Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance
Statutory guidance on social care assessment and associated process covering adults, children, young carers and adult carers.
Section 11: Support the Provision of Support
Provision of support under option 1: Direct payments
This section applies to Option 1 (the direct payment) only. It relates to all client groups and individual circumstances where the person may receive direct payments (i.e. adults, children/families and carers/young carers)
Monitoring of direct payments
11.1 The direct payment will require distinct monitoring arrangements which differ in nature from the monitoring under Options 2 and 3. However, any monitoring arrangements should be proportionate and they should take account of the additional support and assistance required by the person along with the purpose, amount and nature of the direct payment. The arrangements should be sufficient for the authority to satisfy itself that the direct payment is meeting the supported person's needs but they should avoid the risk that the supported person is simply discouraged from the option due to the perception that it involves unnecessary and disproportionate monitoring burdens.
11.2 There are two distinct types of monitoring arrangements:
- welfare monitoring (ensuring that the supported person's needs are being met), and;
- financial monitoring (proportionate steps to satisfy that public funds are spent in line with the assessment, support plan and supported person's agreement).
11.3 A direct payment is not a benefit, nor a simple cash payment. It is an alternative means by which to meet assessed social care needs. This means that financial monitoring on its own is not sufficient and the authority should not approach monitoring as a purely financial process. If the authority concentrates solely on financial monitoring, and if this monitoring is disproportionate and overly bureaucratic, this may discourage people from selecting Option 1 under the 2013 Act.
11.4. The welfare monitoring arrangements should be based around the supported person's individual needs and requirements. It should involve a conversation with the supported person about whether their needs are being met. It should be conducted on a collaborative basis, involving the supported person in determining whether their needs are being met. The social work function within the authority should design and oversee any monitoring in partnership with the finance function. The aims, objectives and approach to financial monitoring arrangements should be influenced by the values and principles in this guidance.
11.5 The authority should consider the relevant 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. 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.
11.6 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.
Integrated monitoring arrangements
11.7 It is essential that the two forms of monitoring - welfare and financial - are co-ordinated. The finance function within the authority should approach the task of monitoring in collaboration with social work and in line with the values and principles set out in this guidance. It is essential that that monitoring information is exchanged internally. It is important that all those involved in monitoring arrangements discharge their role in line with the values and principles and outcome-focused approach associated with self-directed support. Monitoring should be a means to an end - the end being that the person's outcomes are being met and the authority's funding is being used in line with those outcomes. Honest mistakes should not be penalised. So-called "stop payment" warnings should not be automatically issued when an administrative matter goes wrong. The supported person should be able to make reasonable adjustments within the broad scope of their support plan and assessment.
Employment of personal assistants using direct payments
11.8 A personal assistant is one of the providers who may provide support under Option 1 in the 2013 Act. This section provides guidance on some of the issues that may arise where a person chooses a direct payment and decides that they wish to employ a personal assistant.
The Protecting Vulnerable Groups (Scotland) Act 2007
11.9 The authority should develop effective arrangements to ensure that all prospective personal employers are aware of and able to discharge their responsibilities in relation to safe and effective recruitment under the PVG scheme. For detailed guidelines on the relationship between the two frameworks the authority should consult the Scottish Government's best practice guidance on the interaction between PVG and self-directed support (published 2011). This statutory guidance draws out some of the key points from the 2011 best practice guidance. Local authorities have a range of legal duties and powers in relation to child and adult protection. The authority should take steps to support their staff to discharge those duties and powers alongside their duty to provide choice, control and flexibility to both adult social care users and children and families.
11.10 The authority should make the supported person aware of their responsibility under the PVG scheme to decide whether or not a prospective employee performing a particular role is doing regulated work and should be a member of the PVG scheme. The authority should inform the supported person that a direct payment user employing a personal assistant will always be a protected adult.
11.11 The authority should inform the supported person along with anyone who may provide support and assistance to the supported person about the supported person's responsibilities to ensure safe and effective recruitment. The authority should identify and implement an effective process that informs local protocols and complies with PVG and other relevant statute.
