SECTION 4: WHAT YOU CAN BUY
Services or support?
60. Most people begin by buying support from the independent sector and a proportion then move on to employing their own PA. People living in remote and rural locations may find that the PA route is the most likely to be able to meet their needs because other services may not be available. It is important to distinguish between buying services from a self-employed PA and employing salaried PAs, as described in section 5.
61. Thinking in terms of services to meet a person's assessed needs may be limiting compared to thinking of the support they need to achieve independent living. There may be more creative support options available outside mainstream services, for example therapeutic support for those recovering from mental ill health 29 (see also section 13).
Support from service providers
62. There is no duty placed on local authorities to sell services. Instead they can choose whether or not to sell services in any particular case. An individual may approach any local authority to secure the services they have been assessed as needing. Where a neighbouring 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. Local authorities may 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 an individual.
63. Service providers should be able to offer flexible tailored packages to suit individual needs. The individual who contracts with the provider can ask for consistency of staff and continuity of support and for the service to be withdrawn if it is of an unsatisfactory standard. It is best practice for local authorities to offer an individual budget of an equivalent monetary value of a council-arranged service to allow individuals to select their chosen option.
64. An individual who wishes to purchase a regulated service can find out about its quality from the Care Commission 30 which regulates a wide range of community and support services.
Housing support services
65. Housing support services 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 are prescribed in the Housing (Scotland) Act 2001 (Housing Support Services) Regulations 2002. From June 2003 local authorities have a duty to offer eligible people self-directed support to purchase these services, including those funded by Supporting People 31.
66. Disabled 16 and 17 year olds can access housing support services as children under section 22(1) of the 1995 Act.
67. For those aged 18 or over, if no needs other than housing support services are identified a Housing Support Assessment should be carried out looking only at the level and type of housing support service required.
Equipment and temporary adaptations
68. The 1968 Act places a duty on local authorities to offer direct payments so that disabled people may purchase equipment and temporary adaptations 32, which would otherwise be provided by local authority social work services.
69. Ownership of the equipment or temporary adaptation bought using the individual budget can lie with the individual and with it the responsibility for service and repair. This needs to be clarified with the individual at the outset. Alternatively, the local authority could continue to maintain the equipment or arrange the maintenance under contract.
70. When allocating a budget for an individual to purchase equipment or temporary adaptations, the local authority should bear in mind the specialist expertise that may be needed to ensure that what is purchased is safe and appropriate. As well as the payment to cover the initial outlay, local authorities should include a maintenance cost to cover service and repairs where the individual is able to provide confirmation that they have an annual service agreement. Local authorities should also consider whether an element of funding is required to pay for specialist training to use the equipment.
71. People may also have 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.
72. An individual budget cannot be used as a substitute for Housing Improvement and Repair 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, for example wheel chairs.
Health needs and continuing health needs
73. Research has shown there can be distinct advantages for service users when they are able to manage their needs holistically 33. The legal mechanism for joint working is the Community Care (Joint Working etc.) (Scotland) Regulations 2002 (SSI 2002 No. 533) ('the 2002 Regulations') which gives relevant NHS bodies the power to delegate making direct payments to local authorities and the Regulations allow for the pooling of funds for this purpose.
74. While health care remains free at the point of delivery, best practice will still allow health boards to share funds with their local authority partners to provide joint care packages that cover both social and health care needs. Local authorities will need to liaise with NHS bodies to develop protocols around the assessment and monitoring of self-directed support with a health care component. In most instances this will mean that health care staff will need to monitor the fulfilment of healthcare needs in order to ensure the necessary expertise 34.
75. Where a package of support includes jointly commissioned services with health, for example, skincare, the management of pressure sores, the administration of percussive physiotherapy, ongoing management of aspiration and suctioning, specialist cancer, MS, brain or spinal injury care, local authorities are encouraged to work with their NHS partners to provide a jointly funded individual budget wherever possible, covering health and community care. Such health needs must be met by someone who is qualified to do so. Health monies can be used to enhance the hourly rate so that a worker with health skills can be employed, or to increase the number of hours funded so that, for example a second, or other worker can attend to health needs at specific times of the day.
