Midlothian Council agreement for Option 1 SDS

Legislation & Guidance
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Six months on since starting to receive SDS Option 1 direct payment, and having PAs in place, I’ve received a ‘direct payment agreement’ document to sign. It’s quite a lengthy document - so I’ve included a few excerpts below that I take umbrage with! My position is that these statements are not supportive of the statutory guidance and legislation, do not promote choice, freedom and control, etc. Before I go back and refuse to sign - has anyone else had something similar and have experiences to share?

Grateful for your experiences!

“I understand that Midlothian Council has a duty to monitor the standard of service purchased by me and I agree to provide all information and assistance necessary for that purpose, including consenting to the release of information held by third parties.” I’m not sure I should need to agree to a blanket release of all information from any third party, tell me what you’d like first!

“The support provided and use of budget must comply with any stipulations related to the use of budget and must meet the agreed needs and outcomes in the supported persons support plan and direct payment agreement. This may include anything else as agreed by the social worker which meets the supported persons identified outcomes and support needs and as identified in their assessment.” The guidance is quite clear the DP can be used in any way to meet the agreed needs (so far as it is legal etc) - should not need to be specified in the assessment; as long as the outcome is agreed

“PAYE, National Insurance and other Payroll records must be retained alongside timesheets or rotas indicating the days and times carers have worked. These must be made available as required for financial and monitoring purposes.” Seems extreme - financial audit documents are fine, but the timesheet and rotas seem excessive

“All PAs must undertake training appropriate to the tasks they are required to carry out. Costs for such training will be covered by the direct payment where identified in the support plan or authorised by the council.” Again, not very self-directed if I have to ask permission

“The direct payment allows for the statutory minimum entitlement of annual leave. Enhanced rates are paid for four public holidays. It is expected where feasible for PAs to take their holidays at the same time as the employer.” Is it for the council to specify the specific employment terms of the PA? I would argue not.

“Authorisation is required from the council for any periods of special leave over one week.” As above.

“If the supportive person has a planned admission to hospital, they will be expected to agree arrangements with their PAs to take annual leave during this period.” As above.

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Hi @MidlothianGuy

Why has it taken them six months to give you this?!! Well done for questioning the content of the agreement and not just signing it. A life lesson for all of us.

The DP agreement definitely sounds a bit heavy handed in its wording. I live in Perth and Kinross and the DP agreement here (at least for children and young people) is much less so. Something like the blanket release of all info from third parties does sound a bit ‘catch all’ but something like GDPR legislation should mean that they should only be requesting info that is relevant (and you could argue this on a case-by-case basis). The stuff around the use of the budget is linked to how much flexibility there is in the supported person’s support plan, so if the support plan is written well it should mean that this is less likely to be an issue. However, you are right to be asking these questions.

As with all things SDS and LAs, it’s about the balance between autonomy and accountability, and I would probably look to examples of how your LA actually operates in practice, which needs the benefit of other people’s experience from Midlothian. Do they actually keep such a tight rein on things in practice? If not, does it still feel important to challenge elements of the agreement? This may contribute to the greater good - and we all rely on people holding public bodies to account for the way they operate - but it is a personal decision for you to take.

It might be worth contacting someone like Lothian Centre for Inclusive Living (LCiL), who will likely have some experience of local policy/practice and might be able to offer some advice: Independent Living Support - Lothian Centre for Inclusive Living (LCIL) (lothiancil.org.uk)

Ultimately, you shouldn’t sign up to something you’re not happy with, but - as I’m sure you know - if you choose not to sign you will run the risk of losing your DP, so proceed with caution. It might help to get some form of legal advice before you decide what to do. You could try contacting Civil Rights First

Best of luck

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Hi, thanks for the reply. Sadly, Midlothian Council do hold a very tight rein and have provided countless factual inaccuracies in the past that I’ve had to challenge to even get a package in the first place. Likewise on GDPR - have advised they cannot locate various documents of evidence I have provided them, etc. So I’m hesitant to offer any freedom!

The assessment is quite poorly written and a complaint is making its way through the system regarding this - so I’m having to go through everything particularly carefully right now!

I’m waiting for a reply from LCIL, but thanks for flagging CRF too - I hadn’t come across them.

Interesting point you raise on the risks of not signing - I’d propose that not signing up to their internal agreement doesn’t remove my entitlement to Option 1. Although, I’d rather not get into that argument with the council :joy:

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I’ve found that these T&Cs are drawn up by lawyers, and are in practice, then instantly forgotten by everyone else. It makes sense to me to just sign the damn thing rather than worry about it, and then simply behave with ethical considerations foremost. Transparency is important and there is always a slight chance of a heavy auditor getting stroppy, so we tend to keep all the records we can, ‘just in case’.

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Hi Midlothian Guy,
Thank you for your post on the SDS Forum. I think you have highlighted some really important issues in relation to the Direct Payment Agreement in Midlothian.

I wanted to mention that there is due to be a 13th SDS Standard published soon, which covers Direct Payment Agreements. It might be helpful to see what this says and refer to it in any correspondence with the Local Authority. Even though the Standards are not statutory in nature, every Local Authority has agreed to implement them (via COSLA). So they are a really useful resource to refer to.