11.12 The PVG (and other Disclosure) checks should be used as an aid to sensible recruitment practice but they are not the only aspect of sensible recruitment practice. The authority should ensure that the supported person, along with anyone who may provide additional support to the supported person, is made aware that the PVG Scheme allows personal employers to satisfy themselves that an individual to whom they are offering regulated work is not barred from doing that type of regulated work. However they should also ensure that the supported person is made aware that scheme membership on its own does not mean that the individual is suitable to provide support. That decision must always be taken by the employer, informed by the content of their Scheme Record as well as other good recruitment and employment practice such as taking up references, developing job adverts which specify any specific support requirements, interviewing and conducting probationary periods.
11.13 Although the authority cannot seek access to PVG scheme membership records for personal assistants it should ensure that the personal employer understands the importance of scheme membership, the rules on seeking and sharing information and the risks of employing an unsuitable person. Direct payments should not be refused on the grounds that the authority does not have access to scheme membership statements. The support plan agreed between the supported person and the authority as part of the assessment process should set out how the key outcomes are to be met. Where the authority does not consider that a direct payment, or the way in which it will be used to purchase support, will deliver the agreed outcomes the supported person should be advised of the reasons. Under the Direct Payment Regulations 2014 the authority can refuse to allow a direct payment where the person's safety is at risk however the authority must have good reason to use this power and it should be specific to the person's individual circumstances.
11.14. The authority should ensure that the supported person is provided with a formal supported person/user agreement when they set up the direct payment. The use of such agreements can provide a safe and proportionate framework. They can demonstrate that a comprehensive explanation of safeguarding responsibilities has been given to the supported person in an appropriate format, and they can confirm the supported person's understanding and acceptance of this. The authority should ensure that it develops the appropriate detail about PVG and safe and effective recruitment within their supported person/user agreements. As a matter of good practice the agreements should require the supported person to confirm their knowledge of PVG and their acceptance of the responsibility for managing any risk arising from their failure to access the available information.
11.15 Where the supported person employs a PA or several PAs through a direct payment the authority should ensure that the person's support plan is reviewed to assess how well outcomes are being met. If the authority has doubts about the ability of the supported person (or third party such as a guardian) to act as an employer or to manage risk then the authority may consider whether the direct payment is the appropriate mechanism to deliver agreed outcomes and can at any time request a review of the person's support needs.
11.16 A personal employer cannot make a referral directly to Disclosure Scotland. However, it is important that if a supported person has concerns about someone who is working for them, or who has worked for them, then they should raise the issue with the authority. The authority should make the supported person aware of this at the outset, and as part of any supported person/user agreement. The police can also be notified directly.
11.17 The authority should also make the supported person aware of the Disclosure Scotland helpline on 0870 609 6006 and Disclosure Scotland website www.disclosurescotland.co.uk
For further guidance on the interaction between direct payments/employment of personal assistants and PVG the authority should consult the Scottish Government's document Guidance on the interaction between Self-Directed Support and Protecting Vulnerable Groups Scheme http://www.scotland.gov.uk/Publications/2011/08/04111811/0
Employment of close relatives/family members as personal assistants
11.18 Under the Direct Payment 2014 Regulations the authority can agree to a supported person employing a close relative or family member where appropriate. This flexibility is important as it provides the opportunity for such arrangements where it is the best or only solution to meeting the personal outcomes and needs for the supported person. This is in line with the general principles of the 2013 Act and the aims and intentions behind self-directed support which are to provide creative and effective solutions for supported people.
11.19 The Direct Payment 2014 Regulations provide a clear framework for such decisions, providing appropriate and inappropriate circumstances for the employment of family members. This framework involves the authority as a party to any decisions. This means that the authority retains the power to either agree or disagree to the employment of a family member, though this should be on the basis of whether the arrangement will or will not meet the assessed needs of the supported person and not on the basis of assumptions or a general policy stance in opposition to employing family members.
11.20 Under the Direct Payment Regulations 2014 family member means the spouse or civil partner of the direct payment user, a person who lives with the direct payment user as if their spouse or civil partner, the direct payment user's parent, child, brother or sister, aunt or uncle, nephew or niece, cousin, grandparent, grandchild, the spouse or civil partner of any of the above and a person who lives with any person listed above as if their spouse or civil partner. All other relationships fall out with the scope of the Direct Payment 2014 Regulations.
