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

Section 3: The Self-directed Support Options

Summary

The Act 2013 requires local authorities to offer people who are eligible for social care four choices concerning how they receive support, taking account of the amount of choice and control the supported person wants over their social care arrangements. The four choices, or options, are:

Option 1: The making of a direct payment by the local authority to the supported person for the provision of support.

Option 2: The selection of support by the supported person and the making of arrangements for the provision of it by the local authority or an agreed third party (such as a support provider) on behalf of the supported person. Where the support is provided other than by the authority, the relevant amount in respect of the cost of that support is paid by the local authority.^[34]

Option 3: The selection of support for the supported person by the local authority, the making of arrangements for the provision of it by the authority and, where it is provided by someone other than the authority, the payment by the authority of the relevant amount in respect of the cost of that provision.

Option 4: The selection by the supported person of combinations of Options 1, 2 and 3 and, where it is provided by someone other than the authority, the payment by the local authority of the relevant amount in respect of the cost of the support.

There should be no assumption that the Scottish Government, local authorities or social workers consider any option as a preferred or default option, only that the supported person is empowered to choose the option that works best for them, in accordance with their preferred level of choice and control.

Assessment, the provision of information and the identification of resources are all part of the same co-produced process, which starts with a good conversation and ends in a budgeted (if budget is required) support plan and the offer of the four SDS options.

The wishes and needs of the person must always take precedence, including taking account of circumstances where a supported person may not have capacity to make decisions.^[35]

See Annex 1 for diagrams which summarise key SDS roles and responsibilities and a supported person's pathway towards getting the support they need.

For guidance on what budgets can be spent on, see also the section on funding and flexibility

The SDS options in detail

Option 1: Direct Payment

Option 1 is a direct payment by the local authority to the supported person (which may include carers) for the provision of support. It requires a higher level of responsibility than other options, and is the main option that enables a supported person to directly employ workers such as Personal Assistants (PAs), which can (with local authority agreement) include the employment of family or friends.^[36]

Authority social workers should ensure that the supported person understands (either directly from the social worker or from a designated support service) what a direct payment is and how it might be used.

The authority should take steps to provide the necessary training and awareness raising to its own social work workforce to ensure that they are aware of and trained in, the nature and effect of a direct payment, the purpose behind a direct payment and the flexibility and responsibilities that come with direct payments. It should take steps to support their workforce to engage with the philosophy behind direct payments and their potential application for a wide range of individuals and circumstances.

The authority is obliged under the 2014 Regulations to take a number of steps before making direct payments and should take account of the following when providing the direct payment option, in line with their duties under the 2013 Act:

• A direct payment is not a benefit or a gift. Its ultimate purpose is to meet, in a flexible way, the outcomes of the supported person as agreed in the support plan. The direct payment amount should therefore be what the local authority considers to be a fair and sufficient estimate^[37] of the cost of securing provision of support for the person to enable them to meet their outcomes. This should reflect the market rates that authorities recognise in their own commissioning activity.
• Of the four options available under the 2013 Act the direct payment (if constructed and developed on a sound basis), Option 1 requires a level of responsibility that is greater than some of the other options. The authority should make this point clear to the supported person. It should be transparent but it should also be supportive, explaining the additional support and information that can make the direct payment work for the supported person. The authority should ensure the supported person is offered independent advice and support where appropriate.
• The authority should be aware of and be able to explain the key characteristics of a direct payment. For instance, under a direct payment the supported person receives a sum of money into a bank account. The supported person, either on their own or with support, can then purchase the support that they wish in order to meet their personal outcomes.
• The authority should ensure that the relevant local guidance or procedures work to assist the person to use the available financial resource in a variety of ways. In other words, to use it in any way provided that it will secure the provision of support agreed with the practitioner and provided that it meets the outcomes contained in the support plan.
• The decision to become an employer will only be available under the direct payment option. However, the authority should make it clear that the supported person can also use their direct payment to purchase a range of services that might otherwise be available under Options 2 to 4. For example, a direct payment can be used to purchase services from a registered care provider, from the local authority itself or from another local authority. In other words, the direct payment can do more than just employ PAs.

Payment (net or gross)

The authority can arrange for the direct payment to be paid in instalments or in a lump sum payment. Where a person is eligible for a charge towards their support the direct payment can be made on a net or a gross basis, in other words, the charge can be removed prior to the provision of the monthly direct payment or following the provision of the monthly payment. The supported person may request the payment be made gross. In this circumstance, the local authority should give this request full consideration, taking into account the direct payment user's reasons and circumstances behind this request prior to a decision being made.

If the authority decides to pay the direct payment gross it will pay the relevant amount to the direct payment user and the direct payment user will pay the local authority any contribution required. If the authority refuses to pay direct payments on a gross basis they should inform the supported person as to the reasons why.