You can find the full details of the updated SDS Standards here: https://hub.careinspectorate.com/media/5793/sds-framework-of-standards.pdf

Social Work Scotland are leading on the work to develop the 13th Standard and I’ve copied Donna Murray in to this post as she might be interested to hear about your experience.

Many thanks,

Mark
@DonnaMurray

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Hi, thanks for sharing this information. That’s helpful. Given I’ve waited six months for the agreement, I feel quite safe to stall signing - do you happen to know when the 13th standard is due to be published, so I can consider it against this agreement?

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Hi Midlothian Guy,
No, I’m not aware of the date of publication but I believe it is due to happen fairly soon. If you sign up to our mailing list for emails (from our website here: https://www.sdsscotland.org.uk/ you’re likely to receive an update on this and other developments as well.

I’ll also try to remember to post details here when I receive them.

Many thanks,

Mark
@DonnaMurray

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I think you are doing the right thing by asking for further clarification on the points in the agreement that you do not agree with. It’s shocking that you haven’t been given the agreement and the information before now.

I’m currently challenging my LA at the moment regarding the handling of my SDS package. A lot of decisions being made by the LA do not appear to fit with the legislation and guidance at all, which seems to be commonplace. There has been a worrying lack of consistency in information that I have been given by professionals involved, some of whom do not even seem to be aware of how SDS is intended to operate. I’ve heard of a number of cases now, where policies and procedures of the LA are actually limiting choice and flexibility rather than providing the supported person with the freedom and control they are supposed to have to manage their support.

I think you should push for the answers you need. I wouldn’t sign anything that was unclear to me. Good luck!

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Have you asked them what happens if you refuse to sign?

Statutory duties to meet the assessed needs of individuals don’t magically go away if you don’t sign a contract. But maybe you have to anyway for some reason.

I’ll have a look at the guidance…

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I got a very vague, non-committal answer-that-doesn’t-answer-anything, about the contract being their process etc. I’ve scoured the regs and guidance, both for SDS and Direct Payments, and there’s nothing I can see on agreements. I managed to access some free legal advice through my Union, who were of the same opinion.

Since my original post, worth highlighting that LCIL came back to say that if I don’t sign, Midlothian can take the DP away - but couldn’t advise why, or on what authority.

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I looked at legislation, regulations and guidance. Not signing a ‘contract’ is not a reason to withhold or cancel a direct payment as far as I can tell. I made a thread about it on here. I also don’t see what role a ‘contract’ has in delivering a statutory service. It’s not a free agreement between two equal parties.

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In my view it is a contractual arrangement and a free one at that - you do not have to accept it,
A contract offers some recognition of reponsibilities on both sides.

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I suppose the question is, if you don’t accept, then what? No statutory service delivered?

The regs make it very clear when a DP can be denied, and this isn’t one of them. So regardless of the merits, or lack thereof, for a DP Agreement, it doesn’t seem to have a legal basis as a gatekeeper to SDS option 1.

When I consider it to other statutory services, such as refuse collection, it does seem odd - if the council sent me a ‘contract’ to put my bins out on certain days, and I didn’t sign it, they wouldn’t be relieved of their statutory responsibilities. I still have to follow the rules - namely, putting the bins out - but I don’t need to sign a contract to that effect.

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I suppose it might be a bluff. My contract is out of date. If they want me to sign another one I will refuse and let you know what happens. They can’t not provide the service. They have a duty (under section 12 of the Social Work (Scotland) Act 1968) to provide assistance to those in need of it. And they have a duty to assess needs (s 12A). If the needs meet the local eligibility threshold, then the Social Care (Self-Directed Support) (Scotland) Act 2013 kicks in. Four options are offered, and we all know the story from there. The LA cannot contract their way out of this duty. If someone refuses to sign a contract, the full force of the legal duty to meet eligible needs is still in place.

Yes, 100% correct in my opinion. I’m really disturbed by the fact that @MarkieBoy, as a representative of SDS Scotland (a recognised public authority on SDS), disagrees. He said in the thread I started that a DP might conceivably be withheld if a DP user refuses to sign. This is really really worrying.

Yes, I was thinking along exactly those lines.

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It’s coerced. “You need support do you? Ok, but only if you sign this contract first.” I was coerced. I signed under protest because my son desperately needed support.

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Just spotted the thread you reference here, thanks for flagging. Appreciate your views as always, Josh!

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Nobody can force you to get help - unless you are a major health threat to others or at imminent risk of self harm due to severe mental illness - this is one of the oldest dilemmas in social work - some very old or vulnerable people just prefer to struggle on by themselves - and that is their right. Like say a hermit who chooses to live in a cave on some remote island - that is a lifestyle choice, and must be respected.
To my mind if you want to get money from the state to employ PA’s, then you need to demonstrate the ability and willingness to manage that resource responsibly and legally - and respect the fiduciary responsibilities to the taxpayer - its not like Santa at Christmas handing out candy canes, is it?

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The coercion is not about accepting help, it’s about signing the agreement. I agree you don’t have to accept help.

You demonstrate your ability in the doing of it. The presumption is that people can manage their direct payment.

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