SDS experience and advice?

21

Hi @toleraceandrespect, Josh and Mary,
Thank you for your posts and further information. I appreciate that you have all had some difficult experiences - and continue to have difficulties in being able to use your SDS budget in the most helpful and flexible way possible.

Thanks Josh for posting the your Test Sheets - this could be a very helpful resource for people.

Thanks Justin for your further comments as well.

It sounds like there are some similar experiences here and I wonder if it might be helpful for us to look at how people can address issues like this and maximise the choice, control and flexibility they would like to.

I will start to collate some ideas and post further details here. However, any ideas you had for what we need to cover and include in any kind of document, just let me know.

Many thanks,

Mark
@toleranceandrespect @Josh @MaryP @justinb @DonnaMurray

22

Hi i am in.Scotland and totally agree with everything you say .My son ha been.in receipt of Sds for 10 years and have had this problem from the start.If only the LA would let you run it as it shoukd be i am constantly on the phone trying to get approval for things that meet his outcomes and can wzit months to even get a call back. I feel i am not being given the authority to direct the support.I honestly believe they do not actually know how legislation for SDS its extremely frustrating.

23

Hello Mark

Thank you for this helpful reply.
While this forum has few peolpe, there are many others we have spoken to with this same problem.

Yes we need a strategy to make a progressive positive change from certain LA for them to re-aline their policy with regards to SDS to a-line with SDS legislation,
in particular the below:

“As set out in the section on funding and flexibility, 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 needs and is within the criminal and civil law.”

Currently my LA SDS policy is not in line with section 3 of the above or below

Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance

“The arrangements should be flexible and inclusive. Flexible – in that authorities should not seek to create or re-impose barriers to choice and control.”

Its really very simple the solution. Allow the carer or disabled person to use their SDS flexibility without barriers so long as purchases via are in line with the assessment and support plan, meets the supported person’s needs and is within the criminal and civil law.

Sure to still provide receipts and an explanation as to how and why you feel it meets the outcomes of the plan and that is enough.

  • End the obstacles and inflexibility by ending having to have every single purchase preapproved to the penny.

  • End having the LA disapproving and prohibiting the purchases of spending that the carer can clearly communicate and/or put in writing how it conplies with the outcomes on the care plan.

Currently, families all across Scotland are unable to use their SDS in accordance to SDS legislation due to barriers and inflexibility by their LA.
This needs to change.

We were delighted to get our SDS for our disabled child but then when we had to have everything preapproved to the penny for every specific activity it meant our child could not do any other activities and by the time of a review she had moved onto another activity interest. Or the cost of the preapproved activity had risen in cost and we couldnt use the SDS anyway.

Or specific sensory toys or equipment needs come along unplanned so we couldn’t use it for them.

Or we were refused other purchases even at the preapproval stage even though they would meet our childs outcomes. This shouldnt be the case with SDS legislation.

If a family wish to use it for a short break this should also be allowed without prohibition or preapproval as per

Social Care (Self-directed Support) (Scotland) Act 2013: statutory guidance

" For instance:

a product which can help to meet the supported person’s needs;

a short break; "

SDS legislation does not stipulate purchases need to be preapproved by the LA nor can the LA decline purchases if the carer can show how it meets the cared for persons outcomes.

So after all these obstacles and inflexibility we ended up with an majority underspend and unable to largely use the SDS to meet the outcomes.

A review or reassessment does not solve the issue, it mearly recirculates the obstacles and inflexibility.

24

Thamks Mark, yes please do collate some ideas and let us all know here.

We need some ways forward on how to address this. Who do we contact? How? Who can help with this? And what is the best way to do this? Ie a group of us together? Etc

@MarkieBoy

1 Like
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legal:

  • s211 local enquiry
  • group proceedings
  • or just individual Judicial Reviews establishing/clarifying the law

political (not my thing):

  • write to MPs
  • petitions
  • protests

I’ve probably missed things. I should set up a website I think

I think we’re well beyond the stage of ‘working with’ local authorities

26

Great points Josh. So who goes first or maybe we should mobilise a group proceeding with us here.
We need to be proactive as it can take sometime but need to start somewhere.
But will it make a difference as to being indifferent LAs? Maybe a few of us are in the same one? I am happy to continue.

27

I need to be careful what I say, given this is public, but I am also considering where next to take a complaint with my HSCP regarding this. We’ve just completed Stage 2 regarding flexibility of spend. I’ll keep you updated but also open to coordinated action.

Unfortunately, I did originally explore legal action regarding some of the other issues with my SDS package (there are many!), and @Josh provided some very helpful tips in this regard, but my health simply wasn’t good enough to take this forward without legal support, which is nearly impossible to get at low/no-cost.

28

So sorry to hear that your local authority is also not abiding by SDS legislation and hence you having to go through all this unnecessarily.

Did you mean you are now taling legal action?

Can I what is stage 2 exactly?

