Budget recovery

Hello, I’m looking for some advice. I feel very let down by services that are supporting my family. I have an adult carer support plan and my SDS budget is split with one of my children who also has an SDS budget. It is an option 1 direct payment with PA hours for my son and PA hours for carer replacement care, which had been working well until our PA left. We have had no luck in getting a replacement PA. We have had no support for over 9 months during which I have kept in regular contact with the services regarding the mounting pressures which reached crisis point a long time ago. I found another service 5 months ago that could provide much the same support, although through an agency. They responded to an emergency referral and offered support provision very quickly. We have been unable to take this support as I was told a SW review had to be completed first which has taken several months and is still not finalised. The carer support service have refused to release the direct payment funds, which have been held in a managed account for paying the PA and have told me I cant access immediately available funds to get this support in place urgently. I was told I needed to have another review, to plan for agency support, which would also take months. Within 24 hours of me flagging up that there was a significant available budget that could pay for this like for like support, I have received an email informing me that that the funds are being recovered as an underspend and are no longer available. No discussion has taken place with me regarding this and I do not think the decisions made are fair. I don’t understand why the currently available funds cant be used in the interim to pay for the urgently needed support and I actually feel that I have no control at all. Our outcomes could still be met in much the same way. I have also never had any information given to me regarding the recovery of surplus funds which they are now saying should be recouped on a 6 weekly basis. This is not flexible in my opinion and gives very little freedom to choose how the direct payment is used and with a very restrictive timeframe. Can anyone offer any advice please?

I’m sorry to hear about the experience you are having @MaryP.

It’s very disappointing to hear that your LA are saying they need to review your support package/plan so that you can use it to pay an agency rather than a PA. This sounds overly prescriptive and inflexible, especially if they do not have the resources to carry out the review in a timely manner. As you say, as long as the outcomes are still being met, you should be able to use your budget to purchase the support as you decide. There is info on this in the SDS Handbook here: What happens if you do not spend all your support budget? - The SDS HandbookThe SDS Handbook

Different LAs take very different approaches to recovering surplus funds and it sounds like yours is stricter than some (certainly where I live and work). This should be clearly stated in your direct payment agreement. From what I know of different LAs, most will still leave you with a balance of around 4-8 weeks. There is a recent feed on this here: Where, if anywhere, is the authority for reclaiming surplus funds? - Legislation & Guidance - SDS Forum (sdsscotland.org.uk)

Sadly, you will probably have the best chance of achieving a positive outcome by making a complaint using the LAs social work complaints procedure (and/or via a local councillor/MSP/MP). As always, I would advise you to contact your local independent SDS support organisation or community brokerage service, who may be able to negotiate with the LA on your behalf (if required): Find Local Information and Support - Self Directed Support Scotland | Self Directed Support Scotland (sdsscotland.org.uk)

Best of luck getting the support you need back in place for you and your child.

Justin

@MaryP It may be worth contacting Civil Rights First, which can provide free and impartial legal advice and advocacy, including around SDS: Civil Rights First

@justinb Thank you very much for your helpful replies. I have received some further advice and will proceed with a complaint . I’ve never been given a direct payment agreement and have never been given any advice regarding recovery of a surplus on a 6 weekly basis. Underspends have been previously taken back at the end of each budget year but with absolutely no notice or discussion with me at all and no written agreement to state that this is their protocol. I am now much more informed having read the guidance and I’m prepared to challenge things this time. Thanks again!

@MaryP , you have a right to have the money paid into an account in your name that you are in control of. Did you ask for a managed account? I took legal action to get the account in my name, and now I’m refusing to pay back an underspend. So far they have not come up with any lawful reason why I should.

From memory the two circumstances where local authorities can reasonably ask for money back are when the DP winds up, perhaps because support is no longer needed, and when money is spent unlawfully. As far as I can tell (and I haven’t exhaustively researched this yet) there is no clear justification for taking money back simply because it is underspent. Local Authorities might try and put this in the contract they have with you and rely on that, but I don’t know how enforcible that would be. I should do a proper bit of work on this as it’s a common theme on the forum. Again, it would be great if SDSScotland would give a view on the general situation (without giving legal advice about a particular case, of course).

@Josh Thank you for sharing your experience. I didn’t ask for a managed account and when I asked for the funds to be provided so I can actually access the DP I have been told they can’t and it has to be a managed account if its for a PA. LA’s seem to be able to do what they like.

