SECTION 8 WHEN THINGS DON'T GO ACCORDING TO PLAN
156. If an individual contacts the authority to seek emergency assistance, or if the local authority's monitoring or review process shows that the person's needs are not being met, the care manager will need to consider what action should be taken. This may mean helping people to make other arrangements, or it may mean arranging services directly until they are able to make their own arrangements once more.
157. The care manager should consider the following questions and potential responses:
- Have the person's needs changed? ? Reassessment.
- Is the amount of money sufficient to enable the person to secure the relevant services? ? Review the individual budget.
- Is the person still able to manage self-directed support? ? Review the support they may need to help them overcome issues and manage longer term.
- Does the person wish to continue on self-directed support? ? First explore whether they require more support ? Arrange services as necessary.
- Has all the money been spent on the support for which it was intended? ? If the money has clearly been diverted to other purposes consider seeking repayment. ? A surplus is permissible within a given timescale for contingency purposes or to pay a PA's quarterly PAYE, sick leave and outstanding bills from service providers.
- Is the support being purchased safeguarding the person's welfare? ? If there is any doubt, local authorities should speak to the individual receiving the services on their own (whenever possible) and review the services being purchased with them. Where an attorney, guardian or parent is consenting to the self-directed support the local authority will also wish to discuss arrangements with them.
158. It is up to the local authority to decide when it is appropriate to seek recovery. The 1968 Act enables local authorities to require some or all of the money they have paid out to be repaid if they are not satisfied that it has been used to secure the support to which it relates. They may also require repayment if the person has not met any condition, which the authority has properly imposed, and those imposed by the regulations. Local authorities should take into account hardship considerations in deciding whether to seek repayments.
Discontinuing self-directed support
159. Self-directed support may be discontinued because:
- the individual prefers receiving arranged services
- the individual is no longer able to manage self-directed support with the available support
- the local authority is not satisfied that the individual's needs are being met, and
- the local authority has concerns over misspent funds.
160. Local authorities should not automatically assume when problems arise that the solution is to discontinue self-directed support. If the local authority does decide to withdraw payments then it will first need to arrange the relevant services instead, unless the withdrawal was following a reassessment after which it concluded that the services were no longer needed.
161. Local authorities should continue self-directed support where a person enters hospital for a short period in order to allow PA 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 PA recruitment process and the need for interim care arrangements. Where local policy arrangements allow, this can also ensure that personal care can continue to be delivered in the temporary hospital setting.
162. There may be circumstances in which the local authority wishes to discontinue self-directed support temporarily . For example when a person enters hospital for a longer period, or because his or her condition improves. Similarly when a person is temporarily unable to manage self-directed support even with support, perhaps again due to fluctuation in his or her condition or the support available. In these cases, the local authority will need to discuss with the person how best to manage. The aim should be to enable the person to resume responsibility for their own services after the interruption, if that remains their wish.
163. Clearly, wherever possible, any decision to discontinue should follow discussion with the individual and informal carer, and the local authority should, in any case, keep the individual informed throughout the process. The local authority may also need to keep in touch with the Independent Living Fund ( ILF) 48 and share information where appropriate in cases where the individual is also receiving ILF funding.
164. The local authority should inform people as soon as possible if it is considering discontinuing self-directed support, and if appropriate give them an opportunity to demonstrate that they can continue to manage self-directed support. Local authorities should set a minimum period of notice, which will normally be given before self-directed support are discontinued, and include it in the information to be provided to people who are considering self-directed support, which could also usefully form part of the contract agreement.
165. It may be necessary in exceptional circumstances to discontinue self-directed support without giving notice. In considering this course of action, local authorities will first need to take account of the individual's contractual responsibilities with a service provider or an employee. They will also have to take into consideration any outstanding financial liabilities the individual may have. Local authorities should explain to people, before they begin on self-directed support, the circumstances in which it might be discontinued with no notice and discuss with them the implications this has for the arrangements that people might make.
166. The local authority might decide to take over the management of the person's arrangements in the interim. In considering whether it is practical, desirable and cost-effective to maintain the person's arrangements, the local 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 Commission. Likewise it may not be practical for the local authority to take over the employment of a PA.
167. Where self-directed support is discontinued, some people may find themselves with ongoing contractual responsibilities or having to terminate contracts for services, including possibly making employees redundant. The local authority will wish to discuss this with people before they begin on self-directed support and agree how this would be handled.
168. Local authorities should also consider how to recover unspent individual budget if the recipient dies. For example, if someone wishes to pay an agency in advance for its services, the local authority should bear in mind that it may be difficult to recover money paid for services which were not in fact delivered. Local authorities should also consider that before their death the individual might have incurred liabilities, which should legitimately be paid for using the individual 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.
Local authority complaints procedures
169. Individuals on self-directed support who experience difficulties with the service their local authority is providing should in the first instance try to resolve matters with their care manager or direct payments lead officer. Local support organisations may have a role to play supporting users in clarifying the position and offering advocacy where this is possible.
170. In the event of informal discussions not resolving an issue, users can make use of their local authority's complaints procedure. People may make complaints about any action, decision or apparent failing of the local authority and individuals will have recourse through the Scottish Public Services Ombudsman (see Annex C) once all other avenues have been exhausted. They will not be able to use this route for complaints about services which they have secured from independent providers (including people they employ directly) using the individual budget. However, people should address any complaints that they may have about the services they purchase to the service providers themselves and take up complaints about their PAs with these employees. Alternatively, a complaint can be made to the Care Commission about any registered service or about the actions of the Care Commission itself. Support organisations such as the Independent Living Centres and SPAEN can provide information and advice about how to conduct any complaints (see Annex C).