Contract with Local Authority

The SDS Forum
1

I’ve been reading a few of the threads about contracts that local authorities expect direct payment holders to sign. I think that the fundamental point is that local authorities have no power to create a contract which is at odds with the underlying legislation. The contracts cannot override the law.

So, for example, if the contract requires the return of funds held in a direct payment account which amount to more than eight or twelve weeks’ money then they must follow the law that applies. That means that they have to establish why funds have built up and they must explore ways for direct payment holders to spend the funds in other ways which will meet the agreed outcomes. This is detailed on page 57 of the statutory guidance. If local authorities do not follow the statutory guidance then legally they must provide a good reason why not.

It is even doubtful if they can reclaim the money just because there is a high balance on the account as this does not fall within the legislation. If anyone has found the section in the Act which allows this then I would be interested to see it.

So, if the contracts we are being asked to sign are in direct conflict with the underlying legislation, then they are invalid as they have no legal basis.

In my opinion local authorities are acting ultra vires in making up rules for us to follow which are contrary to the primary legislation.

A collaborative approach with Councils trying to persuade them to improve practices is all very well but they absolutely must act within the law and they must be held to account.

2

Similarly, if a local authority contract lists things which a direct payment cannot be spent on, this is also not lawful and therefore not enforceable by them.

The primary legislation and the statutory guidance states that direct payments can be spent in any way as long as the expenditure is incurred to meet the agreed outcomes. The guidance is absolutely clear and emphasises this point of law.

It would appear that local authorities are very reluctant to give direct payment holders as much control over their budgets as the legislation demands. This reluctance is contained within rules and regulations which are ultra vires and which need to be openly challenged by direct payment holders.