This appears to be a common experience. I was told exactly the same: “if you employ someone you must have a managed account”. I complained, citing the 2013 Act and the 2014 Regulations, and they doubled down on their position in the face of all rationality. I went to the Ombudsman, who didn’t have a clue and were worse than useless (essentially siding with the LA and using up time which meant I had to rush the petition). I went to solicitors, who couldn’t get legal aid for me because I earn a few quid too much, and even they seemed a bit confused. So I then decided to represent myself in a Judicial Review and wrote a petition to the court of session. The LA employed Brodie’s and as soon as they looked at the petition the LA gave way and put the DP into an account set up by me, in my name which I control. They even admitted they ‘erred in law’. In retrospect I wish I had worded the petition differently to make it harder for the LA to settle out of court.

You can do the same and you will win, but who wants to do all that? It’s horrendously stressful and takes about a year. I could help people do a ‘group proceeding’ Judicial Review to the court. We might be able to get legal aid for that and a proper advocate (instead of me). There are several people on this forum in similar positions. I think we’d only need about 3 or 4 good examples of exactly the same problem to get a solid decision from a court which will make it very difficult for LAs to get away with this unlawful behaviour in future.

As always, I’d be interested in SDSScotland’s views on what appears to be LA’s wholesale unlawful behaviour.

Looks a bit like a postcode lottery - we are in North Lanarkshire, and we carry forward two months surplus of funds - simply because that is a contingency in case of an emergency such as my wife or I becoming unwell (we currently provide around 30 hours a week, unpaid, to support our son).
Also bear in mind the potential for an Industrial tribunal or a redundancy or voluntary severance - with 5 staff in the team its almost inevitable that we have to cover contingencies such as Maternity or Long-term sick pay, or (god help us) dismissal and severance pay. NLC has always been supportive and never interfered with us or tried to claw back surplus.

I mean, lets look at a worst case scenario: our son has a serious and life-threatening condition - and what happens if he dies suddenly? We have five members of his team on payroll, some have served for over ten years. They have mortgages and/or rents to pay, children and dependants. Its not unreasonable to hold back enough to pay them all three months pay - that is only 90 days or so - to help them find another job. In this case we are talking well into five figures.

@Scally Thank you for responding and for sharing your experience. My experience with our LA was reasonably positive whilst we had a PA and the outcomes were being met absolutely as they had stated in the support plans and via a managed account, as stipulated by them. However, up until
recently, I haven’t been fully informed of my rights and now that I am becoming familiar with the SDS Act and associated guidance, I feel pretty let down as I don’t really have any control of the budget spending at all. This has become apparent now that we have run into difficulties. As I understand, I should be able to decide how the budget is used to meet our needs, in any other way ( that isn’t unlawful and still meets the outcomes) without having to go through very lengthy procedures, which have just added to existing pressures. The speed at which they have been able to recover funds, now that the underspend has been highlighted, is astonishing! I am very upset that they could not release the funds, to be used to meet our needs, in the same way! They have advised that funds are being recovered as the budget has been underspent as a result of there being no PA but the budget is underspent as a result of there being no PA, AND as a result of the funds being inaccessible in a managed account and with no opportunity being given to use the funds in any other way.

Shocking isn’t it? SDS Option 1 seems to be being systematically opposed at local level.

It absolutely is. I’m progressing now with a formal complaint and intend going down the route you have gone @Josh and insist on a DP into an account in my own name. I think that’s the only sensible way of ensuring there’s no abuse of power by the LA.
I have vouching for everything and am more than capable of managing the budgets without interference. I’m shocked at what they get away with and can’t believe how many professionals are dealing with SDS and really don’t know what they are doing. The lack of consistent advice has been astonishing. I’ve noted everything and also have a paper trail of relevant communications to refer to in evidencing the shortcomings. I’m prepared for it to take a very long time.

Best of luck with it. I am very happy to help out if you need it, just let me know.

You could try skipping a formal complaint and go direct to Judicial Review, but you might get rebuffed by the court. The court was very happy to grant permission for my petition, but I went through the complaints process first and then to the Ombudsman. If you like I can send you details of my correspondence with the LA and the Ombudsman. You might be able to use that as justification for skipping those steps.

Beware of time limits if you do go through a complaints process. If a formal complaint is unsuccessful, you have six months from that decision letter to take it to the Ombudsman, which is the usual next step if you are unhappy with a decision about your complaint. BUT!!! you have only THREE months from the date of the decision letter to get in your petition for Judicial Review. That means you have to be done and dusted with the Ombudsman well before the three month deadline for JR. In practice I’d strongly recommend preparing your petition and don’t wait for the Ombudsman’s finding, as it likely won’t be in time, and may well be nonsense anyway (mine was). So then you can send off the petition anyway, even if the Ombudsman investigation is ongoing.

EDIT: Representing yourself at Judicial Review is a daunting and potentially risky business, which I would never have attempted if I wasn’t absolutely sure I had a cast iron case. It would have been so much less stressful if I were able to get legal representation.