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2. Self-Directed Support ( SDS) and Direct Payments

26. The National Strategy for SDS sits within the framework of Human Rights and Equalities legislation that applies to all public services. All people have the right to participate in and access information relating to the decision-making processes that affect their lives and wellbeing.

27. The fundamental principles of SDS are choice and control. Choice is evident where people are able to choose how they live their life, where they live and what they do. People have control of their support by determining and executing the who, what, when and how of the provision.

28. Self-Directed Support ( SDS) is the support individuals and families have after making an informed choice on how their individual budget, or allocation, is used to meet the outcomes they have agreed. SDS means giving people choice and control. The process for deciding on support through SDS is through co-production.

29. Before agreeing a support plan, supported self-assessment is used to help people think about their important outcomes. As part of the assessment people will discuss the budget available towards meeting these outcomes. The main purpose of the process is to give people more control over how their support needs are met, and by whom.

30. The mechanisms for getting support through SDS can be through a Direct Payment, or through the person deciding how their individual budget is allocated by the council to purchase the support. This latter form of SDS is sometimes referred to as an Individual Service Fund. Support can be a combination of these arrangements. Direct payments can also be managed by a third party. Some people may choose to leave the decision on how their support is provided to the council.

31. Only through the Direct Payment route can a person recruit a personal assistant and become an employer. In all other SDS options, including using a direct payment to purchase support from the Council or any other provider, the Direct Payment user is not the employer.

32. Self-directed support should be available to all, but it should not be imposed on anyone. There is a duty of care on local authorities, and self-directed support does not dilute that.

More information can be found at www.selfdirectedsupportscotland.org.uk

SDS and protecting adults at risk

33. Before the introduction of the PVG scheme, employers required employees in certain roles to obtain enhanced disclosure certificates. Previous legislation did not allow registered persons to share this information with others, although the employee could share their own disclosure certificate. However, as direct payments practice evolved many Councils required full sight of content of Enhanced Disclosures before agreeing to the use of Direct Payments to employ personal assistants.

34. The National SDS Strategy highlights the importance of striking a balance between enabling people to take risks and protecting those who need it. In transferring power to individuals, there is also a transfer of responsibility for accepting levels of risk. The principles of legislation in Scotland to protect those as risk require a proportionate response. SDS delivery clearly has to comply with the law, particularly fulfilling the duty of care and councils will need to devise robust and transparent protocols that ensure individuals who wish to employ personal assistants fully understand and accept the responsibilities that go with that role.

Interaction of SDS with PVG

35. A personal assistant who is employed by a direct payment recipient to provide them with a welfare service does not have to become a member of the PVG scheme. As with previous disclosure certificates, the individual seeking employment may share the statement or record. No information must be passed onto a third party by anyone else, without the employee's consent.

36. Given the continued right to DPs in implementing the SDS Strategy councils will wish to identify a sound process that informs local protocols and complies with PVG and other relevant statute.

37. Although councils cannot seek access to PVG scheme membership records for personal assistants, they will need to ensure 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 council does not have access to scheme membership statements. The support plan agreed between the individual and the council as part of the assessment process should set out how the key outcomes are to be met. Where a council 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 individual should be advised of the reasons. PVG scheme membership is not evidence that a council is fulfilling its duty of care.

Managing risk

38. At present, councils rarely seek sight of references obtained by DP users when recruiting PAs. This is on the basis of considered and careful delegation of decision making to the DP user. To protect individuals and hold them accountable for the use of public funds, many councils have locally developed User Agreements. Councils could develop a similar User Agreement that requires the DP recipient 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. Such an agreement could provide a safe and proportionate framework that demonstrates that a comprehensive explanation of safeguarding responsibilities has been given to the DP user in an appropriate format, and confirms their understanding and acceptance of this.

39. Where a person has employed a PA through a DP, the support plan will be reviewed to assess how well outcomes are being met. If Councils have doubts about the ability of the individual (or third party such a guardian) to act as an employer or to manage risk then Councils need to consider whether a DP is the appropriate mechanism to deliver agreed outcomes.

Referrals and Personal Employers

40. A personal employer cannot make a referral directly to Disclosure Scotland. However, it is important that if individuals have concerns about someone who is working for them, or who has worked for them, then they should raise the issue with the council. The police can also be notified directly.

41. Personal employers are not notified of listing decisions as a matter of course. However, depending on the way in which a personal assistant is employed (for example through an agency), a personal employer may be notified. The police may also contact a personal employer in certain circumstances.