Hi i am a full time carer for my son who receives an SDS budget.My son previously used the budget for a PA due to ill health over the last 18 months his support plan was changed to meet his outcomes.He no longer uses the services of a PA and the budget was agreed to be used for short breaks with me for respite,aswell as hydrotherapy session and an activity at the weekend.On the basis of the changes his budget was increased by £6000 as in previous years i know there will be an underspend which i have to return to the council they will contact me when this is calculated and i return it .My questions regarding this is should they discuss the underspend options rather than just informing me of what to return.As a carer can any of the SDS budget be used for the carer if a carer assessment was carried out.At the moment social worker has left and my son hasn’t been allocated anyone else.Apologies if this isn’t very clear as my husband and i were joint carers and he passed away very suddenly and i am trying to take on everything .I am in Scotland .
Thankyou in advance.
Hi Laura,
I’m afraid the answers to your questions depend on how things are done in your local authority. You say you live in Scotland but every local authority social work/HSCP have their own rules and frameworks regarding how your SDS budget is calculated, how it should be spent, and how it is paid/recovered, which makes it very hard to give general advice on these things (frustratingly!).
How do you know in advance there will be an underspend? Has the budget not been calculated to meet your son’s needs/outcomes? Your son should really have a support plan that accounts for the budget that he has been allocated to minimise the chances of an underspend.
If you do a search for ‘underspend’ on here, you will see that it is highly unlikely that the council will lead any sort of discussion on your options. I’ll try to post some links to previous chats, but the best advice I can give regarding using underspent funds is to put together a proposal for spending them (with costs and reasons why it will meet your son’s needs) and put this to the council. But ideally you make a plan that will spend your son’s budget ‘upfront’ so you don’t need to worry about paying things back: Your Support Plan - The SDS HandbookThe SDS Handbook
Regarding respite, your ACSP should state whether you are entitled to any funding for respite. Sometimes this could be included in your son’s funding/package of care and this should be clear to both of you, but often it is not. You may be able to use his budget for something that will offer you respite as well, which is often the approach that social workers will take. I would hope that the duty social work team should be able to answer general questions on your son’s care package, even if he is between allocated workers. If you are not getting anywhere, then it’s worth trying to contact the relevant team lead.
If you are trying to get your head around this for the first time, maybe you could get in touch with your local SDS advice service and/or carers centre, who should be able to give you the benefit of their local knowledge. You can search here: Find Local Information and Support - Self Directed Support Scotland
Also, if you are happy to post your local authority area on here, there might be someone from the same area that can give you more specific advice than I can.
I hope you manage to get some answers. Please feel free to post any further questions or updates.
Best wishes
A couple of recent threads that might be helpful:
Unspend SDS funds - Budgets - SDS Forum
How to use underspend - Budgets - SDS Forum
Thankyou very much for uour help .
It’s true they all have their own policies. Nevertheless it is primarily national law that governs the nature and effect of a direct payment, not local authorities. In law, you can spend your direct payment to meet your agreed outcomes. The LA may not, as far as I am aware, make their own rules about when they may recover an underspend. An underspend may be lawfully recovered if the DP ends for some reason, or the money is used for some other purpose than pursuing the agreed personal outcomes, or if it is used to commit crimes. Otherwise I don’t think they can touch it. I’ll keep looking to see if there is a section in the 2013 Act or the 2014 Regulations that confers a power on the authority to make their own rules. If anyone knows where such a provision is, please let me know.
On the concept of an ‘underspend’. What is the definition of that? It implies that there is money in the account that is not needed, but how could the LA possibly know that without conducting a lawful review of the case, or at least having an actual conversation with the DP user? Calling it an ‘underspend’ is begging the question - prejudicing any review by assuming the outcome before relevant information is considered. Of course, any amount of money in an account is, by definition, unspent (or it wouldn’t be in the account!) but ‘unspent’ does not mean ‘unneeded’.
The answer is absolutely ‘yes’, they must discuss it with you. The statutory guidance is pretty clear on that if I remember. I can’t remember the page number off hand. Maybe 57.
