SOCIAL WORK (SCOTLAND) ACT 1968:SECTIONS 12B AND C
POLICY AND PRACTICE
Part 3: Scope of Sections 12B and C of the Social Work (Scotland) Act 1968
25. Sections 12B and C of the 1968 Act place a duty on local authorities to make direct payments available to certain disabled adults and children who wish to receive them.
26. Direct payments are an alternative to local authority arranged community care and children's services and therefore need only be offered at the point where the local authority would normally have agreed to provide the services. They must not put people who choose to receive local authority services at a disadvantage.
Who can receive direct payments?
27. Those eligible to receive direct payments are defined as certain disabled persons, assessed as in need of services, who are capable of managing direct payments, with or without assistance. However, before receiving direct payments the person requiring the service must give his or her consent. Where a person is over 16 and clearly unable to give consent, or is under the age of 16, Regulation 3 of the 2003 Regulations specifies certain categories of people who are able to give consent on behalf of the service user. Namely, parents and attorneys and guardians who have powers to accept direct payments.
28. The Regulations define a "person in need" by reference to the definition in Section 94(1)(b) of the 1968 Act. This might include people (adults or children) with any kind of disability for example, those with physical, including sensory disabilities, learning disabilities and people who are disabled by illness (for example those affected by mental illness, arthritis, cancer or by HIV/AIDS). Everyone to whom direct payments are made must give their consent ( see paragraphs 82 to 98) to receiving direct payments. They must also be able to manage them alone or with assistance ( see paragraphs 99 to 110). The following groups of people are eligible to receive direct payments:
- Disabled adults to purchase community care services;
- Disabled people aged 16 and 17 to purchase children's services;
- Disabled people with parental responsibility to purchase the children's services their children have been assessed as needing;
- Parents and people with parental responsibility for a disabled child to purchase the services the disabled child has been assessed as needing;
- Disabled adults and 16 and 17 year olds to purchase housing support services; and
- Attorneys and guardians, with the relevant powers can receive direct payments on behalf of disabled people who are unable to give consent to arranging their own services.
Who cannot receive direct payments?
29. Not everyone who is eligible for community care or children's services will be eligible for direct payments. The 2003 Regulations, (made under Section 12B(1)(b) of the 1968 Act) specify that direct payments may not be offered to certain people whose liberty to arrange services is restricted by certain mental health or criminal justice legislation. These include:
(a) patients subject to after-care under a community care order under the mental health legislation;
(b) patients detained under mental health legislation who are on leave of absence from hospital;
(c) restricted patients conditionally discharged under mental health or criminal justice legislation;
(d) offenders serving a probation order subject to an additional requirement to undergo treatment for a mental health condition or for drug or alcohol dependency;
(e) offenders released on licence subject to an additional requirement to undergo treatment for a mental health condition or for drug or alcohol dependency; or
(f) people subject to equivalent mental health or criminal justice legislation applicable in England and Wales.
30. People in these groups are required to receive specific community care services. Offering them direct payments in lieu of those services would not give a sufficient guarantee that the person would receive the services required. Further details of restrictions are given in Regulation 2 of the 2003 Regulations.
Direct payments for adult community care services
31. Direct payments may only be offered to disabled adults who under section 12A of the 1968 Act, have been assessed as needing community care services. They can be used to purchase all community care services defined in section 5A of the 1968 Act except long term residential accommodation. ( Paragraphs 76 to 79 give details of purchasing short breaks/respite with direct payments.)
Free personal care
32. Disabled people aged 65 and over may request direct payments to cover the element of personal care (at home) which is provided free of charge. Local authorities should refer to Executive Circular CCD4/2002: Free Personal and Nursing Care 4 for further information. However local authorities cannot insist that individuals only buy services from regulated providers Recipients may employ their own staff if they wish.
Community care assessments
33. Assessment is a crucial process. Getting the assessment right is the key to making direct payments work. To improve the results for people using community care services, the Executive introduced single, shared assessments. (Policy and practice guidance is set out in Circular CCD 8/2001: Guidance on Single, Shared Assessment of Community Care Needs 5.) Local authorities are expected to implement single, shared assessment for older people by 1 April 2003 and for other community care groups by 1 April 2004.
34. The needs assessment process will be the same regardless of whether the person being assessed is likely to receive services or direct payments. There is no difference in the assessment of needs; the difference is in the delivery of the services required. It is important that local authorities make this clear to individuals. In particular, it is important that the needs-led focus of the assessment is retained. The views of the individual and, where there is one, any carer should be fully taken into account in the assessment process (as required by section 12A of the 1968 Act as amended by section 8 of the 2002 Act). The greater involvement the individual and their carer (where there is one) have in the assessment process and in the decisions reached about direct payments, the more likely it is that the direct payments will be a success. The assessment of needs and decisions about how these needs should be met should be part of one process. It is therefore essential that individuals be given information about direct payments before the assessment process begins.
