Social Care (Self-directed Support) (Scotland) Act 2013: Draft Regulations and Statutory Guidance – Analysis of Consultation Responses

13 GUIDANCE - DIRECT PAYMENTS

13.1 Section 9.4: Direct payments provides further guidance on direct payments. This includes :

• The fundamental characteristics of a direct payment
• Third party direct payments
• Circumstances where the professional cannot offer a direct payment
• The choices available to a supported person under a direct payment
• The responsibilities that come with a direct payment
• Monitoring and administration of direct payments (including welfare and financial monitoring)
• Terminating and recovering direct payments

Question 11a: Was this section of the guidance clear and easy to understand?

13.2 Seventy-four respondents said yes, this section of the guidance was clear and easy to understand. Six said no and 64 did not reply.

Question 11b: How useful did you find this section of the guidance?

13.3 Fifty-two respondents said they found this section quite useful. Nineteen said it was very useful, eight said not at all useful, 65 did not reply.

Table 13.2 Usefulness of Section 9.4 of the guidance

Question 11c: Do you have any further comments on this section of the guidance?

13.4 Eighty-two respondents commented on this question, most respondents related their answers to specific elements of the guidance. A range of general comments were made, including a suggestion that this part should be in the section of the guidance providing the description of the four options. A small number of respondents noted that the section of the guidance was clear and easy to understand, with a good basic introduction.

13.5 Two key themes emerged. A significant number of respondents felt the guidance needs to make clear that a personal assistant cannot manage the service user's finances, only assist with this. There were also a number of calls for training / information / advice and support on managing direct payments; for example, how to get the most from a direct payment, how to employ personal assistants.

13.6 Allied to this, a number of respondents also commented that the information provided on direct payments is vague, particularly in relation to training, employment law, the avoidance of conflicts of interest and obtaining PVGs. Two respondents in the voluntary sector suggested provision of a flow chart or table showing the pathway to funding arrangements and the responsibilities of different agencies.

13.7 There were also some suggestions for links to other elements of the guidance; and reference to other legislation such as the Social Work (Scotland) Act 1968, Community Care and Health (Scotland) Act 2002, Carers (Recognition and Services) Act 1995. One local authority noted that there is a lack of clarity around third party direct payments and how these differ from Individual Service Funds.

13.8 One voluntary sector organisation commented that Regulation 5 allows for a direct payment to be paid in instalments and felt that the guidance should make reference to this.

13.9 Another theme related to the need for the guidance to recommend what constitutes a reasonable minimum period of notice for discontinuing with a direct payment, that local authorities should have discretion on when to reinstate this and that an individual should have the right to challenge a local authority decision to terminate a direct payment. A small number of respondents commented that the financial penalties of misuse might be a deterrent to selecting the option of having a direct payment. There were also a small number of comments that direct payments should be available to all individuals, with no exclusions

Third party direct payments

13.10 The key theme emerging in relation to this section of the guidance was the need for some form of clear contract or mandate to ensure that all involved are aware of their role and responsibilities, and to ensure full protection of the supported person. For example, where a third party has chosen to manage the financial responsibilities of the direct payment on behalf of a supported person.

13.11 Allied to this, there were some requests for local authorities to be given discretionary power. For example, to help decide eligibility for the direct payment in instances where there could be a conflict of interest; or if provision of a direct payment could lead to risk to children, adults or the public.

13.12 There were some requests for clarification and guidance on specific points such as more explanation on the roles of a supported person and a third party; or for the guidance to be more explicit in supporting the role of professional assessment and judgement in agreeing to a third party arrangement.