Do you have to sign a contract for SDS Option 1?

Just to add my tuppence to this discussion. The way that DPs are paid and underspends are clawed back clearly varies wildly between LAs. We are “lucky” in Perth and Kinross that the connections between SW, SDS team and finance do not seem to be very tight, so people end up with a lot of flexibility. We have an equivalency system like many, with DPs paid into designated bank accounts every 4 weeks. I have seen very few instances of people have money clawed back - it does happen, but there is no timeframe or system of doing this automatically so it is presumably at the request of the LA - and there are a lot of people sitting with considerable amounts of money in their SDS account. This is fine if they are able to spend it, but it does also cause people quite a bit of stress, so it’s a double-edged sword in some ways. Sadly, because people do not feel empowered to be responsible for using their budget, they can feel a bit “rabbit in the headlights” about spending the money.

I suspect that most DP agreements are old documents designed to cover all bases for the LA and that the are not necessarily specific to current policy/practice. That certainly feels like it is the case in P&K. For a lot of people, that will be absolutely fine, as long as they are receiving their money. I haven’t heard of another LA which adjusts the level of the DP, but that would certainly change the game here.

Yes, in reality I don’t think this is an issue for many people, as they are not supported and empowered to be using their DP flexibly in the first place! I just dug my most recent email from Midlothian when they do their financial accounting on my DP. Figures changed for privacy.

PAYMENT DUE
Payment: £2000
Plus contingency: £2000
Less balance remaining in bank a/c £3000
Payment Requested: £1000

You’ll see how this effectively claws back the funds without any payment being made.

Hello folks, and merry Christmas!

After a lengthy complaints process, I finally have the council’s final response to these matters on the recoupment of underspend. To summarise - the council’s approach is to avoid an underspend building in the first place, by topping up the DP account by a flexible amount based on the funds available when a bank statement is sent in for auditing purposes. I complained that these funds should not be recouped by finance without following the Statutory Guidance, Framework of Standards (engagement with a social worker, etc - all quoted and referenced in the complaints letter) and asked for the funds that have not been paid to be transferred to me.

The council have stated:

"You have a direct payment based on an assessed need which is agreed at panel.

"On a 3 monthly basis we ask to see the direct patment bank statement and any associated paperwork expenditure. We reconcile the account to ensure the associated expenditure within the account and the expenditure paperwork balance.

"Following this, a request is then made to ‘top up’ the balance. The top up will be the difference between your payment, plus contingency, less the existing balance in the account. Your account will always be topped up to meet the threshold of your direct payment.

"Based on our calculation of hours used, there has not been an underpayment to your account.

“I do not uphold this point of complaint.”

Now, I would say that this is all semantics - whether you ‘top up the account’ by a variable amount to account for unspent funds, or you request the funds are paid back, the effect is the same - the council recoup the funds one way or another.

I’m looking into my options now - I’m recovering from major surgery, trying to recruit another PA for my care, and also have two separate complaints going on with the service, one with the ombudsman and one not yet formalised to a complaint but clearly heading that way. Civil Rights First have advised of a very lengthy wait for support right now, so I might not have time to go down the Judicial Review route.

So, my question: in the absence of support for a Judicial Review, has anyone come across any case law, guidance, or other handy examples regarding this situation I could put to the SPSO?

Many thanks!

Well done for complaining!

I haven’t read your complaint, but it sounds like they may not have actually understood your complaint, or are trying to not engage with the logic of it.

Did they give a breakdown of their calculation?

Have you requested that they change the way they work in your case and just give you the money as a traditional direct payment?

What was the date of their final response to your complaint?

Are you willing to represent yourself at JR?

The deadline for the SPSO is 6 months from the decision, the deadline for JR is three months. If you send of the complaint to the SPSO straight away they may still not give you an answer before the three months for JR is up, and if they do it probably won’t address the unlawfulness of the LA’s decisions, as only a court can do that. So I strongly recommend drafting the JR Petition so it’s ready to go. You could also ask the court to extend the 3 month deadline to give the SPSO time to respond if you want.

SPSO pros: it doesn’t cost you money and you don’t have to go to court. Cons: they cannot reduce a LA decision and declare it unlawful, only a court can do that as far as I am aware.

Judicial Review: Pros: here you can get a proper remedy, you can get the decision reduced (quashed) and a declaration that the decision was unlawful, and a clarification on the law. This will help you and potentially many others. Cons: Representing yourself is scary, getting representation from a solicitor and then getting an Advocate is tough, and it may cost you money if you lose. I might be willing to act as a lay representative for you, as it seems from what you have told me that this may be a strong case. I can’t charge any money as a lay representative, but you may still be liable for their costs if you lose.

Thanks, Josh. I’ll hazard a guess it’s a bit of both - there’s some very fundamental misunderstandings about SDS within the service. I’m being vague here as this is a public forum, but I’ll message you.

If I’m reading it correctly, it sounds like the issue here is the timeframe within which LAs choose to audit direct payment accounts, and there is no standardisation on this, as far as I am aware. In P&K, we are asked to report income and expenditure every month (unless it is for a one-off payment), but underspent funds appear to be recovered in a fairly ad hoc manner on a case-by-case basis. So then the question is, is it reasonable for someone to have to spend their funding within a certain length of time, i.e. 3 months, for it to be considered to be meeting your assessed needs, especially if these fluctuate from week-to-week or month-to-month?

@MidlothianGuy I don’t know if it will help your case, but you could do an FOI request to all LAs in Scotland to enquire what their policy is on recovering underspent funds. It won’t cost you anything other than time, but I appreciate you may not have this; WhatDoTheyKnow - Make and browse Freedom of Information (FOI) requests

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