35. A needs-led focus of assessment also considers how direct payments might aid preventative and rehabilitative strategies. A timely provision of direct payments may forestall the need for a more extensive provision of services in the future. Consideration should be given to how people could use direct payments to regain or retain their independence, and live in their own home, for as long as possible.
36. Before the local authority assessment process begins individuals should be encouraged, as part of a self-assessment process, to consider for themselves what assistance they might need.
37. Local authorities are reminded that the individual should be given a written copy of the personal/care plan at the end of the assessment process.
Direct payments for children's services
38. Section 22(1) of the 1995 Act relates to the provision of services for children in need. For this part of the 1995 Act a child is defined as being under the age of 18. It imposes certain duties on local authorities to safeguard and promote the welfare of children and where it is consistent with those duties to promote the upbringing of those children by their families. They should fulfil these duties by providing a range and level of services appropriate to the children's needs, whilst listening to and taking in to account the views of children. Section 22(3)(b) allows local authorities to make cash payments in lieu of children's services, but only in 'exceptional circumstances'. In general, local authorities use this to provide money in emergencies rather than on an ongoing basis. This power is not well suited to the needs of people who wish to receive payments to arrange services themselves.
39. Whether they are arranging services or making direct payments, local authorities are reminded that they should not be providing services for children, under section 22(1), unless they can be defined as being in need. The definition of a child in need is very broad. It includes children, under the age of 18, who are disabled themselves, those who are affected adversely by the disability of any other person in the family, or those children whose health or development may be impaired or below a reasonable standard without services from the local authority. While the focus of services provided under section 22 is to support the child, services may be provided to the wider family if those services help to safeguard or promote the welfare of the child. An assessment under section 23 of the 1995 Act determines the needs of the child that arise from his or her disability or from the disability of someone in the family.
40. Section 22(1) does not define the type of services which local authorities can deliver. Rather it refers to providing a range and level of services to safeguard and promote the welfare of children in need and to promote the upbringing of such children by their families. Families and children are likely to have a wide range of needs and problems and therefore the services which will be required to meet those needs are likely to be wide-ranging. It is for each local authority to decide which services it should provide and in which circumstances, and this will not change as a result of the introduction of direct payments.
41. At present the direct payments legislation allows local authorities to only make direct payments in lieu of services provided under section 22(1) of the 1995 Act. The service purchased by the direct payment does not have to be the same as the service that would have been delivered by the local authority; it must simply meet the need that would have been met by the local authority service. For example, a disabled child who might have attended local authority facilities for various forms of assistance (as covered by section 22) may now choose to employ a personal assistant using a direct payment.
42. Local authorities are reminded that direct payments can only be used for services under section 22(1) of the 1995 Act and not for services under any other sections of that Act nor services provided by local authorities under the Education (Scotland) Act 1980.
43. Direct payments can also be used to purchase short breaks with a specialist careworker. Where the local authority is satisfied that the respite care bought with the direct payments will safeguard and promote the welfare of the child, that child does not become "looked after" under the terms of section 25 of the 1995 Act. To avoid a child falling into the 'looked after' category it is important that the parent is in complete control of the respite arrangements. (Paragraphs 76 to 79 give details of how much respite a person can receive in any one 12-month period.)
44. Disabled people who are parents can receive direct payments for services available under section 22(1) of the 1995 Act to assist them in their parenting role. In these circumstances, their child can be seen as a child in need due to the disabilities of his or her parent(s). They can also receive services under section 12 of the 1968 Act. This means that direct payments can be used to meet all the social care needs of them and their families that arise from their disability. Although two different pieces of legislation are involved it is important that the needs of the disabled person and their family are looked at in a joined up way. In the interest of the family and to avoid duplication, local authorities should ensure the assessment process is streamlined and co-ordinated between adult and children's services and other relevant departments such as education.
45. It is important that local authorities work in partnership with families to provide those services that will best meet the needs of the children. The needs of the child should not be looked at in isolation but within the context of the family situation. The provision of services that assist disabled parents who need practical help in bringing up their children is often the most effective means of promoting the welfare of their children. This applies equally in terms of direct payments.
Disabled 16 and 17 year olds
46. Disabled 16 and 17 year olds are able to take advantage of the flexibility of direct payments enabling them to make more decisions for themselves and to provide opportunities for them to have more control over their lives. Direct payments may only be used to purchase services the disabled 16 or 17 year old has been assessed as needing and not those services identified in the assessment to support other members of the disabled young person's family.
47. In making the decision to make a direct payment to a disabled 16 or 17 year old, it is vital that local authorities look to the young person before his or her parents when gaining consent to direct payments.
48. Where there is a difference of views between parents and disabled young people aged 16 and 17 about direct payments or the services they will be used to buy, provided that the young people have sufficient understanding to make informed decisions, local authorities should give precedence to their views. Where the young person receives services in the family home the views of the parent should also be taken into consideration. Young people should be made aware that independent advocacy may be of help to them in these circumstances. It follows that there may be situations where it would be right for a young person to receive a direct payment whether the parents agree or not. The overriding requirement for the local authority is that whether by providing a service or a direct payment, its actions should promote and safeguard the welfare of the young person.