29

Hi,

I am not taking legal action, but had considered this as one of the options. Unfortunately, it’s very difficult to secure affordable legal representation to take a case forward, and my health wasn’t good enough to prepare my own case.

Sorry, I should have clarified what I meant by Stage 2. Most services have a two stage complaints process. To escalate a complaint to the Scottish Public Services Ombudsman, for example, you must have exhausted these stages.

This means that in my case, now that Stage 2 is complete, I can decide whether I want to escalate to the Ombudsman or consider something else. As this is a public forum, I need to be vague.

30

@MarkieBoy Mark can I ask you if it is lawful for the LA to every couple of months to remove from our allpay card money they think is an underspend. As every couple of months they remove a large sum of money,

“Debit the card balance” and then a large sum.

31

Hi there,
Thank you for the post. I think to answer your question I would have to refer to the relevant SDS legislation and the SDS Statutory Guidance.

In terms of the question about whether a Local Authority are right in periodically recouping underspent SDS budgets, the short answer would be ‘yes’ as they have the authority to do this.

The longer answer relates to the expectations in the legislation and guidance about how they recoup unspent money.

The SDS Statutory Guidance has a section on this titled ‘Underspent Budgets and Seeking Repayment’ (p.57). This states:

‘Where Local Authorities or Health and Social Care Partnerships have concerns about underspend of allocated budgets, these should be reconciled 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’ (p.57) (my emphasis)

So there is an expectation to check the reasons for the underspend.

The Guidance also states:
‘All unspent funds in Direct Payment accounts should be returned to the Local Authority or Health and Social Care Partnerships in the usual way.’ (p.57) (my emphasis)

The Guidance further states:
‘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.’ (p.57) (my emphasis)

Whilst this part is referring to concerns about the use of a Direct Payment, it is highlighting the need to have a discussion with the person receiving the direct payment and to see if there is still a need to use this money and what it might be used for.

The relevant legislation is the Social Care (Self-directed Support) (Scotland) Act 2013.

Under Section 15, 2 (e) ‘Power to make further provision about direct payments’ the legislation states:

‘(e) specifying the ways in which direct payments may be paid or repaid’

So the legislation gives Local Authorities the ability to set what local arrangements they want in relation to the repayment of unused SDS funds. However, they have to take the statutory guidance into account, the underlying SDS statutory Principles as well as good practice such as the SDS Standards.

I hope that answers your question?

Many thanks,

Mark

32

I think this is wrong @MarkieBoy, sorry! Take another look:

15 Power to make further provision about direct payments
(1)The Scottish Ministers may by regulations make further provision about direct payments.

So that means that the 2013 Act empowers Scottish Ministers (not local authorities) to make regulations.

Regulations are secondary legislation. Local Authorities cannot make secondary legislation.

So, now we need to look to see if the Scottish Ministers have made any regulations. It turns out they did, in 2014, Let’s take a look here: The Self-directed Support (Direct Payments) (Scotland) Regulations 2014

So lets see if there’s anything in there about ‘(e) specifying the ways in which direct payments may be paid or repaid’.

It doesn’t say anything. I read the whole thing again just now. There’s nothing in there about repaying direct payments, unless I’ve gone blind. Please please read it yourself and tell me if you can find anything. This is driving me nuts.

Remember, the hierarchy of law is this, from top to bottom:

  1. Primary legislation (Acts of parliament, e.g. the 2013 SDS Act)
  2. Secondary Legislation (Written by ministers, e.g. the 2014 SDS Regulations)
  3. Statutory Guidance (e.g. the Statutory Guidance to the 2013 Act)
  4. Non-statutory Guidance (e.g. the Framework of Standards)
    …and way down at the bottom:
  5. Local Council Policy.

If anyone actually wants to know what the rules really are, do not start with Local Council Policy! Start at the top.

33

Ok, this bit on page 57 is very confusing. If this is about the direct payments held and controlled by Direct Payment users, why isn’t it in the immediately following section on ‘Seeking repayment of direct payment funds’?

What on earth is ‘the usual way’ of recouping funds from Direct Payment users? We have seen that there is no usual way, LAs do it in various creative and unlawful ways.

Why, in the section aptly named '‘Seeking repayment of direct payment funds" does it not mention AT ALL seeking repayment of unspent funds? It ONLY talks about repayment of funds due to the direct payment ending, or if the DP has been mis-spent, or the DP user dies. The closest we get is this:

“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”

Well we know nothing has been imposed by the regulations. And how do we know if the rules made by the LA have been ‘properly imposed’? From what I have seen so far, LA’s methods of clawing back funds are often not proper at all, even if for no other reason than they don’t talk to the DP user first about it, they just do it.

So how are we to interpret this?

EDIT: I asked my LA what the legal basis was for demanding return of unspent funds in my son’s DP account. No answer. I didn’t return anything. Also, note that there are no funds in a DP account that are not unspent.