SDS Standard Standard 13 on Direct Payments

Legislation & Guidance
1

@MarkieBoy mentioned that a new SDS Standard covering Direct Payments is on the way. I wonder if it would be helpful to raise questions in this thread that the new Standard might address. Off the top of my head:

  1. Can an LA dictate how a DP is received and held? We’ve seen multiple times how DP users are given managed accounts and pre-paid cards which have then been used to restrict choice and control. Is this something that can be governed by local policy?

  2. We know outcomes must be jointly agreed in a support plan. But to what extent does the local authority get a say in exactly how the money should be spent to meet those outcomes? Many times we have heard of restrictions placed on the spending, even spending which appears to meet outcomes. Should a clear distinction be made in the guidance between means and ends?

  3. Is there a legal basis upon which LAs may require money to be returned simply because it is unspent? Local authorities operate local policies which have such provisions, but do these policies have legal effect?

  4. What is the legal status of a Direct Payment agreement considering that the relationship between DP user and a local authority is primarily governed by statute, and bears few of the legal hallmarks of a contract?

  5. The SDS Standards are non-statutory guidance. To what extent may they be relied upon? Where do they get their authority from?

Any others?

2

Hi Josh when will this new standard come into force ? thankyou .

3

Oh, I’ve no idea. @MarkieBoy just mentioned it in passing in another thread.

4

Hi Josh and Laura,
I think SDS Standard 13 is due to be published very soon. I know there will be mention of this at our National Voice Conference next week (19th March) but I’m not sure if that will be publication day.
I’ve copied @DonnaMurray in as she might know the exact details for this rather than me.

Many thanks,

Mark
@Lewis @Josh

5

Hi Josh,
Thanks for the post. Donna Murray @DonnaMurray from Social Work Scotland was able to provide an update of where things were in relation to the 13th Standard for SDS on Direct Payments. She mentioned:

The SDS Standard 13: Direct Payments for Employing Personal Assistants will be considered by the COSLA Health and Social Care Board on Friday 21st March and pending their approval and support from the Minister it will be launched alongside the easy read version and the accompanying guidance early April.

  1. A LA/HSCP cannot dictate how a DP is received and held. In the Standard we have said that good practice is that people have a choice about whether they receive the direct payment into a bank account or through a pre-payment card in areas where this is available.

  2. The Standard Descriptor of SDS Standard 13: A direct payment is a monetary payment given by the local authority in place of services. A direct payment maximises the self-determination of people to choose and control their own care and support arrangements and to exercise their right to independent living. People can use a direct payment to buy what they need to meet their agreed outcomes: this can include employing personal assistants. We also pick this up in the accompanying guidance and describe how standard 13 is underpinned by the 12 foundational SDS Standards.

  3. The amount of surplus balances above agreed contingency ( pending necessary payments) are a local decision but good practice would be that regular reviews ensure that people have an adequate budget to be a good employer and that they have access to support to do this and that arrangements are working well. The Standard also describes good practice as direct payment agreements including accessible information about the administration and use of contingency funding and about the process for adjusting and recalling funds.

  4. Good question and I think Josh has raised this before about the status of the DP Agreement. I’ll reach out to legal to explore this and whether it is a contract.

  5. The SDS Standards are none statutory but will be supported by COSLA and the Scottish Government and will be implemented with the help of a Community of Practice of local authority practitioners with oversight from the PA Programme Board ( which includes employers, PAs and independent support organisations and DPOs). We hope the standard helps practitioners to realise good practice based on where they are at in their own local authority and that their relationships with employers, independent support organisations and payroll can thrive based on good leadership, a supported workforce and good systems.

I hope that helps.

Many thanks,

Mark @Josh @Lewis

6

Thankyou very useful information.Have finally been given a social worker to do review .Thanks so much for all the information and support.Lots of questions to ask at review.
Laura

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Thanks @MarkieBoy.

It’s strange to me that COSLA must approve the guidance. It’s pretty clear now that local authorities are often opposed to traditional Direct Payments. This should not be allowed to be reflected in any guidance - any guidance should reflect the policy and objects of the Act. Consider Lord Reid’s words in Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1:

“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; policy and objects of the Act must be determined by construing the Act as a whole, and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court.”

“Bank account” is not specific enough. A ‘managed account’ is a bank account, but not one that is under the control of the DP user. The standard needs to say something like: “a bank account set up by the DP user, in the DP user’s name, and in full control of the DP user.” LAs must surrender physical control of public money. Legislation and statutory guidance is very clear on this.

That’s OK but doesn’t really reduce the uncertainty. Do people have to pre-approve specific expenditures (not just outcomes) before they can spend the money or not? This doesn’t clear that up. Of course, the LA needs to hold DP users accountable, but the mechanism for that is in the annual audit in which receipts are sent to the LA. And then the LAs can’t arbitrarily decide if they will ‘allow’ it or not. The test is whether it meets the outcomes, and that’s ultimately a matter of law, not a matter of LA discretion as far as I can tell.

If that’s what the standard says, I think it might be open to challenge, as I’m not aware of a clear legal basis for it. There perhaps should be a legal basis for it; there is in England. In the (English and Welsh) Care Act 2014 s33(2)(b) there is a provision for ministers to make regulations about conditions which an LA may or must attach to the making of direct payments. And those regulations in The Care and Support (Direct Payments) Regulations 2014 (Regulation 4(1)) give LAs broad discretion to attach conditions to the making of a direct payment, and this can include repayments of unneeded money. However I cannot find an equivalent in Scots Law. There is a provision in the Scottish Social Care (Self-directed Support) (Scotland) Act 2013 s15(2)(e) that allows ministers to make regulations “specifying the ways in which direct payments may be paid or repaid.” So far so good. But the regulations that the Scottish ministers actually did make does not include such a provision! Nor do they say that LAs may make their own policy like the English regs do! At least I can’t see it. Take a look yourself:

And the Statutory Guidance on pg 57 is unclear on the point in its talk about ‘contractual arrangements’. Indeed, a careful reading strongly suggests to me that there is no provision for repayment of an underspend in the case of a Direct Payment that is held directly by a direct payment user.

Anyway - back to the standard.

If the standard says “agreed contingency” (and it is lawful to set one - which I doubt for the reasons set out above), does that mean it is a joint decision, where to set the contingency? If so, then it can’t be a matter of local policy, as everyone is different. Indeed, even if it was wholly the LA’s decision where to set the contingency, it still couldn’t be a matter of blanket policy as that would be fettering their discretion and therefore unlawful.

Many thanks. I’ve had a look again for ‘direct payment agreement’ (no hits in the Statutory Guidance or the regs as far as I can tell). Even ‘agreement’ has only 7 hits in the guidance and isn’t used to mean a contract as far as I can see. This ‘DP Agreement’ doesn’t seem to be much of a thing in the law and guidance and appears to me to be an invention of Local Authorities. The Support Plan, on the other hand, is definitely a thing. That’s the thing that governs the spending of the DP, not some agreement drafted by the authority which users are pressured into signing on pain of not getting support.

Do we need a DP Agreement at all? The relationship between LA and DP user is well defined in law. And the stuff that isn’t defined in law is could be in the Support Plan, perhaps. What else is there for a DP Agreement to cover?

EDIT: You can see I’m against DP agreements. I don’t like them because they present a perfect opportunity for LA’s to make up a load of nonsense and impose it on the DP user in a way that makes it seem compulsory.

I hope the Scottish Government have some good lawyers involved. I’m worried about what COSLA will try and get away with. I’d like to be involved in the oversight board.