49. There may be situations where disabled young people will express their wish to manage direct payments themselves but it is apparent to their parents and to the local authority that they will not be able to do so in a way that will promote their welfare. This may be for a number of reasons, and may not be as straightforward as dealing with issues such as employment and accounts. If this is the case there may be the need to make appropriate arrangements to have payments managed for them by a suitable representative. (See sections on managing direct payments and support systems available.) Ultimately, local authorities have a duty to ensure that the arrangements put in place with direct payments will ensure the young person's safety and promote his or her welfare. Where this is not the case the local authority should explain, in writing, to the person why direct payments would be inappropriate. In these circumstances the local authority should consider whether it would be helpful to put the person in touch with a user-led support organisation that could offer advice about securing appropriate services.
People with parental responsibility for disabled children
50. Disabled children and their families may find it more arduous to access mainstream services, for example childcare, after school clubs and leisure activities. Sometimes by working with local authorities these difficulties may be overcome and children can access mainstream services. However at times families with disabled children may not consider existing services provided or commissioned by their local authority suitable for their child and believe that they can make arrangements themselves, which will be more beneficial. Direct payments can enable people with parental responsibility for a disabled child to make such arrangements. Services for disabled children should be designed to give them the opportunity to lead lives that are as normal as possible. Direct payments to people with parental responsibility for a disabled child are provided within the framework of section 22(1) of the 1995 Act, which requires local authorities to provide a range of services to promote and safeguard the welfare of children in need.
51. Existing guidance accompanying the 1995 Act, on the integrated planning for children's services and recent publications such as the For Scotland's Children6 emphasise the importance of:
- Promoting the upbringing of children within their families so far as this is consistent with safeguarding and promoting their welfare;
- local authorities working in partnership with families;
- listening to children and taking into account their views; actively involving children and parents where appropriate in assessments and decision-making; and
- having regard to issues of race, language, religion and culture.
52. Local authorities should work in partnership with parents in accordance with this guidance. Local authorities should only arrange direct payments when they are satisfied that the parent is a person who will make arrangements that are designed to safeguard and promote the welfare of the child. Local authorities must act in the best interests of the child. In doing so they should carefully consider whether it would be appropriate to give direct payments to parents who are subject to a Home Supervision Order or have been compulsorily removed from the home under child protection procedures. So long as the local authority is satisfied that the assessed needs of the disabled child and family will be met through the arrangements the parent is making using the direct payments, the local authority is relieved of its responsibility to arrange those services. Local authorities retain their responsibilities under the 1995 Act to assess and, where appropriate, review the needs of disabled children and their families in the normal way.
53. Local authorities must make clear the steps that people with parental responsibility for a disabled child ought to take to satisfy themselves that the person offering help with the care of their child is a suitable person. Working Together to Safeguard Children (Department of Health et al, 1999), paragraph 6.27, comments that "the available UK evidence on the extent of abuse among disabled children suggests that disabled children are at increased risk of abuse." It is important that people with parental responsibility for disabled children are fully alerted to the risks of employing staff directly. ( See paragraph 144 for information about Enhanced Disclosure.)
54. It is essential that when employing people to work with children, parents are aware of their responsibilities to ensure the safety of the child. It is paramount that parents have a rigorous recruitment procedure in place, which should include the taking up of references. A local user-led support organisation can offer advice on recruitment matters, including whether it is possible to carry out an Enhanced Disclosure check on potential employees. Where a local authority is not satisfied that the arrangements the parent will make, or has made, will safeguard the child and promote his or her welfare, it would not be appropriate for the local authority to make direct payments available. In these circumstances the local authority should explain its reasons to the parent in writing. Such decisions must be made according to the circumstances of each case and local authorities must not make blanket decisions by refusing direct payments to all who wish to employ their own staff direct. It should also consider whether it might be appropriate to put the parent in touch with a local support organisation that could offer advice about securing appropriate children's services.
55. The views of children should be listened to and taken into account in determining issues on direct payment. Children should be given appropriate help to express their views and wishes and should have access to independent advocacy when appropriate. Local authorities will need to handle such issues sensitively in terms of the family situation where there may be parental conflict with the views of the child.
56. Parents may use direct payments to purchase personal care services to meet the assessed needs of their disabled children. However, as children mature local authorities should encourage parents to give greater weight to the child's views about how their personal care needs are to be met.
Direct payments for housing support services
57. Supporting People 7, a new policy and funding framework for the provision of housing support services, came into effect on 1 April 2003. Housing support services 8 are services other than care or housing management services that enable a person, aged 16 and over, to establish or maintain occupancy of a dwelling. These services are provided to help people live as independently as possible in their own homes and might include help with home safety and security or to set up a new tenancy. Housing support services come within the definition of community care services, as defined by section 5A of the 1968 Act. Since 1 April 2003, when responsibility for funding them transferred to local authorities, disabled people have been able to use direct payments to purchase these services. From 1 June 2003 local authorities also have a duty to offer disabled people direct payments to purchase housing support services. As with other community care services the individual may contract with an unregistered service provider.
