Our son has profound learning disabilities with multiple health issues, including Type 1 diabetes requiring monitoring and insulin injections.
Since taking onSDS Option1 more than 15 years ago, we have always paid just slightly more than the minimum wage to attract staff and reflect the complexity of care they provide. We have done this by utilising our SDS budget by caring for our son over Xmas , holidays etc which frees up some budget. The LA have always known the rate we pay and have never objected or sought to recoup on such lines.
However, in a financial review in May, this changed. They now state that they only pay the hourly rate of £12.60, the minimum recommended by the Scottish Government and any excess above that has to be paid by the disabled person from their own funds. This would equate to approx £4000 a year to be paid by our son. If we bring him home during Xmas etc, they will reduce his budget accordingly.
The DP terms are also revised to take such matters into account, without any discussion with us.
The LA are unwilling to change their stance on these issues, nor will they demonstrate where the legislation is that gives them authority to set a maximum pay rate.
Can anyone advise please?
This comes up a lot and needs figuring out. I haven’t thought about the law on this in detail, and it hasn’t significantly affected me, but this issue does need looking into. As you suggest in your question to the LA, it’s unclear if there is any lawful basis for this restriction. I’ve read the statutory guidance and I don’t remember it being covered in there.
I have spent this morning reading the 2013 SDS Statutory Guidance along with the2024 Framework of Standards.
I could find no mention of any restriction on maximum rate of pay for a pay, nor any mention of Direct Payment recipient being obliged to pay the extra over the minimum hourly rate set by Scottish Government.
The 2013 guidelines, whose rates of pay are updated each year by the government , state in Section 8 that
‘Where PAs are already paid more than the £10.50 per hour, this funding (ie uplift) should be used to increase pay above these levels.’
The 2024 standard12, Access to Budgets and Flexibility of spend’ meanwhile at 12.4 narrates that ‘People can be flexible about how they spend their budgets to meet their agreed outcomes’.
There are also Standards and guidelines relating to transparency, which our council seems not to follow.
I also found mention of a decision by the High Court in England referring to Article 14 of the European Convention on Human Rights which stated therein that ‘1) severely disabled is a protected status under Article 14.’
It remains to be seen whether a complaint to the council of breach of SDS standards and guidelines , along with a claim of disability discrimination will be successful.
But the issue of councils setting a maximum pay rate for PAs , without consideration of the intensity of care and the flexible use of a budget to pay a higher rate, is one that needs looked at. All to often councils act in a bullying manner, setting their own rules, whilst ignoring statutory guidelines and legislation and these actions need to be robustly challenged
Here is a relevant consent order from England, which confirms that LAs in England may not insist that budget holders can be forced to pay minimum wage.
“(11) Ground 3. ““Unlawfulness in demanding that the claimant cut rates of pay for support workers for Yo Dunn and Jamie Fowler to minimum wage and setting their personal budgets at a level based on paying minimum wage, without regard to the actual market conditions and specific needs of the adults with needs for care and support in setting the personal budget; without regard to the sufficiency of the personal budget to meet the assessed needs, as required by s.25(6) CA 2014 and the guidance.”
a. The decision the subject matter of this ground is the decision communicated in a letter from the Defendant dated 4 June 2024 to require the Claimant to reduce rates of pay for personal assistants
b. The Defendant’s position is that the application is premature because it is currently reviewing the care and support needs of both the Claimant and the First Interested Party. It may therefore be that this review exercise resolves the Claimant’s concerns, in which case the application is academic and unnecessary.
c. However, given the way in which the decision challenged was communicated, and that the Claimant has identified what she says is something of an inconsistency in approach between that taken by a social worker and that taken by the Defendant’s team dealing with direct payments in communications with the Claimant, it is at least arguable that there can be no real assurance that a further care review will, in fact, properly reconsider the decision challenged so as to render the Claimant’s challenge academic.”
to minimum wage in relation to the care and support of the Claimant and the First Interested Party and to set their personal budgets at a level based on paying minimum wage.
(12) The defendant local authority accepts that the wording of its current standard letter could cause confusion including regarding the following:
• that the local authority requires them to reduce rates of pay for personal assistants to the minimum wage;
• that the local authority sets or intends to set their personal budgets at a level based on paying minimum wage without regard to the sufficiency of their personal budget;
• that they would be responsible for meeting the costs of any higher pay rate from their own personal funds regardless of whether the local authority has set their personal budget at a level sufficient to meet their assessed eligible needs in accordance with the Care Act.