Seeking repayment of direct payment funds
Depending on the circumstances surrounding any decision to terminate a direct payment, the authority may need to decide if it is appropriate and proportionate to seek recovery of unspent funds. Any such effort should include the social worker and should not be undertaken without clear communication and discussion with the supported person and/or their representatives, and potentially a review or reassessment which can consider whether any part of the unspent resource can help achieve their outcomes in a different way.The authority should also consider how to recover unspent budget if the recipient dies, including the possibility that before their death the supported person might have incurred liabilities or received services which should legitimately be paid for using the budget. There may also be occasions where additional funding is required to settle liabilities in full.
In addition, the 2013 Act enables the authority to require some or all of the money they have paid out to be repaid if the authority is not satisfied that it has been used to secure the support to which it relates.The authority may also require repayment if the person has not met any condition which the authority has properly imposed or have been imposed by the regulations. The authority should take into account hardship considerations in deciding whether to seek repayments.
(my bold)
Yes, pg 57. So we need to find out what conditions a local authority can ‘properly impose’. I’ll look at regulations. But even if they can (which I doubt) they at least have to have a discussion with you, and there is absolutely no need for you to be bullied into accepting that unspend funds are not needed.
If you have a carer’s assessment, and you are found eligible for SDS support, you would be offered a separate care package, which you could choose be be delivered as a Direct Payment, and you could obviously spend that to meet your needs. But you can’t straightforwardly use your son’s budget to meet your needs, your son’s budget must meet his needs. However I do know that some Option 1 care plans include respite as one of the agreed outcomes, in which case using the budget for that would be fine (as @justinb points out). It’s all about what’s written in the ‘Personal Outcomes’ section of the support plan. You should have a copy of the support plan. If you don’t get it off your Social Worker. If there isn’t a support plan, the LA have screwed up and need to write one with you.
OK, here’s section 15 of the 2013 Act:
15Power to make further provision about direct payments
(1)The Scottish Ministers may by regulations make further provision about direct payments.(2)Regulations under subsection (1) may in particular make provision for or in connection with—
(a)specifying descriptions of person who are ineligible to receive direct payments,
(b)specifying circumstances in which a local authority is not to be required under section 5, 7 or 8 to give a person the opportunity to choose—
(i)Option 1 of the options for self-directed support, and
(ii)so far as relating to that option, Option 4,
(c)specifying the circumstances in which a local authority may require a person to contribute to a direct payment,
(d)enabling a local authority to assess or reassess a person’s ability to contribute to the cost of securing the support to which a direct payment relates,
(e)specifying the ways in which direct payments may be paid or repaid,
(f)specifying circumstances in which a local authority may, must or may not terminate the making of a direct payment,
(g)specifying circumstances in which a local authority may pay all or part of a direct payment to a person other than the person to whom the direct payment relates,
(h)specifying descriptions of person to whom direct payments may not be made under paragraph (g),
(i)specifying descriptions of person who are prohibited from providing support to which a direct payment relates other than in such circumstances as are specified,
(j)specifying conditions which must be satisfied by persons before they may provide support to which a direct payment relates.
This specifies what ministers can make regulations about. Subsection (e) looks like it might give ministers the power to make regulations which in turn might give local authorities the power to make policy about recovering unspent funds. But it’s not clear that’s what that section means. The 2014 regulations do talk about circumstances in which a DP may be terminated, but I can’t see anything in there either giving powers to local authorities to recover money merely because they think it is ‘underspent’. So I still maintain that there is no lawful basis for local authorities to put their hands in the pockets of DP users to claw back money for no other reason than that there is unspent money in the account!
Please prove me wrong if anyone disagrees. 
Hi Josh
Cannot thank you enough for mailing all the information.
So much going on just now,not helped by not having a social worker for advice.
Last year when there was an underspend which was accrued due to my sons ill health and him beinb unable to meet his outcomes I asked if it could be used to purchase a hot tub as part of his outcomes was to have short breaks at lodges with the use of a hot tub to help with his health as he suffers from hypotonia which is a symptom of his brain condition.Also his support plan outcome is to attend private hydrotherapy again to help with the pain he suffers.The hot tub has been proven to really help and this was noted as being a real benefit at his review.