58. Disabled 16 and 17 year olds (or their parents) can access housing support services for children under section 22(1) of the 1995 Act.
59. For those aged 18 or over, if no needs other than housing support services are identified a "Simple Assessment" should be carried out looking only at the level and type of housing support service required.
Direct payments for equipment and temporary9adaptations
60. The 1968 Act also places a duty on local authorities to offer direct payments to enable disabled people to purchase for themselves equipment and temporary adaptations, which would otherwise be provided by local authority social work services. This includes equipment and temporary adaptations relating to a sensory impairment. Equipment and temporary adaptations relate to people of all ages, including children and will usually involve a larger initial payment, followed by subsequent amounts for after care and maintenance services as required. Local authorities are reminded that information provided about equipment and temporary adaptations should give details about receiving direct payments.
61. When making direct payments for an individual to purchase equipment or temporary adaptations, the local authority will need to bear in mind the specialist expertise that may be needed to ensure that equipment purchased is safe and appropriate. They will need to ensure that the individual knows how to use, arrange repairs to and maintain it. Ownership of the equipment (which may constitute part of an adaptation) or adaptation bought with a direct payment will lie with the individual and with it, responsibility for service and repair. Local authorities must clarify this with the individual at the out set. Local authorities should include an element in the direct payments to cover service and repairs where the individual is able to provide confirmation that he or she has an annual service agreement for the equipment/adaptation. Local authorities should also consider whether an element of funding is required to pay for specialist training to use the equipment. Careful consideration of all these points will need to be given when direct payments are used to purchase equipment and temporary adaptations.
62. Local authorities should consider whether to give people the option to donate equipment (and temporary adaptations) back to the local authority. In these circumstances the local authority will wish to ensure that the equipment being donated has been properly serviced, repaired and maintained and is still fit for purpose.
63. Direct payments cannot be used as a substitute for Home Improvement Grants for adaptations for disabled people or for any adaptation that would normally be provided by a landlord. Nor can they be used to purchase equipment that would normally be provided by the NHS.
Direct payments to purchase local authority services
64. People might wish to use their direct payments to contract directly with an agency/private provider/voluntary organisation for the services required, employ staff to provide the services or purchase the services from a local authority. An individual may approach any local authority to secure the services he or she has been assessed as needing. This is intended to enable people to have more control over the services they receive, particularly in remote or rural areas, where the local authority might be the sole provider of the services required. It also opens up the possibility of adjacent local authorities working together to develop 'shared' services.
65. There is no duty placed on a local authority to sell services. Instead they can choose whether or not to sell services in any particular case. However, buying local authority services must not be a precondition of making direct payments.
66. The local authority should consider the request to purchase its services in the context of existing demands on its resources, ensuring first that the needs of the people to whom it has an obligation to arrange services are fully met. The services should be 'sold' at no more or no less than the full cost to the local authority of providing the services. Local authorities should have an appropriate accounting system in place to monitor sales as part of its financial monitoring arrangements for audit purposes.
67. Local authorities are not obliged to build in extra costs, for example additional travel expenses, which a person might incur as a result of purchasing services from another local authority. Local authorities may however consider it appropriate to include extra cost, such as travel, where provision by another local authority is the only way of meeting the needs of the individual.
70. Research has shown there can be distinct advantages for disabled people when they are able to manage their needs holistically. Direct payments cannot be used to purchase services provided by relevant NHS bodies. However where a package of support includes jointly commissioned services with health for example, skincare, the management of pressure sores, the administration of percussive physiotherapy, local authorities are encouraged to work with their NHS partners to provide a joint direct payments package wherever possible, covering health and community care.
71. Under the Community Care (Joint Working etc.) (Scotland) Regulations 2002 ("the 2002 Regulations"), local authorities have the power to delegate the functions of making direct payments to relevant NHS bodies and the 2002 Regulations allow for the pooling of funds for this purpose. Pooled budgets will enable NHS bodies and local authorities to create more holistic and flexible packages, supported by direct payments. Local authorities are encouraged to work with their NHS partners in accordance with the 2002 Regulations, subject to joint outcomes from the pooled fund being agreed in advance of establishing the fund.
72. Where the direct payments package covers continuing health services local authorities may need to involve NHS staff in the training of staff employed by the individual to ensure that procedures are carried out correctly. Likewise staff may need to be trained in the use of specialised equipment.
73. Local authorities will also need to develop protocols around the assessment and monitoring of direct payments arrangements in liaison with NHS bodies. For effective monitoring to be carried out, those involved need to have the necessary expertise to judge whether the assessed needs are being met. In most instances this will mean that health care staff will need to monitor the fulfilment of healthcare needs.
74. Issues surrounding employer liability in the event of an accident or error by staff providing joint packages must be discussed with the individual and his or her family or carers etc. in advance, so that they understand their responsibility. In particular it is important that local authorities make people aware that user-led support organisation can give individuals advice about taking out an insurance policy to cover liability. Local authorities and NHS partners concerned about liability in the event of an error or negligence should contact their legal advisors.