76. Continuing health care needs such as for some aspects of epilepsy and diabetes care, are services that can be delivered by a PA provided that they have been trained by NHS staff, or a suitably qualified agency. Likewise a PA may need to be trained in the use of specialised equipment.
77. Employers remain liable for the health and safety of their staff and the implications of this must be discussed. It is imperative that individuals understand their responsibility in relation to those of local authorities and health boards in the event of an accident or error by staff providing joint packages. Local support organisations can give individuals advice about taking out an insurance policy to cover employer's liability.
Margaret's joint-funded package has enabled her to return from hospital to her flat to enjoy the companionship of a near relative, to return to university (counselling course) and college (upholstery course) and to start undertaking voluntary work. She feels this has been possible due to good support.
She says: 'Problems become challenges, and challenges yield solutions. At 45, and a law graduate, I have enjoyed 3 years of independence and the simple things that many take for granted. I am able to eat the food I want when I want. I've managed to remain in control of my life, to continue driving my adapted vehicle, and have the enjoyment of a new pet.'
Residential accommodation and short breaks
78. A person's individual budget may not be used to purchase long-term stays in residential accommodation for adults or children, but can be used to purchase short breaks subject to the maximum period specified by the 2003 Regulations.
79. An individual budget may be used to pay for short breaks in residential respite provision or towards purchasing more flexible short breaks. For example, self-directed support can be used for a PA to accompany a user on holiday, so providing a complete break for the carer, or children may have a short break with a specialist care worker (see section 12 on children's services).
80. Regulation 6 of the 2003 Regulations specifies that where two periods of respite 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 3 weeks in residential accommodation, 3 weeks at home, and then another week's respite on an independent break with their PA. The 2 periods away from home are less than 4 weeks apart so the person cannot use their direct payments to purchase any more respite within a 12-month period. However 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.
'…Self-directed support has totally transformed our lives. There were absolutely no respite facilities locally which could take our son. We are now in control of obtaining respite care and have been able to send our son on adventure holidays, where he has fun and we get a much needed break!' (Parent of a son with learning disabilities)
Buying services from a self-employed PA
81. Personal assistants ( PAs) are usually employed directly by an individual on self-directed support. In exceptional circumstances it is possible for a PA to be self-employed.
82. In the former instance, it is the individual on self-directed support who takes on the employer's responsibilities for the PA's tax, national insurance etc. This is because most individuals will want to decide who the person is that they see, how they work, and when they work. This cannot be guaranteed if a person is self-employed, as they can send a substitute for themselves to do their work. For full details on becoming an employer of PAs, see section 5.
83. There may be instances where a user wishes to have a PA who is already self-employed. A PA cannot be asked to be self-employed to avoid the individual on self-directed support taking on employer's responsibilities such as paying tax and national insurance. It is essential that self-employed PAs provide proof from the Inland Revenue that they are regarded as self-employed for tax purposes. Details of the criteria the Inland Revenue apply to determine if a worker should be classed as self-employed are given at the HM Revenue and Customs website 35.
84. If an individual decides to contract with a self-employed worker, the self-employed worker is responsible for:
- providing a service agreement detailing items such as how much the worker is charging and how they will invoice
- providing a written statement to the effect that they will take responsibility for the paying of tax and national insurance
- funding their own training, including ensuring that they are trained to carry out the service they are offering
- providing a written statement that they have appropriate insurance indemnity cover, and
- undertaking and meeting the costs of an enhanced disclosure check.
85. Buying services from a self-employed PA means that the user has some additional responsibilities. For example, they should ensure that the PA's self-employed status relates to performing caring functions, and seek evidence of appropriate training undertaken by the self-employed PA. They must also arrange emergency cover for any periods of absence the self-employed worker may have from the contracted work. The self-employed person is not able to arrange this cover unless they are registered with the Care Commission as an agency, otherwise they are effectively sub-contracting. Only registered agencies are able to provide cover as part of their service agreement. If the local authority thinks that someone is acting as an agency and is not registered, they have a duty to report this to the Care Commission. If there is any doubt about whether the terms and conditions under which a worker is carrying out their duties are those of self-employment, then the individual on self-directed support must seek advice from the Inland Revenue.