This may be a no-risk way to solve all LA non-compliance in one go:
Local Government (Scotland) Act 1973 s 211 says:
"211 Provision for default of local authority.
(1) If a complaint is made to the Secretary of State or any appropriate Minister that a local authority have failed to do what is required of them by or under this Act or any other enactment or the Secretary of State or that Minister is of opinion that an investigation should be made as to whether a local authority have so failed, he may cause a local inquiry to be held into the matter.(2) If after such a local inquiry the Secretary of State or appropriate Minister is satisfied that there has been such a failure on the part of the authority in question, he may make an order declaring the authority to be in default and directing them for the purpose of remedying the default to take such steps and within such time or times as may be specified in the order."
See here: Local Government (Scotland) Act 1973
So, if I have read this rightly, in principle, a government minister can order a Local Authority to stop messing people about and comply with the law. Which could solve our Direct Payment non-compliance issues without us having to take individual or collective legal action with all the stress and possible expense that involves. So I guess there are a few steps involved:
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Someone has to make a complaint. This complaint should presumably contain a good deal of evidence, enough for the minister to take it seriously and cause a local enquiry. Presumably an organisation like SDSS or other organisation involved with direct payments, or failing that maybe a complaint signed by many DP users or something, should be the ones to make the complaint.
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It’s not clear whether more than one LA can be named in the complaint, but I don’t see why not.
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It says the minister ‘may’, not ‘must’. So the minister has the power, but not the duty. This could put the brakes on the whole idea, they can just say ‘no’.
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LAs might continue to refuse to comply anyway. In which case the minister can take it to the Court of Session who can make an order of specific performance (i.e. do what you’re supposed to do) s211(3)
As far as I can tell there has only been one such local inquiry since the statute was made in 1973. Which is a worry. I need to read the whole case. It is Lord Advocate v Glasgow DC, 1989 WL 651884 (1989) but the only copy I could find was on Westlaw - I can’t see the judgement floating around for free on the internet anywhere else. Here is an extract from the case digest:
“A local authority adopted a policy that they would not carry out any works of improvement to a house let by them under a secure tenancy unless the tenant entered into a legally enforceable agreement with the authority to repay all or part of the cost of carrying out such work if the tenant subsequently exercised his or her right to purchase. To that end, the authority issued to secure tenants seeking to have improvement works carried out to their houses a pro forma letter containing an undertaking by the tenant not to exercise the right to purchase within 10 years or, if such right were to be exercised, to repay a proportion of the cost of the improvement works. Following an inquiry, the Secretary of State found the authority to be in breach of their statutory duty and served on them a default order directing them to remedy the situation. The authority having taken no action, the Lord Advocate on behalf of the Secretary of State presented a petition under the Local Government (Scotland) Act 1973 s.211(3) for an order for specific performance by the authority of those matters in respect of which they were in default.”
So it has been used at least once before.
What do you think? Worth researching more?