75. Where it is not possible for direct payments to be made in lieu of the health care element of a joint package, local authorities should work with their NHS partners to ensure that the services required are delivered in such a way to maximise independence for the individual. In particular it should not impede the individual's ability to make choices about the services being purchased with direct payments.
Residential accommodation and respite
76. Direct payments may not be used to purchase long-term stays in residential accommodation. They may however, be used to purchase short breaks (or respite) in a care home subject to the maximum period specified by the 2003 Regulations. For children this might take the form of a short break with a specialist careworker. Local authorities should check the latest Regulations, but currently Regulation 6 of the 2003 Regulations specifies that where two periods in residential accommodation are less than 4 weeks apart, they should be added together to make a cumulative total. The cumulative total, calculated in this way, cannot be more than 4 weeks in any twelve-month period. However, if the two periods are more than 4 weeks apart they are not added together. For example, someone might have a one-week stay in residential accommodation every 6 weeks. Because each week in residential accommodation is more than 4 weeks apart, they are not added together. The cumulative total is only one week and the 4-week limit is never reached. Another person might have three weeks in residential accommodation, 2 weeks at home, and then another week in residential accommodation. The 2 periods in residential accommodation are added together to make 4 weeks, so the person cannot use their direct payments to purchase any more residential accommodation within a 12-month period.
77. People can receive additional periods in residential accommodation once they have reached the 4-week maximum but they cannot purchase it with direct payments. If the local authority considers that further residential accommodation is needed, it can still arrange and fund residential accommodation for the person in the traditional way.
78. The restriction on the length of stay in residential accommodation, which can be purchased with direct payments, applies to adults and children.
79. Local authorities should consider how direct payments could assist people leaving residential accommodation. Local authorities may make direct payments available before the person leaves the care home to assist them during the transition from a care home to their own home.
Employing close relatives
80. Regulations made under section 12B(3) of the 1968 Act (currently the 2003 Regulations) prevent people using direct payments to secure services from their partner (i.e. the other member of a married or unmarried couple), including same sex couples, or a close relative living in the same household. A close relative in this context is a parent, parent-in-law, aunt, uncle, grandparent, son, daughter, son-in-law, daughter-in-law, stepson or daughter, brother, sister or the spouse or partner of any of the foregoing.
81. In addition, local authorities should not allow people to use direct payments to secure services from a close relative living elsewhere or from someone else living in the same household as the direct payments recipient. This restriction is not intended to prevent people using their direct payments to employ a live-in personal assistant (provided that that person is not someone who would be excluded automatically by the regulations). The restriction applies where the relationship between the two people is primarily personal rather than contractual; e.g. if the people concerned would be living together regardless of any employment relationship. A local authority may decide that an exception to the rule about employing a close relative who does not live in the same household is justified, if it is satisfied that that is the most appropriate way of securing the relevant services. For example it may benefit people who have difficulties interacting with strangers.
82. The 1968 Act authorises local authorities to make direct payments only with the consent of the person who will be in control of the payments. This will usually be the person who requires the service, if he or she is 16 or over, but could also be an attorney or guardian or parent. (Paragraphs 82 to 88 therefore refer to the person giving the consent, who may or may not be the service user). Direct payments give disabled people greater control and independence, but this increased freedom is inevitably accompanied by increased responsibilities. When people consent to direct payments, whether for themselves or the person they are representing, they take on the responsibility for arranging and purchasing the services to which the payments relate. This involves ensuring that the person who needs the services receives the appropriate services to an acceptable quality. Where a person purchases children's services with direct payments, that person has a responsibility to ensure that the services bought will ensure the safety of the child and promote his or her welfare. It can also involve taking on legal responsibilities (e.g. as an employer, or by contracting with an agency). The individual (either on his or her own or with assistance) is also accountable to the local authority for the way in which the money is spent. These responsibilities may involve a substantial commitment in terms of time and energy, and should not be underestimated. Local authorities will wish to establish that each person appreciates what is involved and believes that he or she would be able to manage the direct payments, whether alone or with help. (Paragraphs 99 to 110 give more details about managing direct payments.)
83. Local authorities should only make direct payments to a person they are satisfied appreciates and accepts the responsibilities involved. However local authorities should note that an individual may receive as much assistance as he or she may require for understanding and giving consent to direct payments.
84. Local authorities should explain what is involved as fully as they can to people who wish to consider receiving direct payments. They should not expect people to commit themselves to accepting direct payments before full information is available; for example before the person has been informed how much money they would receive or what information they would be expected to record for monitoring purposes.
85. In particular, authorities should make people aware that any contract they make for the provision of services will involve legal responsibilities, and that if the person contracts directly with an individual they will be regarded as an employer. Local authorities should make clear to each person that it is his or her own responsibility to ensure that he or she is aware of, and complies with, any legal responsibilities, at the same time making the person aware of local support groups that will be able to help. Where an Independent Living Trust ( see paragraphs 126 to 128 about supported decision making) has been established, the trustees legally take on employer responsibility for the disabled person.