11.21. All of the following requirements must apply in order for family members to be employed as personal assistants:
- the authority, the family member (i.e. the prospective personal assistant) and the supported person must all agree to the family member providing support;
- the family member must be capable of meeting the supported person's needs via the employment arrangement (Note: the authority, with its statutory duty of care ultimately decides if the arrangement will meet the supported person's needs), and;
- any one of the following additional appropriate circumstances must apply:
- There is a limited choice of providers: "limited choice" refers to instances where the person's choice is narrowed by specific circumstances such as the person's location. The choice is limited in that while there may be a very small number of providers who meet the minimum requirements to provide care (they are competent to do so and the person's needs will be met) and the range of choices is not sufficiently wide to meet the person's needs and their own preferred form of support. For example, due to a person living in a rural location the choice of provider that can meet the person's specific range of needs is narrowed to one provider with a presence in the person's area. The supported person is not content to choose that provider.
- The supported person has specific communication needs which make it difficult for another provider to meet their assessed needs
- The family member will be available to provide support at times when other providers would not reasonably be available
- The intimate nature of the support makes it preferable to the supported person that the support is provided by the family member
- The supported person has religious or cultural beliefs that make the arrangement preferable to the supported person
- The supported person requires palliative care
- The supported person has an emergency or short-term necessity for the support - this refers to instances where the employment of a family member would constitute a bridging solution until another care and support solution is found. An example would be where the authority conducts an assessment of a person's needs and the person also has a relative who provides unpaid care to them from time to time. The supported person would prefer to find a third sector provider who will meet their needs. While the relative has been happy to help out up to this point, all parties agree that it would be more appropriate for the relative to do so on a formal basis until the supported person can find a suitable third sector provider who can fit into the person's life.
- There are any other factors which make it appropriate, in the opinion of the authority, that the family member provides the support.
11.22 The creation of an employment relationship results in a formal employer/employee relationship. An important condition underpinning the employment of family members is the requirement for all three parties (the authority, the supported person and the carer) to agree to the employment of a family member in order for the arrangements to be put in place.
11.23 A family member is not permitted to provide support if the authority determines that either the family member of supported person is under undue pressure to agree to the arrangement or the family member is a guardian, continuing attorney or welfare attorney for the supported person. These two inappropriate circumstances can apply - and can thus prevent an employment arrangement - regardless of whether any or all of the appropriate circumstances apply.
11.24 Family members can only be employed to meet the assessed needs for the supported person. In other words, the decision to employ a family member relates to the specific provision of "statutory" or local authority funded support. The paid employment arrangement would relate only to the overall support that would otherwise be arranged by the authority. Alternatively, it could relate to:
- the relevant portion of the assessed needs in terms of support over particular time periods that would otherwise be arranged/provided by the authority.
- particular types of support that would otherwise be arranged/provided by the authority.
11.25 The key factor is that in all cases the local authority can only fund the formal support arrangement up to the level that they would ordinarily support as per the assessed needs for the supported person.
11.26 The authority should approach each request to employ a family member on a case by case basis. If the authority does not agree with the employment of a family member it should explain its reasoning to both the supported person and the prospective personal assistant employee. It should inform both parties of the additional support and information services and, where appropriate, their right to advocacy with respect to the decision. It should give the supported person an opportunity to query their decision with reference to the circumstances set out in the Direct Payment 2014 Regulations.
"When things go wrong"
Local authority powers to terminate a direct payment
11.27 Direct payments may be discontinued because:
- the supported person would prefer to revert to arranged services or an arrangement under Option 2 in the 2013 Act (individual service funds or similar arrangements);
- the supported person is no longer able to manage their direct payment with the available support;
- the local authority is not satisfied that the person's needs are being met, or;
- the local authority has concerns over misspent funds.
11.28 Where the authority is considering terminating a direct payment it should seek to locate any discussion in the person's assessed needs and the personal outcomes contained within the person's care and support plan. The key consideration should be whether the support plan is capable of meeting the personal outcomes and assessed needs of the supported person. The authority should be transparent with the person. Where it concludes that a particular form of support will not meet the person's needs and outcomes, the authority should seek to explain why this is the case and it should seek to collaborate with the supported person to develop alternative plans.
11.29 When terminating a direct payment the authority should keep the supported person informed throughout. Any decision to terminate a direct payment should follow a thorough discussion with the supported person, carer(s) and circle(s) of support.
