Why are Local Authorities refusing to allow someone (me!) to become PAs under option 1 unless they resign their power of attorney? There is a second PoA who runs the finances and contracts, there is no conflict of interest but the LA (Angus) has a blanket ban in place and will not lift it despite the wishes of the supported person (my Mum, 83). Under the Statutory Guidance I am allowed to become her PA. I am her chosen carer, I am a professional carer, I hold a PVG, I live next door! The local authority just will not budge. How do they get away with this and how do I get them to follow the guidance.
Hi @Karl, Iâm sure there will be people on this forum with experience to share on PoA issues, but just to give you a heads up that SDS Scotland are running an online training session on this topic on 8th August (11am-1pm), if you are able to attend it:
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Interesting but too late for me! I am being forced to resign my powers
or Angus Council will continue to withhold care for my mother.
Karl
Sorry to hear that you are in this position, Karl.
As you say, the updated SDS Act guidance states that: âWhile local authority systems of supervision must comply with the Regulations and be sensitive to potential conflicts of interest, these must not have the effect of imposing a blanket ban that forces supported people to choose between the role of Personal Assistant and holder of Power of Attorney in situations where that power is not currently being used to sign contracts or where a contract can be managed by a third party.â Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance - gov.scot (www.gov.scot)
As with many things, it comes down to how risk-averse your LA is and how great the need is locally for them to be flexible and to be willing to take a perceived risk. I did the training that I mentioned above and there were definitely different views expressed on this.
@Becs has mentioned using statutory instruments in relation to employing family members, but this is not something I have experience of. You could try contacting Civil Rights First for advice: Civil Rights First
@MarkieBoy Are you able to offer any additional advice?
Hi @Karl and @justinb ,
Thank you for highlighting this issue Karl and your further comments Justin, which are really helpful.
Karl, it sounds like youâve researched the SDS Statutory Guidance very carefully and understand what this says and what the intention of the Guidance is. I donât think I can add anything more to this.
There seems to be a couple of questions/issues to address here. Firstly, how do you get the Local Authority to apply the updated SDS Statutory Guidance in relation to the employment of Guardians and people with Power of Attorney and do this specifically in your case?
Secondly, as a related issue, is this having any effect on the ability of your mum to receive the support she has been assessed as needing? You mention that the Local Authority âcontinue to withhold care for my motherâ which is a concern.
From what youâve explained Karl, you have tried to have a discussion with the Local Authority to try and resolve this issue, without success. I donât know if you have received a copy of the Local Authority policy on this, but I would certainly be looking to make a request for this so that you can understand exactly what this says.
In terms of what you can do next, I guess there are a number of options available to you and your mum. You could consider approaching a local Advocacy service to ask for support to challenge their decision. Having an advocate for your mum, if she would like this support, would ensure that her views were clearly heard as part of any future discussions. Iâm also not sure if there are any Community Brokers working in the Angus area that could provide further support. @Anne-Marie Iâve copied in Anne-Marie from Community Brokerage Scotland who might know the answer to this question.
You could ask if there is an Appeals process or a way of asking the Local Authority to review itâs decision. If there isnât, then it may require a formal complaint to the Local Authority.
I donât know if youâve considered approaching any elected members such as your MSP? If you did, they may be able to request a meeting with the Local Authority where yourself, your mum and anyone else you would like to be there, could start to address your concerns.
I appreciate this is a difficult time and you would like to resolve this as soon as possible.
Whatever you decide to do next, it would be of interest to hear how things develop and when youâre able to come to some resolution of the issues.
Many thanks,
Mark
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Got an FOI reply. Angus Council have 0 PAs employed who also have Power of Attorney. It is, most definitely, a blanket ban. This may well be inline with the letter of the Law but is diametrically opposed to the Public Consultation led Statutory Guidance (2023) published on the Scot Gov website. This can only lead one to ask the following questions.
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Are ALL Scottish Local Authorities operating a blanket ban on PoAs becoming PAs?
1a. If not, who is acting outside the law?
1b. To whoâs advantage are the Local Authorities conducting the ban? -
When the Scottish Government conducted the public consultation on the Act to prepare the Statutory Guidance were they aware of the difficulties and contradictions faced by Local Authorities and Supported People in the interpretation of the Act?
2a. What were the Aims and Purpose of the Public Consultation?
2b. Are they aware that Local Authorities are ignoring their Statutory Guidance and claiming it is outwith the powers of the Act? -
Are the Scottish Government tacitly encouraging the Local Authorities to break the Law?
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Did the Scottish Government conduct a Public Consultation and prepare Statutory Guidelines knowing that they would be ignored?
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Is anyone trying to sort this mess out?
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Are the Public aware of this mess (yet)?
Hi Karl,
Many thanks for your post.
I think that you ask some really important questions, in terms of the application of the updated Statutory Guidance.
A couple of weeks ago I held a training sessions for our wider membership on this issue and from further discussion I became aware of some of the variation in the application of the guidance.
Since then, there has been some further discussion with Scottish Government colleagues in the Self-directed Support Improvement Team. They are actively looking at this at the moment and are keen to learn about local practise, so your post is very timely.
One thing that the Scottish Government would like to do is to identify examples of good practise which makes use of the updated SDS Guidance to support people to receive the support they would like and need. So weâre trying to gather further information to help support this.
I donât know if you are trying to arrange something yourself in relation to the employment of a Guardian or POA at all? If you were, Iâm not sure if you are in contact with the local Independent SDS Information and Support service provided by Dundee Carers Centre? You can find their contact details here: https://directpayments.org/
If there is anything else that I can do just let me know.
Many thanks,
Mark
@Karl There was some good chat on this here, in case you didnât see it: Using Appropriate Circumstances Agreements to employ POAs as PAs - Personal Assistants - SDS Forum (sdsscotland.org.uk)
In terms of the hierarchy of law, Statutory Guidance trumps local policy. If the statutory guidance is clear, it doesnât matter what the local policy is.
(Itâs an English page but the hierarchy is essentially the same in Scotland)