement strategy that ensure that the ability to 'self-direct' is not lost, and that the number of providers is not reduced unnecessarily.

See also Self Directed Support Scotland's report on procurement[120] for more information on how procurement can support SDS.

Contact

Email: yvonne.nova@gov.scot

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