Social worker came back and informed me that if the hot tub was approved it would be at a cost of £8000 which the budget could well cover but they wanted to take £8000 from the budget every year.
I had to decline the offer as Lewis isn’t in receipt of a large budget and it concerned me that if it was cut at anytime he wouldn’t have enough to meet other outcomes.Aswell as £8000 every year I would be responsible for maintenance etc which would be fine but not £8000 from a budget every year.
Feel I don’t always get right information from LA as year before asked If budget could cover small outdoor shed to promote independence which is stated in support plan was told no then told by another duty officer he should have got it.
Sorry going through a very difficult time with all this really appreciate your time .
That sounds blatantly unlawful to me considering the circumstances at the time and the reasons for the accrual of funds. Unfortunately challenging LA decisions it takes time and energy and may involve doing a Judicial Review which is a pain in neck. Sometimes a formal complaint works. I can help you write one if you still want the hot tub and you have the money in the DP.
Thankyou for reply and cannot thank you enough for the support you have given me.
I will email you tomorrow regarding the hot tub as it is getting late for uou.
Thanks so much.
No probs. It’s the lawlessness that drives me up the wall. I don’t mind tough decisions, we all know LAs have no money, I just wish they’d follow the rules.
Hi
On the advice you have given me I know they definately have not followed the rules and like you that makes me so annoyed.
Lewis direct payment is due a review on March (whether it happens then is unlikely) but when the review comes you have given me invaluable information.
I will have many things to discuss,I have written down a lot of the points and this will help so much.Would it be ok to message you at a later date when review is completed if i need your help with complaint ?
Once again cannot thank you enough you have helped so much.
Laura .
I might turn out to be wrong! The trouble with Social Care in Scotland is that there isn’t much case law with respect to direct payments. This is unsurprising as disabled people in need of support tend not to have the time energy and money to go to court, or even complain. And Local Authorities avoid going to court by giving people what they want in individual cases while maintaining their unlawful policy for everyone else. That’s what happened with me.
Anyway, making a formal complaint is free and entails no risk. If the complaint gets knocked back, you can go to the Ombudsman, which is also free. No risk so far except a bit of time and stress. If the Ombudsman were hopeless (as they were in my case) then there is the decision to undertake a Judicial Review. This is when it starts costing money. I managed to get through the first few stages of the process after which the LA gave me what I wanted, and the court didn’t send me a bill so I was very lucky. Of course, if you get through the whole process and win, the idea is that you get most or all of your costs back from the loser.
Sure, no problem. Very happy to discuss. It helps me figure out the law as best I can if I look at specific cases.
Underspends are not designed into the system but they do happen for all sorts of different reasons, often due to periods of illness (as you say) or not having staff. Many people accrued underspends during Covid-19 and I think there was a more relaxed approach taken to how people could use their funds as a result of this, but the guidance implies that it is anticipated that LAs can/will recover these “in line with local contractual arrangements only after efforts have been made to establish – with the supported person, unpaid carer and the social worker – the reasons for the underspend” (under Section 7: Budgeting, Charging, Commissioning and Procurement). Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance - gov.scot
I think your experience makes it clear the importance of having decisions (and reasons for them) in writing, so that they can be held up to scrutiny. Why would a one-off expense such as a hot tub need to come out of your son’s budget every year? It doesn’t make sense and suggests there might be some confused thinking on the part of the social work staff, so I would want an explanation for this. Social workers (and others) do sometimes get tied in knots around SDS, especially as there can be mixed messages coming from senior staff.
It’s just a suggestion, but in preparation for your son’s review, you might want to do a review yourself, looking at your son’s current package, how well it is meeting his needs/outcomes, what you have paid across the year and a plan of what you intend to use the money for in the year ahead. There’s a support planning workbook from In Control Scotland that you might find helpful: Support Planning | In Control Scotland
I’m glad you’re feeling more confident as a result of the advice you’ve received here. 
Hi Laura,
Many thanks for your posts on the SDS Forum and thanks to @Josh and @justinb for their replies.