11.30 The authority should inform the supported person of any decision or potential decision to terminate a direct payment as soon as possible. It should keep the supported person informed throughout the process. It is recommended that the authority set a minimum period of notice which will normally be given before the payments are discontinued, and include it in the information to be provided to people who are considering their options at the outset. The authority should bear in mind any contracts into which the supported person has entered.
11.31 The authority should not automatically assume when problems arise that the solution is to discontinue the direct payment. If the authority decides that it has the necessary powers to terminate the direct payment then it should discuss the alternative arrangements under Options 2 or 3 in the 2013 Act.
Short-term changes in the person's support arrangement
11.32 Where it is necessary for the person to enter hospital for a period of time the authority should take a proportionate approach. The authority should continue the direct payment where the person enters hospital for a short period in order to allow Personal Assistant contracts to remain in place. This is to ensure invaluable continuity of care once the person is able to return home, avoid repeating the costly and time consuming recruitment process and the need for interim care and support arrangements. This can also ensure that support can continue to be delivered in the temporary hospital setting.
11.33 Nonetheless in some instances it may be necessary for the authority to consider pausing the direct payment temporarily, for example:
- when a supported person enters hospital for a longer period, or because his or her condition improves, or;
- when a supported person is temporarily unable to manage the direct payment even with support, perhaps again due to fluctuation in his or her condition or the support available.
11.34 If so the authority should discuss with the supported person how best to manage any adjustment. The authority should inform the person as soon as possible if it is considering pausing a direct payment arrangement. It should avoid taking immediate steps without consulting the supported person and it should always be mindful of the impact of any decision to terminate a direct payment on the support needs of the person. It should set a minimum period of notice and it should include this in the information provided to the person within any supported person's agreement. Depending on their direct payment arrangement, the person may find themselves with on-going contractual responsibilities or having to terminate contracts for services, including possibly making employees redundant. The authority will wish to discuss the possibility that this may happen with the supported person before they begin the direct payment arrangement and agree how this would be handled.
Termination of a direct payment at short notice
11.35 It may be necessary in exceptional circumstances to discontinue a direct payment without giving notice. In considering this course of action the authority should first take account of the supported person's contractual responsibilities with a service provider or an employee. It will also have to take into consideration any outstanding financial liabilities the supported person may have. Before the direct payment arrangement begins the authority should make clear to the supported person the circumstances in which the payment might be discontinued with no notice.
11.36 The authority can take over the management of the supported person's arrangements in the interim. In considering whether it is practical, desirable and cost-effective to maintain the person's arrangements, the authority should bear in mind any contracts into which the person has entered. An example is that the local authority will not be able to take over a contract with a service provider which is not registered with the Care Inspectorate.
Seeking repayment of direct payment funds
11.37 Depending on the circumstances surrounding any decision to terminate a direct payment the local authority may need to decide if it is appropriate to seek recovery of unspent funds. The legislation 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.
11.38 The authority should also consider how to recover unspent budget if the recipient dies. For example, if someone wishes to pay an agency in advance for its services, the authority should bear in mind that it may be difficult to recover money paid for services which were not in fact delivered. The authority should consider that before their death the supported person might have incurred liabilities which should legitimately be paid for using the budget. For example, if they had received services for which payment had not been made at the time of death. There may also be occasions where additional funding is required to settle liabilities in full.
Provision of support under Option 2
The following guidance applies to Option 2 in the SDS Act "directing the available support". It applies to all circumstances where the supported person is provided with support under an Option 2 arrangement. This may include adults, children/families adult carers and young carers.
11.39 As stated in Section 8 of this guidance arrangements under Option 2 should be constructed in order to maximise the degree of choice, control and flexibility available to the supported person. This is because Option 2 arrangements are intended to provide additional choice and control beyond what would ordinarily be available under Option 3 ("arranged services").
