Wow: good for you!
I’ve taken a couple of cases to courts myself in the past and won, (Small claims myself, and an Employment Tribunal with help from my Trades Union) but it is a bit of a head banger and not something I would recommend to most people - you need balls of steel.
In both cases, the victory was won almost uncontested - my opponents curled up and died. Settling Out of Court often makes sense.
The Industrial Tribunal case was life changing - six figure settlement. Took 18 months to resolve. Could not have done it without Trades Union/Legal help (that cost me nothing).
Maybe so: perhaps we need to form a Carers Union or similar - we are far stronger together than working alone.
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Thats why we employ staff directly, not through an agency, We pay £12 an hour, and cover a few shifts ourselves unpaid if we need gap cover. We have zero recruitment and retention issues.
Which LA is that julinka?
Yes that would be good - might be a bit more lo-fi than legal action, but still effective perhaps. There used to be SPAEN but they are shutting down I think.
I looked into group proceedings and they are now a thing in Scotland. It’s covered by this act:
https://www.legislation.gov.uk/asp/2018/10/contents/enacted
Could raise an action on an opt-in basis. It may be that we only need a few really good clear cases (maybe 3 or so) where the relevant issues are clearly identical, and then provide further evidence that the problem is widespread, then local authorities would find it much harder to settle piecemeal and avoid a court judgement.
Maybe SDS Scotland can help with gathering evidence of the wider problem - they will come across this issue every day all over Scotland I presume… unless I’m wrong. I would gladly learn that we few here are the only ones having a problem…
SPAEN lost their contract funding a couple of years back - it wasn’t managed well, and there were a few complaints I think. No, I am unwilling to complain - my feeling is that you do better with calm reason and co-operation than with an adversarial approach, which alienates staff who are usually doing their best but have local government auditors breathing down their necks. And money isn’t an issue for us - my son is not spending the all benefits income he receives anyway - so he paid for his own Summerhouse!
Julinka is Aberdeen city council
Civil Rights First are a charity that provides free advice and information on legal rights, including under SDS, human rights, equalities and other rights. They might be able to offer advice around this issue. https://civilrightsfirst.co.uk/
Hi
Can anyone advise please? I have had a letter from sco co debt recovery for £81.39 The Local authority is demanding a historical money I am apparently owing to Direct payment account. The letters which i have had via Care manager are not telling me what it was for only the sum.
This is pre- pandemic matter. I could not remember what it was for only — i presume i have paid the local newspaper for advertising the job for a support worker.
I do not have a receipt. I had an Direct payment account at that time which i was managing myself. It was always strictly scrutinised with audits every 6 months. I just do not know what they want. It is purely chasing up every penny and making carers even more stressed.
Thank you for your help
Julinka
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That sounds very stressful. I don’t know the legal position off-hand, I’m afraid. But issues to look into:
- I remember in the guidance somewhere something about discussing with you before demanding money back.
- As a public body they must act reasonably - this doesn’t seem reasonable - they have to at least tell you, in writing, the reasons for their decision, and give you a chance to argue with them. Might you have mislaid previous correspondence from them?
- the time that has elapsed since the expenditure may well be problematic - as you say if there was a problem they should have picked it up before
- I spent DP money on advertising with Moray Council’s blessing
- have they discussed this with you before putting it in the hands of a debt recovery agency? If not that seems clearly unreasonable
There is a section in the statutory guidance somewhere on recovery of money - I’d suggest that is the first place to start. From what you’ve said, after that I’d probably also email the LA and ask them politely for their reasons, in writing, for demanding the money, and an explanation of why now, and what the money was for, and evidence they have of what it was for, and why they didn’t speak to you first (assuming you haven’t lost a letter) before instructing a debt recovery company. Depending on how they answer a formal complaint might be made.
Thank you Josh
Julinka
Direct Payments now SDS was designed to be flexible. I am sure, that politicians in Scottish office who were responsible setting up Direct payments (SDS) do not know how inflexible the system is. Surely, LA can trust us with small purchases like stationery, advertising and similar. We are often left with unspent money which LA reclaims. It is a vicious circle. We cannot advertise for staff and therefore we have difficulties recruiting. Due to that we have unspent funds in the bank.
SDS should be and must be more flexible. LA has implemented managed accounts. We cannot spend the funds only on agreed outcomes.
This rule is a far cry from what Direct payments used to be.
Julinka
I think the Scottish Government are very probably aware of how poorly SDS is being implemented locally.
I’m just at this moment trying to find the lawful basis that a Local Authority can reclaim money. Simply having a surplus in the account, as far as I can tell, isn’t a reason. It’s just not a thing. They might be able to reclaim it after a DP is terminated, or if funds are spent unlawfully, but as far as I can tell they can’t just grab it back because there’s a surplus. I’ve looked in legislation, regulations and statutory guidance. They’re just making it up again.
Hello Josh
I think there is a misunderstanding?
I paid for advertising and stationery in 2017 from Direct payments account. The sum was £81.39 I have submitted receipts to LA auditors. (the advertising and stationery) The audit, then was carried out on 6 monthly basis. I thought all was well. In 2019 i had an email from LA finance dept.that it was not allowed to be paid from Direct payments account and LA was demanding to pay £81.39 from my own funds. ( my private money.)
We had pandemic and years gone
by. Recently, once again I am being asked to repay the £81.39 from my own money since it was unlawful to pay for it from DP account. This saga is going on for 7 long years. As a matter of principle I am refusing to pay for it. Time is running out as it went now to debt collectors and i will end up paying more. Care manager left it in the air— and is enjoying her holiday.
I approached her last week 2nd of April’24 She said she will deal with it. Next i heard she is having a break.
It is eating into my valuable time. I had to find emails from 2017 and 2018-19 to jog my memory. Unbelievable— as you rightly said Scottish goverment is not aware how poorly LA’s are implementing SDS
Sorry I didn’t address your point about stationery.
It seems to me that paying for advertising costs, stationery and so on are necessary in order to employ a support worker. I just don’t understand how that could be a problem. How else are you supposed to recruit? Kidnapping?
Have you made a complaint? Would you like me to look over the paperwork?
Do you think it was unlawful to pay it from the DP account?
Before I got control of my DP, I got the LA to authorise releasing £200 from the DP for advertising costs. I only needed about £60 of it in the end. £81.39 seems about normal, or even cheap, for recruitment expenses, you could easily spend more on advertising. I just can’t see how that could be considered a misuse of funds. Are they saying it wasn’t in line with the agreed outcomes?
Sorry Josh I am busy and i did not respond in time.
I do not think that paying from SDS account for stationery and advertising is unlawful.
I am almost always short of staff. How do I suppose to get staff without advertising?
The Care manager has not dealt with the many requests i demanded, like vawing the fee. In fact i have paid now the sum of £81.39 from my own funds.
I am completely gobsmacked how ewrything passing the Care manager is ignored and not dealt with. She even ignored Advocate’s emails and is continuing to ignore them.
What to do? I tried to obtain her line managers name - it was not possible. I tried several avenues noone in LA is allowing me to have it.
I was told to solve the problems with Care manager at the first instance. I am now refusing to deal with her. I will go to my MP and also the Chief executive
for our LA
Julinka
I understand you paying the money just to get rid of the hassle, even though I can’t imagine any court enforcing it given the facts you’ve provided.
Do you mean advocate in the sense of advocacy services to help you communicate your point of view, or a legal advocate from the Faculty of Advocates who would represent you in court? I presume you mean the former.
My LA are demanding I repay money just now. I am refusing as my expenditure is fully justified. Let’s see what happens.
I’d still really like SDSScotland to say something on this subject.