I would just like to highlight a point in relation to whether Local Authorities can request ‘unspent’ money to be returned to them. Both Josh and Justin have highlighted the section titled: ‘Underspent Budgets and Seeking Repayment’ on p.57
This section also states:
‘To ensure reconciliation is done accurately and transparently, providers and Direct Payment holders should keep a record of decisions made (for example, deployment of staff, additional costs incurred) with a transparent and clear link to individual care plans (or adult carer support plans or young carer statements).’ (p.57) (my emphasis)
So this is saying, if you decide to make use of any money that you haven’t been able to spend during the year, it would be important to keep a record of how you do spend that money and to make sure you can relate that to meeting your son’s Personal Outcomes and the needs that have been identified in his assessment. This covers both the SDS budget that is based on your son’s needs as well as your own as his carer.
There is some additional guidance that was produced by an organisaiton called the Chartered Institute of Public Finance and Accountancy (CIPFA). You can see their guidance here:
SDS Part II: Resource Implications of SDS:Management Considerations
This talks about the financial monitoring that a Local Authority will undertake and states:
'67. The role of co-ordinated monitoring is particularly relevant if uncertainties regarding the use of the relevant amount arise. This may include:
- unexplained infrequent or low use of a direct payment
- unexplained irregular or large payments under a direct payment or in acting under the supported person’s direction
- the accumulation of a significant balance of direct payment funds
- potential misuse of the relevant amount outwith the agreed support plan
- unexplained use of any significant part of the relevant amount.
- In such situations these should be brought to the attention of the relevant social care professional, as they may indicate that a review of the support package arrangements is required to ensure that the supported person’s outcomes are achieved. In particular the social care professional may need to consider whether:
- the supported person requires a change in support to help them achieve their personal outcomes
- the supported person’s needs or circumstances have changed so that a review of the relevant
amount is indicated.
- The statutory guidance states:
“The authority should take steps to ensure that the supported person can use their direct payment in any way provided that the support purchased via the payment is in line with the assessment and support plan, meets the supported person’s “eligible need” and is within the criminal and civil law.” (p.21)
So for me, this is about reinforcing the choice that you can exercise when looking to use your son’s SDS budget to meet his needs and your needs.
Accumulating money and not spending most of the money during the year, indicates that something is not working as expected. So it might be important to make a plan for how you want to use the SDS budget during the year, include some as a ‘contingency budget’ for any unexpected costs that might come along and agree this with your Local Authority.
I hope that helps.
Many thanks,
Mark
Hi Mark
Thankyou for the information.
I know that due to Lewis ill health there will definately be an underspend.The social worker Lewis had was well aware that his health was not improving.She has since left and I am concerned that they may think that Lewis no longer requires direct payment.It has only been used to meet the outcomes which are in his support plan.Not used for anything outwith that I always run everything buy them and receipt absolutely everything.Finding it really daunting thinking they may take it away and feel very alone due to not having social worker to vent concerns.At the moment anything I need to enquire about has to wait for duty officer which can take 7 days.Have phoned enquiring if he will be allocated new social worker no one can tell me yes or no.
Laura
Yes, I’ve been wondering about that bit. I think that’s not talking about direct payments. I think it’s talking about options 2 and 3. There’s a separate section on the same page about direct payments. The mention of ‘contracts’ suggests it’s not direct payments, as direct payments have no real contract.
Yes, it’s well worth doing that, especially in a climate of LAs apparent eagerness to recover funds. I actually made a form to help with just that, to make sure I can completely justify any spending. Here’s a screenshot of it, I can email it to anyone who wants it.
I agree with your take on that. If money is accruing, it could be for lots of reasons, illness, pandemics, difficulty recruiting good enough staff (sometimes because you’re not allowed to pay a higher rate or offer overtime, even for a limited period - I’d like more info on that), the LA scaring you into not daring to actually use the money to meet needs, and so on. It’s clear people are really nervous and uncertain about actually using the money. LAs should be helping people spend it, not discouraging them from using the money and then demanding it back.
Hi Laura,
I don’t know if you’re already connected to the local Independent SDS Information and Support service in your area?
If you’re not, I could find the relevant details and pass these on to you. I would just need to know what Local Authority area you live in if that’s ok?
Many thanks,
Mark