I’d be interested in the opinion of SDS Scotland (and anyone) on the following question:
Must direct payment users ask permission before spending their DP on something novel that has not specifically been previously agreed, but is nevertheless in pursuit of the agreed outcomes?
OR
Are Local Authorities to exercise their duty to monitor spending by asking retrospectively, at reasonable intervals, for evidence of what the DP has been spent on?
You can’t spend it on anything else except what was arranged if you do it’s misuse of funds and it’s removed from you, they have access to see what is being paid with the card they can remove funds without notice also
Hi Thebusymum
Thank you very much for your reply. I was under the impression that you were free to spend the money on anything you like as long as it meets the agreed outcomes. So if one of the agreed outcomes was to improve social opportunities, then spending money on a club membership or something, without asking permission first, would be fine. Is that wrong then?
What card do you mean? Is that what’s called a ‘pre-payment card’? Do you have to have one, or can you just get the direct payment paid into your own bank account?
Are they allowed to just remove funds without asking you first?
Josh
No you have to be very specific about what your purchases are yes purchase of club membership may be ok but generally you need permission from them first?!
Yes it’s a pre payment card that is for an account they set up for you they have access to it and they authorise what you can spend via codes eg I get respite so I can use the card for hotel an that’s pre approved but if I say bought dinner or spa it would be rejected/if went through I’d be in trouble!!
All receipts must be sent also and audits are done periodically and any excess funds they will take back as they have access to it.
For me too much restrictions for it to work properly since I need carers and can’t get any so they take the fu ds back and I get nothing!. X
I see, thanks. So did the local authority say you had to have the payment card? Did they offer you any alternatives?
From what you say it sounds quite restrictive. Would you say that your support is really very ‘Self Directed’?
Are they saying you are not allowed to employ your own carers?
Hi unfortunately that’s the only way the do it now used to be a bank account we set up specifically for sds but that changed few years back to this payment card!
Yes I can employ carers but they are rare they only pay a certain amount per hours and rest needs to be funded by us as rates are around £30p/h sds pay 22 50p/h!!
Is definitely no self directed for my sons needs.
You can get your bank account system back if you want. The statutory guidance is quite clear on that. I got control of my DP by taking legal action. They now pay it into an account I control. I don’t ask permission before I spend the DP, but it’s early days, we’ll see how they react. I can help you if you want to ditch the payment card. It might be as easy as writing a formal complaint if you are lucky.
Are those carers rates based on what a care company/agency or care charity charge? If you recruit and employ someone directly the rates will be nearer £12-£15 or so at the moment I think.
EDIT: also there are rules about taking the money back. They have at least to ask you first. It’s possible they are acting unlawfully in a number of respects. Which Local Authority is it? I’m in Moray.
I’d still like to hear SDS Scotland’s view on this. It’s a really basic question about how a Direct Payment works, so it should be easy. @MarkieBoy, what do you think?
It is only sensible to check first - you see, any expenditure of public funds is subject to audit and scrutiny - so if you wish to keep receiving public funds, best keep very sweet with those who dispense them.
I’ve used funds from , e.g. Short Breaks for all kinds of fun things in the past - but they have different rules, and Local Authorities are a bunch of stuffed shirts who are easily miffed 
Check what first? Check that it is lawful? But you can check that yourself.
Check that the LA approve of your spending? But you don’t have to, it’s not their decision, as far as I can tell.
One thing an LA could do if they don’t like a spending decision is to stop paying the DP. They would have to justify this decision in court if you challenged it. This is the main thing I’m worried about, which is why I developed the checklist to evidence and defend my spending.
The way I see it now is this: “don’t sweat the small stuff” - it really isn’t worth the hassle. Be nice, play the game, don’t rock the boat, don’t bite the hand that feeds, etc etc etc…
I’ve had a lot of fun in the the past, but with a six figure sum coming in, I am minded to play safe these days.
Why? Why indeed!
The reason I advocate caution is because this ‘right’ has never been tested through the Courts … we are on a sort-of ‘Grace and favour’ situation akin to a Medieval serf - and dont forget it. Unless you are personally willing to test this legally, (which brings a lot of grief) best keep your head down, be nice, and play safe. I’m deadly serious.
OhJosh thats news to me that we can have an SDS account paid into a bank of our choice and not to have “managed account” (Prepaid account.) The rules are— LA would take the surplus money from the account like they do now and carry out an audit every 6 months.