86. The local authority should also make clear that it would arrange services in the normal way if a person decides not to accept direct payments. Having offered direct payments, the local authority should make sure that the person appreciates that he or she is under no obligation to accept them. It should be made clear at every stage that the person has the option of withdrawing his or her consent to receive direct payments at any time. Local authorities should discuss with a person who is to receive direct payments what he or she should do if he or she no longer wishes to receive them.
87. Situations may arise where people will refuse to accept direct payments because they object to a specific aspect of the terms on which the payments are offered, for example the amount or the conditions attached. People may ask a local independent support organisation for help to resolve the matter. If it is not possible to resolve these matters through discussion, local authorities should remind people in this situation of their right to use the complaint procedure.
88. Individuals should be given time to consider the implications of taking on direct payments and the responsibilities involved. During this period the local authority may need to arrange services for the individual rather than leave him or her without services or rush him or her into making a decision about direct payments. Local authorities may also wish to give people the opportunity to reconsider a decision not to accept direct payments or to stop receiving direct payments, particularly if they change their minds as a result of a change in their circumstances. If someone who had initially expressed an interest in receiving direct payments decides not to accept them, the local authority may wish to discuss with him or her the reasons for that decision.
The service user
89. The legislation allows disabled people aged 16 and over to give consent to receiving direct payments. In judging that the service user appreciates what is involved, the local authority needs to be satisfied that the individual knows that he or she has a choice and that he or she can receive help from others to make that choice.
90. Local authorities must not exclude whole groups of people from being deemed competent to consent to direct payments. Instead, they should start from the premise that each person, aged 16 and over, has the capacity to consent to direct payments, and that they may require being given suitable support. In particular local authorities are reminded that, under the Adults With Incapacity (Scotland) Act 2000, they should not make decisions about an individual's capacity to consent to direct payments on the basis of the individual's capacity to give consent in other areas of his or her life.
91. Where an individual's capacity to understand and accept the responsibilities of direct payments is called into question, local authorities should first endeavour to ensure that the individual has access to ongoing supported decision-making mechanisms. This could take the form of a User Controlled Trust 10, a 'Circle of Support 11', or advocacy ( see paragraphs 129 to 131). (Decision-making mechanisms, such as User Controlled Trusts, cannot give consent on behalf of the disabled person. Instead, they support the disabled person in making decisions.) Local authorities should then consider whether the support available could enable them to appreciate what direct payments could mean for them, and whether the support could enable them to manage direct payments. At the same time the individual should remain the person who is in control. The way in which people give consent will vary greatly between individuals. Giving direct payments need not depend on the person being able to say, "I understand", but on the evidence that they will be in control of the use to which the direct payments are put. Only once such support is known to be unavailable and reasonable doubts can be shown to remain, should the local authority consider refusing direct payments to the service user.
Attorneys and guardians
92. Where a local authority has followed the guidance above and is satisfied that the person who requires the services cannot give consent to receiving direct payments, the person's attorney or guardian may consent to receive them on his or her behalf. This should be seen as a 'last resort' after every attempt has been made to support the person to make that decision him or herself.
93. This means that people, who have never had the capacity to consent to direct payments, as well as those whose capacity changes, can now benefit from them. It may be that an individual's assessed needs change and he or she is no longer able to give consent to receive direct payments in lieu of the new services. It is envisaged that the new powers for attorneys and guardians to consent to direct payments will be of most help to the disabled person in these circumstances because, rather than cease direct payments, the attorney or guardian may give the consent needed for the new payments arrangements to continue. This means that direct payments can continue when a person's condition fluctuates or deteriorates to the point that they are no longer in control of the direct payments.
94. Attorneys and guardians must act within the general principles of the Adults with Incapacity (Scotland) Act 2000 ("the 2000 Act") which are that all decisions made on behalf of an adult with impaired capacity must:
- Benefit the adult;
- Take account of the adult's wishes, if these can be ascertained;
- Take account of the views of relevant others, as far as it is reasonable and practical to do so;
- Restrict the adult's freedom as little as possible while still achieving the desired benefit, and
- Encourage the adult to use existing skills or develop new skills.
95. Local authorities should not make direct payments to an attorney or guardian unless they are satisfied that he or she appreciates and accepts the responsibilities he or she has to the individual receiving the services and the local authority.
96. Direct payments should only be made to attorneys and guardians who have been granted the relevant powers, under the 2000 Act, to act on a client's behalf. These powers are strictly interpreted and this means that when it comes to legal interpretation of the powers, there is no possibility of deducing implied powers. For attorneys, this means that the granter, while capable, has to give the attorney specific powers. This will usually take the form of a power to claim and receive on behalf of the granter all pensions, benefits, allowances, financial contributions, repayments, rebates and the likes to which the granter may be entitled. (Local authorities should note that it is possible under the 2002 Act for different persons to hold different powers in relation to the same adult. Potentially in relation to financial matters the appointee may be a company or postholder.) In welfare powers there is often a form of words indicating that the attorney "may decide what care and accommodation may be appropriate for me. Most commonly guardianship orders specify a range of powers delegated to one or more guardians. However, it is possible for one guardian to be given powers over welfare and financial matters. Local authority must ensure that guardians and attorneys have both powers relating to personal welfare and financial matters and therefore do in fact have the necessary powers to act on a person's behalf in relation to receiving direct payments. Local authorities should request documentary evidence to confirm attorney or guardian status and details of the powers granted.