The defendant local authority accepts that each of those assertions could be inconsistent with s.25(6) read with s. 9(4) CA 2014 and potentially an unlawful fettering of its discretion.
(13) Therefore, the defendant local authority withdraws the relevant paragraphs of its standard letter, sent to the claimant on 4th and 6th June 2024.
(14) Further, the defendant local authority undertakes to create a new letter by 5pm on 11th June 2025. The letter will make clear that “The amount of the direct payment is derived from the personal budget as set out in the care and support plan, or support plan, and thus must be an amount which is sufficient to meet the needs the local authority has a duty or power to meet.” (CA Guidance 12.25)
(15) For the avoidance of doubt, the defendant local authority is clear that it does not require the claimant to reduce rates of pay for her PAs or those of either interested party.
(16) On the basis of the defendant’s acceptance of the above, the Claimant agrees that this ground of the claim has been conceded in full and consents to withdraw this ground of the claim.”
“Budgets are calculated based on an assumed hourly rate. If you pay more than this hourly rate, then you will not be able to offer the number of hours necessary to meet the assessed needs. But we must offer an amount sufficient to meet the assessed needs. Therefore we are entitled to insist that you do not pay above the agreed rate.”
I would disagree with that argument, but I think the argument has some force.
By covering care over Christmas, holidays , illnesses, we free up part of the budget to cover the extra pay . So in effect, we are using the Direct payment flexibly , which is encouraged under Guidance/Standards. In effect, the amount we receive is enough to cover our pay rates. This has always been the case.
Indeed the revised Direct Payment form which is now given out by the council has a term that if the outcomes can be met by the budget, then the council ‘must’ agree to this. Calls into question the legal definition of ‘must’!
Yes exactly, I see setting your own rates of pay as just another way of flexibly meeting the outcomes. Like paying more for the right person, and paying their mileage etc. I’d be interested to see a copy of the Direct Payment form if you have a blank one.
This is a really frustrating position that your LA are taking and is completely against the principles of SDS. A budget should be exactly that and you should have discretion for making decisions about how best to use this to meet your son’s needs, which is what you are doing. Are your son’s care needs being met? YES. Are you costing the LA more money? NO.
The new SDS Standard 13 on ‘Direct Payments for Employing Personal Assistants’ states that:
● PA employers can exercise choice and control over how they use their funding to achieve their agreed outcomes.
● PA employers can use their funding flexibly to recruit the support they require in ways that suit their individual needs.
Unfortunately, despite the new standard, the terms of DP agreements etc. are still very variable between different LAs and there is only guidance on how they should do things, i.e. there is nothing that specifically says they can’t do this, as far as I’m aware. It sounds like there has been a change in local policy, but why they would want to disrupt things when they are working (which I assume they are) is beyond me.
Do you know exactly why this decision has been made? There is a perfectly good arguement that more complex needs that require more specialist support should be funded at a higher rate IMO. This does happen in some areas and can also be the case for more rural/remote locations when it can be difficult to get carers. Also, the PAs are established and (presumably) doing a good job for your son.
I would be asking for a clear reason for the change to their policy (which you have probably done), especially when it has been working well for your son. If you can’t afford the additional cost yourselves, could the change mean that you have to make the PAs redundant? Could this have legal implications?
It might be worth contacting a local councillor to try to get clarification on the policy that is being applied and why you are being told that your son’s social care delivery has to change against your/his wishes. If you don’t get anywhere with the LA, you could try contacting Civil Rights First, who specialise in this type of thing.
Hi Josh, we were away last week so didn’t get a chance to reply. If you send me a note of your email, I’ll send you a copy of the DP Agreement we have plus the proposed new one. Don’t want to make them public
Hi Justin, Thanks for your reply. We have challenged our LA on their decision but are not getting a clear answer(as usual!).
Our next option is to put in a formal complaint to them, which we have drafted, following extensive research on our part relating to SDS Act, Statutory Guidance and the recent Guidelines. We have listed various parts that they are breaking/ignoring.
Once we have their response, and depending on what it is, we will move onto the next steps . In the meantime, things are continuing as they have always done.
And yes, redundancy is something that may have to be looked at, which will be very expensive…..