At the moment since we have “Managed account” LA is not doing Audit since they can see the account when they want to. We have support staff being paid and it is repetitive. I cannot introduce anything new and pay for it. The Prepaid card would not allow it.
LA takes the surplus funds every 3 months.
Can you please let me know how to get our funds into a bank of our choice and manage the account ouselves? I am not the one to take LA to court. I have too much to do without the hassle of dealing with such matters.
Thank you
Hi Julinka
Below is adapted from my petition to the Court of Session. You could use it as a formal complaint. If you do use it, you need to do three things first:
Set up a separate account specifically for managing the DP and for no other purpose
Email the LA saying you withdraw your consent for the DP to be paid into a managed account, and request that the DP is paid into the account you set up. Give details of the account.
Email the managed account holders instructing them to transfer the balance into the account you set up. They will say no, but ask anyway. This is to show you do not have ‘total control’ over the money.
If the LA refuses, you can then make a formal complaint. Make a note of the date they refused, as that sets the clock ticking for important deadlines in case you are unhappy with their response. The tone of what follows is rather formal, as it was written for the attention of a court. I don’t know if you want to make the same points but in a friendlier tone or not, that’s up to you. The formality might annoy them, or it might make then nervous, I don’t know. Anyway, see below:
Dear [Mr/Ms …]
This is a formal complaint
Direct Payment for [insert name of supported individual]
The problem
[insert name of Council], in their email of [insert date] refused my request to have the direct payment paid into an account set up by me, in my name, and controlled by me. In so refusing [insert name of council] have acted unlawfully on at least two grounds.
1)
Regulation 5 of The Self-directed Support (Direct Payments) (Scotland) Regulations 2014 (The “Regulations”) says:
“Third party direct payments
- A local authority may pay all or part of a direct payment to a person other than the direct payment user (a “third party”) if—
(a) the direct payment user asks the local authority to make the payment to the third party; and
(b) the local authority is satisfied that the direct payment user retains total control over how the direct payment is spent.”
I, on behalf of [insert name of supported individual, if not you] am the ‘direct payment user’. [insert name of managed account holder, e.g. Fife Business Services] is a ‘third party’. I am the first party, and the local authority the second party.
The requirement given in regulation 5 (a) is not satisfied. In my email of [insert date] I asked for the Direct Payment to be paid into an account set up by me, in my name and controlled by me. I did not ask for the Direct Payment to be paid to a third party.
The requirement given in regulation 5 (b) is not satisfied. No reasonable person or public authority could be satisfied that I retain ‘total control’ over how the direct payment is spent, given that I have no means of spending the money in the account (I have no debit card, cheque book, I cannot set up electronic payments) and the fact that [insert name of managed account holder e.g. Fife Business Services] will not comply with my request to release money and transfer the balance of the DP into an account I control.
Both requirements (a) and (b) given in regulation 5 of the Regulations must be met before a local authority may pay the direct payment to a third party. As shown above, neither requirement is met. Therefore [insert name of local authority] may not lawfully pay [insert name of supported person]'s direct payment to [insert name of third party]. [insert name of LA] continues to pay the direct payment to [insert name of third party], and is therefore acting unlawfully in continuing to do so.
2)
Section 4 (1) of the Social Care (Self Directed Support) (Scotland) Act 2013 says:
“4 Options for self-directed support
(1) The options for self-directed support are—
Option 1 - The making of a direct payment by the local authority to the supported person for the provision of support.
…”
The meaning of ‘direct payment’ is given in Section 4(2) of the 2013 Act:
““direct payment” means a payment of the relevant amount by a local authority to a supported person for the purpose of enabling the person to arrange for the provision of support by any person (including the authority)”…
[insert name of LA] has not paid me a direct payment on any ordinary natural understanding of that definition. [insert name of third party] receive payments from the [insert name of LA] which they hold in a managed account. I have no control over the money in the account at all. I can control who I employ and how I employ them, but that is controlling recruitment and employment, not money. ‘Direct Payment’ refers to money, not merely the opportunity to employ a personal assistant at the local authority’s expense. The person I employ receives a payment, but this comes from [insert name of LA] via [insert name of third party], not via me. At no point does the money go through an account I control. I, the direct payment user, have not at any point received a payment, directly or otherwise. I suggest that the word ‘direct’ is reasonably interpreted to signify that, unless otherwise requested, the payment must be made to the direct payment user, not by a circuitous route, not via other parties, and most certainly not bypassing the direct payment user altogether, as is currently the case.