97. The Public Guardian has a duty to receive and investigate all complaints regarding the exercise of functions relating to the property or financial affairs of an adult made in relation to guardians or continuing attorneys. Local authorities have a responsibility to investigate complaints in relation to welfare and the Mental Welfare Commission has a role in protecting the interests of adults with incapacity where the incapacity is as a result of mental disorder.
98. A parent or person who has parental responsibility for a child (aged under 18) may give consent to receiving direct payments to purchase the services the child has been assessed as needing. Local authorities must however satisfy themselves that the parent giving the consent will make arrangements that will ensure the safety of the child and promote his or her welfare. (Paragraphs 38 to 56 give further details of direct payments for children's services.) In the case of a 16 or 17 year old who requires services the local authority must first seek consent from the young person, ensuring that he or she has the support required to help him or her make that decision. Only where it is clear that the young person is unable to give consent should the local authority look to a parent for consent.
99. Local authorities should only offer direct payments to people whom they consider will be able to manage them, either alone or with assistance. This applies regardless of whether they are received by the person who requires the service, a parent or an attorney or guardian. The judgement as to whether someone is able to manage must be made on an individual basis, taking into account the views of the individual him or herself. As with all assessments, professionals from other fields may be involved where appropriate.
100. People may receive as much assistance as they require with managing the money but they remain accountable for the way it is spent. People may ask carers, family members, User Controlled Trusts, Circles of Support, peer support or other third parties to help them manage direct payments. They might also choose to buy in assistance, e.g. using a payroll service. There is no restriction on who may help a person in this way, although the restrictions on paying relatives described in paragraphs 80 and 81 will apply if the local authority has agreed that the direct payments can be used to pay someone to help in this way. With the individual's consent the payments may be made to a third party but the person who gives consent to the payments must retain control over how they are spent. This does not necessarily mean that the person who requires the services must authorise every transaction. People may express a preference about how a service is to be provided, and delegate the details to a third party. However, it must be open to the individual to overrule any decisions made by the third party. Direct payments are intended to facilitate independent living, not to switch from dependence on the local authority to dependence on a third party. Local authorities should satisfy themselves that the relationship between the individual and the third party has been discussed and agreed before direct payments begin. They must also be satisfied that the individual is aware that he or she can receive the payments direct.
101. If the authority concludes that someone could only manage direct payments with help, it should satisfy itself that appropriate help is available over a sustained period before deciding to offer direct payments. Where significant help is being provided, the local authority will need to ensure that any monitoring and review procedures involve direct contact with the individual for whom the payments are made, if necessary in the absence of the person who is helping him or her. This is to ensure that the individual is content with the way in which the direct payments are being used. Both local authorities and people receiving direct payments should also be aware of the potential conflict of interest if the individual secures services from the same person who is helping him or her to manage the direct payments. The same applies where an attorney or guardian intends to provide services for the individual. For that reason the Executive advises that the person helping to manage the direct payments or giving consent to direct payments on behalf of the service user should not be the provider of the service being paid for by the direct payments.
102. Some people who initially need help to manage their direct payments will in time be able to manage on their own. However, it is possible that not everyone will be able to do so. There is no restriction on the length of time that a person may receive help to manage direct payments. People who require help on a permanent or indefinite basis still come within the eligible group of people to whom local authorities are permitted to offer direct payments.
103. When looking at a young person's ability to manage, the degree of responsibility involved will depend on the size of the support package. For example, a young person may be able to manage part of their support package via direct payments but would not be able to manage the full package. The ability to manage may change as the young person gains more experience. The local authority may want to make transitional arrangements whereby initially the young person manages only a small proportion of their support with a direct payment. This proportion could increase as the young person matures with the objective of full management of the support package at age 18.
104. Some people with fluctuating conditions, such as mental health service users, may only require help at certain times. It is important that local authorities satisfy themselves that individuals have support in place when they need it.
105. Local authorities should ensure that they handle sensitively discussions about a person's ability to manage direct payments, and include their carer, family and supporters wherever necessary. This is particularly important where the authority decides not to offer someone direct payments because it does not consider that, even with assistance, the individual will be able to manage them.
106. If a local authority has any doubts about a person's ability to:
- express their personal choices and preferences (with assistance to communicate their views or preferences if necessary) between different types of service;
- (with assistance) be able to keep the necessary records;
- (with assistance) appreciate and cope with the legal responsibilities that may arise if he or she becomes an employer;
- ensure that he or she receives services he or she has paid for; or
- to manage direct payments on an ongoing basis (as opposed to having a fluctuating or deteriorating condition which may affect his or her ability to manage),
then they should consider what assistance would enable the person to manage that aspect. They should not take it as an automatic indication that the person is unable to manage. For example, the Executive envisages that people might receive assistance with keeping records, management of day-to-day relationships with staff or operation of PAYE. If someone does not have access to the help he or she needs, the local authority should put the person in touch with a local support organisation who will be able to arrange assistance. It may also wish to consider offering to arrange training to assist direct payments recipients to manage. Local authorities must, however, ensure that they 'step back' from the day to day management of the direct payments and service provision or they could be considered responsible for employment issues.