The general principles that should inform the provision of support under Option 2
11.40 The authority's approach to Option 2 should be based around the general principles in the 2013 Act i.e. collaboration, informed choice and involvement. The authority should involve users and carers, key user and carers groups, support and information providers and providers in designing and delivering their Option 2 arrangements. It should ensure that the primary objectives for self-directed support - such as independent living and the personal outcomes approach - set the tone for their Option 2 arrangements and determine the way that they develop and deliver their approach to Individual Service Funds and other similar approaches. For example, the supported person should be involved in determining the specific agreement that is reached with the provider and the council, setting out how their support will be delivered and the key personal outcomes that will be supported by the arrangement. The person should be provided with clear, straightforward summaries of any three-way agreements underpinning the on-going management of their Option 2 arrangements. The supported person should be provided with the additional support and information that they need in order to actively manage their budget and support.
Strategic approach to Option 2
11.41 In developing its strategic plans for Option 2 the authority should take active steps to set up arrangements which clearly separate and distinguish Option 2 arrangements from the arrangement and provision of service by the authority either from within their own services or by arranging for bulk contracts with providers (i.e. "Option 3" in the 2013 Act).
The role of "the budget" in Option 2
11.42 Inevitably there will be some limitations on the degree of choice and flexibility available under Option 2. For instance, only a supported person with a direct payment can expect the degree of control associated with employing a support worker directly, i.e. employing a Personal Assistant. However, there are some important steps that the authority should take in order to provide an environment under Option 2 which encourages and supports greater creativity, flexibility and autonomy for the supported person as envisaged under Section 4 of the 2013 Act.
11.43 The arrangement should identify a financial resource alongside other non-financial resources within the person's support plan. The supported person should be assisted to direct their budget and to choose the support options that will help to meet their support plan. The authority can transfer the financial resource to one or more providers on the supported person's behalf. The person can then ask for the budget or portions of the budget to be directed to other providers within the overall framework of support.
Information and support
11.44 The authority should take steps to ensure that it is transparent with the person about the level of financial resource allocated to a person's support. This is particularly important for Option 2 because the provision of the transparent budget itself can play a role in helping to underpin how and in what ways the person directs their support. The budget, clearly identified and transferred to the supported person and the provider, can be a supporting aid to the person. The authority should explain to the person the ways in which the person can use their budget to meet their assessed needs and to achieve the personal outcomes within their support plan. The authority should make the relevant providers aware of these key points and should take steps to ensure that after the funding is transferred to the provider, the person and not the provider continues to control their fund.
Control for the supported person
11.45 The authority should take steps to ensure that the adult, child or guardian/attorney is supported to "take the lead" and to be in control of their support under the Option 2 arrangements. It should be the person and not the provider or authority who should be seen as the commissioner of their own support. The arrangements should be designed and operated in such a way as to give the supported person greater control over their support compared to Option 3 under the 2013 Act and a practical means by which to exercise this control. The arrangements should make it straightforward for the supported person to exercise control over their support, to secure their preferred support and to make adjustments to their support quickly and efficiently.
11.46 The authority, working in partnership with providers in their area, should take practical steps to ensure that the supported person is provided with the right level of additional support and information as early as possible and throughout the provision of support. This is in order to ensure that the supported person can actively manage their support plan under the Option 2 arrangements. The authority should consider the range of information and support services along with additional training, awareness raising and support that will need to be available in their local area in order to support the Option 2 arrangements and to assist people to manage their support in this way. In addition the authority may wish to consider the appropriate integrated budgeting and planning systems and software to ensure that the person can access their virtual budget and that they can know how and in what ways they are spending that budget.
11.47 The authority should inform the supported person that if they experience difficulties with their support they should in the first instance try to resolve matters with their social work and/or health professional. Local support organisations may have a role to play supporting users and providing additional support and information. The authority should also consider whether the person has a right to independent advocacy.
11.48 In the event that informal discussions do not resolve an issue the authority should make the supported person aware that they can make use of the local authority's complaints procedure. They should ensure that they are aware that in relation to complaints about any action, decision or apparent failing of the local authority they also have recourse through the Scottish Public Services Ombudsman once all other avenues have been exhausted.
11.49 Where the person uses a direct payment to employ a personal assistant or to purchase a service from a third or independent sector provider and where they are unhappy with that service, the authority should make it clear to the supported person that they should address any complaints that they may have about the services they purchase to the service providers themselves and take up complaints about their Personal Assistants with the employee/s. Alternatively, a complaint can be made to the Care Inspectorate about any registered service or about the actions of the Care Inspectorate itself.
Email: Heather Palmer
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