I have been in dispute for more than a year with LA
Would take forever to detail
However latest issue
My husband who has Parkinsons together with Executive functioning disorder disorder and other health issues had a functional crash last week He was unable to stand or walk
I contacted SW ( we are in dispute amongst other things about contingency use) In view of the dramatic change in his condition I requested an urgent reassessment After some debate this was granted
The SWA who is dealing with this will not be back to work until next Monday so I’ve been informed
The assessment cannot be initiated until then
Regardless of the outcome of the assessment the budget will not be increased
Reason He has reached the ‘cap’ for his age group in community care
Options : fund any extra care required ourselves
Residential care I explained that he cannot be left unattended and was told he would be placed in a specialist facility with 24hr care I asked if he would get 1to 1 care as he does at home refused to answer
I do not believe the facility exists if it did the costs would be astronomic
I believe both those statements to be unlawful
Before assessment even starts a financial cap is applied From my understanding it is not permissible to impose a blanket cap
All assessments should be needs led This statement clearly shows that it will be finance led
Residential care should never be used as an alternative to community care unless all avenues have been exhausted unless the person wants that He has said clearly that he doesn’t
It has constantly been raised I believe as a threat
A ‘cap’ isn’t a thing in law as far as I am aware. There is an assessment of need, needs are compared to eligibility criteria, and then support is offered at a level that meets those eligible needs. There’s no ‘cap’ I am aware of. Assistance must be ‘suitable and adequate’ according to s 12 (1) of the 1968 Act. It’s vague, but presumably must be interpreted to mean ‘suitable and adequate to meet the assessed eligible needs’.
I have been in dispute with my local authority for 2 years re the ‘cap’My husband has a progressive neurological disease After 4 years without any reassessment The new assessment began with the statement
‘This is the ‘cap’ for a person over 65years living in the community. Any package of care will need to be delivered within that financial ‘cap’
This was before any assessment took place
An OSP was finally completed after 18 months during which I was denied a carers assessment ( because I challenged and refused to sign the OSP) denied access to ILF funding for the same reason
An assessment was completed and costed above the ‘cap’ it was rejected and staff who completed the assessment were instructed to rewrite it to meet the ‘cap’ I was denied copies of both versions both before and after they were presented to senior staff and were rejected
I was forced to sign eventually to preserve my husbands care I signed adding a note to the document relating to the circumstances under which I signed
This is only a thumbnail of 2 years of challenge and brick walling from the LA
The result is that assessed need remains unmet
The LA accepts no responsibility
Considerable risk to both myself and my husband is identified and unmitigated
I am forced to provide 131 hrs of unpaid care a week
Their solution
Pay for extra care from your own funds
Use carers allowance to supplement
Nursing home
The OSP was finally signed in May
My husbands case has not yet been uploaded to the new system
Still denied access to ILF funding
Complaint submitted to the Ombudsman it will be 7 months before they can look at it
I am 74 years old
Unfortunately, and shockingly, there is no free tribunal you can access to address beaches in social care law. The Ombudsman cannot decide matters of law, but they might be able to do something, but in my experience they aren’t much use. The only way as far as I know to get the law enforced is by Judicial Review at the Court of Session. You may be able to get legal aid. You’ll need to hurry because of the time limit of 3 months to get the petition in from the date of the decision, act or omission that you are challenging.
You can approach law centres at universities. RGU has one, for example. You could try Legal Services Agency.
You are almost certainly eligible for a care package in your own right under the 2016 Carer’s Act as an unpaid carer, but that’s another fight in itself.
Hi Josh
Thankyou for your reply
Unfortunately this has been going on for 2 years with IMO multiple breaches of SDS law so probably out of time for all of them
We are not entitled to Legal Aid and all the
Free agencies in our area are oversubscribed
We did seek help from our MSP who was useless
This issue is a national disgrace with LAs all over Scotland interpreting the law unilaterally and with no consistency
No amount of providing information sections of the Act or reasonable argument makes any difference
Complaints to the LA are a farce I’ve had 3 complaints all gone to stage 2 during which I was not contacted from initial complaint to decision made
No opportunity to contribute in any sense no information about the process or who was involved and no opportunity to meet to discuss the issue
Clear breaches of their own complaints policy
I am at the end of my tether and the lack of empathy is astonishing
As an ex SW manager I am disgusted by the organization I was once so proud to be part of
What can we do about these blatant and multiple breaches of SDS law ?
That’s a very good question. While it would be great to get cases into court to get the law enforced, this is completely beyond the ability of most service users to do - they have enough trouble with day to day life without taking their LAs to court. I think a social care tribunal is an obvious thing to have - employees, those subject to mental health orders, children with ASN, and many others, all get tribunals to appeal decisions free of charge. But this is a political matter - persuading the government to legislate to create another tribunal, or perhaps add it to the remit of the First-Tier Tribunal. The obvious thing to do is get a bunch of relevant organisations to work together to lobby for one. Would that be a good idea?
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