107. It is a key principle of direct payments that it is the person who gives consent to direct payments who controls the money. Local authorities need to satisfy themselves that the person giving the consent is in fact in control of how the money is spent and that control does not pass to the third party, (for example the person helping to manage the payments). This may need delicate negotiation, particularly where the third party is a carer, close relative or friend who may be making sacrifices in order to provide assistance, or who might have their own interest in the way direct payments are used. Allowing more time for the assessment process may help the local authority to ascertain who will be in control. Ensuring that the local authority talks to the person on their own, or if an interpreter is needed that he or she is not the person who would be helping to manage the direct payments, is also likely to help this decision.
108. Local authorities will need to consider how to treat someone with a fluctuating condition, for example a mental health service user, which affects his or her ability to manage direct payments. In these circumstances there is a need to plan ahead and make arrangements whereby a designated person or group of people (i.e. circle of support, trustees) can be given permission by the user to take over during a period when he or she is unable to manage. Having some form of advance planning or advance directive should be considered an essential component of direct payments for people whose condition may fluctuate or deteriorate over time. This would ensure that when they become ill they retain as much control and choice as possible of the arrangements and are able to regain full control if they become well again. This type of advance directive along with 'Living Wills' or User Controlled Trusts may help prevent a recipient reverting to local authority provision. Advance Directives allow people with mental health support needs to state in writing what needs they have if they become particularly distressed or unable to manage. For example a person could write down what a support worker should do if they have a crisis, or write guidelines for how to assess risk, or provide a list of useful telephone numbers that the support worker could phone for advice or information if necessary. (For more information on advance directives see Direct payments for mental health users/ survivors: A guide to some key issues) 12.
109. If the person's condition is likely to deteriorate to the point where he or she is unable to manage even with assistance, the local authority might consider ways of enabling the person to receive direct payments while able to manage. A back-up system controlled by the local authority must be set up and triggered during periods when the person is unable to manage. Equally, local authorities might decide to offer direct payments to people whose condition means that they are likely, at some point in the future, to lose the ability to manage permanently. In those circumstances they will still need to satisfy themselves that safeguards are in place to alert them in such circumstances. People whose condition is likely to fluctuate or deteriorate permanently should be given an opportunity to explore any worries they may have about their ongoing ability to manage direct payments. In such cases the local authority should make it clear to the individual that he or she can decide to stop receiving direct payments at any time and receive local authority services instead.
110. If the local authority concludes that someone would not be able to manage direct payments, it is good practice to discuss the reasons for the decision with the person, particularly if he or she disagrees. Although the person may continue to be unhappy with the decision, the offer of an explanation is an important indication that the matter has been considered seriously. The authority should also make the individual aware that they can use the complaints procedure ( see paragraph 188) to challenge the local authority's decision not to offer direct payments.
111. Direct Payments Scotland can offer advice and put disabled people and local authorities in touch with local support organisations. They have been set up with funding from the Scottish Executive to:
- increase awareness of direct payments amongst community care and children's services users, local authority staff and service providers;
- establish and develop local user-led support organisations;
- establish a national information service and provide good practice exchange;
- identify and address training needs for support organisations and local authority staff, and
- develop a model to help local authorities manage increased take up of direct payments.
See Annex B for further contact details.
112. Making direct payments, rather than arranging actual services, does not affect a local authority's function of providing emergency assistance under Section 12 of the 1968 Act or Section 22 of the 1995 Act. If the authority considers the circumstances to be so exceptional as to require such assistance, they may provide it in respect of the services to which the direct payments relate (see Section 12C (3) of the 1968 Act).
Direct payments can be offered to disabled adults who, have been assessed as needing community care services under section 12A of the 1968 Act.
They can also be offered to:
- disabled 16 and 17 year olds;
- disabled parents, whose children require services, and
- parents of disabled children,
in lieu of children's services provided by local authorities under section 22(1) of the Children (Scotland) Act 1995.
They can be used to purchase respite breaks, housing support services and equipment and temporary adaptations.
Disabled people, aged 16 and over, must give consent to receive direct payments but they can receive as much support as they need to reach a decision.
Where the person who requires the services is clearly unable to give consent an attorney or guardian, with the relevant powers, can give the consent.
Parents can give consent to and receive direct payments to purchase the children's services for their disabled children.
The local authority must be satisfied that the person who receives the direct payments is able to manage the arrangements. Recipient can have as much help as they need.
Local authorities should only make direct payments in lieu of arranging children's services when they are satisfied that the arrangements made by direct payments will safeguard and promote the welfare of the child.