This interpretation is very strongly supported by the Statutory Guidance to the 2013 Act. On page 58 of the guidance we find this:
“Supported persons have a legal right to request a cash payment (Direct Payment) to meet their assessed need under the 2013 Act, and is often referred to as SDS (Option 1).”
Here ‘Direct Payment’ is used synonymously with ‘cash payment’. This clearly means money, although presumably not necessarily ‘cash’ in the form of coins and banknotes. This interpretation is confirmed again on page 17 of the Guidance:
“The authority should be aware of and be able to explain the key characteristics of a direct payment. For instance, under a direct payment the supported person receives a sum of money into a bank account. The supported person, either on their own or with support, can then purchase the support that they wish in order to meet their personal outcomes.”
I have not ‘received a sum of money into a bank account’ that I can use to ‘purchase the support’ I wish in order to meet [insert name of supported individual]'s personal outcomes.
The remedy
Immediately pay the balance of the Direct Payment money and all future payments into the following account I set up for the sole purpose of managing the DP:
[Account holder]
[Bank name]
[Account number]
[Sort Code]
Yours sincerely
[insert your name]
I could understand taking that approach if (a) the service we received was practically acceptable AND (b) we were talking about an abstruse and debatable point of law.
But the drafters of legislation don’t want to create doubt. Where possible, they try to be clear. And the law is clear. One only has to read it. There is no doubt in my mind what decision the Court of Session would reach in these ubiquitous cases of local authorities outright refusing to give up control of direct payment money. The regulations say that the service user must retain total control. All anyone has to do is read what it actually says.
Nevertheless, confusion persists, and I don’t know why. Even lawyers, and the PANetworkScotland, and possibly even SDSScotland, unbelievably, don’t seem to have quite got the memo.
I remind everyone that when I took my petition to the Court of Session, they permitted my petition to be served on Moray Council, Moray Council didn’t challenge the permission stage, the court granted permission to proceed, and Moray Council almost immediately agreed to pay the DP into an account I control. I haggled a bit and got them to admit they had made a legal mistake before accepting the offer. I almost wish I hadn’t settled out of court now, but I was too hazy on the process to be sure it would have been reasonable for me to do so, given that Moray Council had given me what I asked for is practical terms. It was simple and easy. and I suspect it was simple and easy because Moray Council obviously didn’t have a case.
@julinka and @Scally and @Thebusymum , would any or all of you consider, at some point, making a joint representation to the court? It seems there may be no shortage of similar cases. If we could get maybe a dozen or so similar cases, all on this exact point, that would take the pressure off any one party. Perhaps as a group we’d have more luck getting legal aid and a proper advocate, instead of a foolhardy maniac like myself leading the charge. I know of at least two other angry-but-unwilling-to-fight families and could probably round up a few more fairly easily.
Just got the dreaded email stating they are taking 19k back off me as not been able to use for respite due to no carers available!! Just boils my blood how they’re quick to take funds back but different when need help!! Trying to fight with them to allow me to purchase a shed for my son so he has something to do when not at his placement which ends December!! Takes time to do the transition and just for him just know I’m going to have to fight again!!!
SDS is really not person centred approach!!
Which local authority are you in?
Hi it’s Aberdeen City Council
Hello Josh
The same is happening here had a letter from LA that they are reclaiming £14k I have huge difficulties getting carers to help us. Shortage of staff is causing accumulation of funds.What to do? I have neither time or apetite to fight. They know my situation and relying on the fact, that i am too busy to be a nuisance to LA
As far as creating an account which i would be able to manage myself — I am willing to join others to fight our case.
Thank you for all your help
Hi there same here it’s very frustrating when it’s handed in one and removed from another and they think they’re doing a good job!!
I’m so sick of them and this SDS but no other way unfortunately I’ve a review soon regards my son etc as his placement due to end soon and he back home 24/7!!! Yet can’t find carers who stay the pay is ridiculous also no wander yet agency charges me 24.30p/h they get 10.50?p/h so wrong.
Someone in charge must be able to help as am sure this is happening to thousands. X