Third party direct payments

The supported person can ask for their direct payment to be paid to a third party and administered on the supported person's behalf. Under a third party payment the authority should take reasonable steps to ensure that the supported person remains in control of the payment and the supported person remains responsible for the direct payment. It is important that the role of both the supported person and the third party are made clear to the supported person and that there is evidence that all parties understand their responsibilities, for example a signed letter. This can help in the event of problems occurring at a later stage.

The authority should satisfy itself that the relationship between the supported person and the third party has been discussed and agreed before support begins. The authority must also be satisfied that the supported person is aware that they can receive the payments directly if they wish.

The authority should ensure that the third party direct payment allows choice and control for the supported person. Third party direct payments are a flexible alternative where the supported person does not wish to take on the additional money management responsibilities. But the supported person should be firmly in control. A third party arrangement should not lead to a switch from dependence on the local authority to dependence on a third party.

Responsibilities that come with a direct payment

As part of their duty of care, the authority social worker should explain direct payment responsibilities to the supported person, relatives and relevant circles of support where applicable. They should also explain the additional support and information that the person can receive in order to manage their payment.

There is no specific requirement to do so, but it is good practice to explain the following responsibilities:

• to use the payment to meet the outcomes within the support plan;
• to report back in a proportionate and reasonable way on how the funding is being spent; and
• where the supported person chooses to employ a PA the responsibility to be a good employer and the responsibilities to discharge the range of additional responsibilities that come with being an employer;^[38]

The authority should make the supported person aware of further sources of information which can help them to understand their responsibilities.

Flexible use of direct payments: the choices available to a supported person under a direct payment

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.

Typically, direct payments have been understood as a route to employing a personal assistant. However, a direct payment can also be used to purchase a wide range of things. For instance:

• a service from the local authority or from another local authority;
• a service from a provider organisation in either the voluntary or private sector;
• a product which can help to meet the supported person's needs;
• a short break; and
• anything else which will help to meet the supported person's needs and the outcomes in the support plan.

The 2014 SDS Regulations provide additional safeguards in relation to the direct payments – both for the authority and for the supported person. This is to recognise the unique nature of a direct payment and to support practitioners and individuals when choosing the direct payment option.

Option 2: Directing the Support

Under this option, the supported person directs the local authority – or a provider acting under the person's direction – to make payments on their behalf for services or for the purchase of key items that will meet their outcomes, or a combination of both.

The purpose of Option 2 is to facilitate greater freedom of choice and control, making it easier for people to choose the provider of their choice, with the authority (or subsequently the provider) of the supported person, making arrangements on their behalf. The authority should use Option 2 to widen the flexibility offered to supported persons to the maximum possible extent. It should make use of Option 2 to provide a route to greater freedom of choice and control for those who want to take greater control over their day-to-day support but prefer not to choose the direct payment option.

The authority should develop a flexible range of options under Option 2 in line with their obligations as described in Sections 1 and 4 in the 2013 Act. As with the direct payment option, the provision of support under Option 2 should be flexible and can include services, goods and activities, as supported by the provisions in the legislation.

The authority should consider all commissioning models to put in place service provisions, and where a public contract is the preferred arrangement for securing service provision, they should seek to apply the flexibilities permitted by the procurement regulations, which do not require a tendering process where the value of the contract is below the relevant contract threshold value for social and other specific services.^[39]

While a person can use Option 2 to obtain a personal care service (and express preferences about which care workers will support them within a specific provider), a person cannot use Option 2 in order to employ their own PA. Unlike the direct payment there is no requirement for the funding to be provided directly to the supported person as a cash payment. The budget provided to the person should be operated as a virtual budget. The resource can remain with the local authority or it can be delegated to a provider to hold and distribute under the supported person's direction.

The arrangements should be flexible and inclusive. Flexible – in that authorities should not seek to create or re-impose barriers to choice and control. Inclusive – in that authorities should not seek to exclude particular types of service provision or particular providers from the full range of supports available to the person. For example, the arrangements should allow for flexibility in budgeting, allowing sufficient over-and under-spends. The authority – and providers acting as custodians of the person's budget under the person's direction – should not seek to impose restrictions or limitations over and above any that are reasonably defined in the person's assessment or support plan.

Option 2 may also be provided as an Individual Service Fund, which is an example of a budget managed by a service provider on behalf of an individual. As with a direct payment, Option 2 funding should be used to meet the needs identified at assessment and the personal outcomes outlined in the support plan.

Option 3: The local authority arranges support for the supported person

Under Option 3, the authority – with the involvement and agreement of the supported person – selects the appropriate support and then makes arrangements on the supported person's behalf.

It differs from Option 2 in that the local authority provides or arranges services on the supported person's behalf and the supported person does not have direct, on-going or day-to-day responsibility for planning and controlling how the available resource is used.

Nevertheless, under Option 3 the principles of choice and control, collaboration and involvement should continue to apply. The authority, through its approach to commissioning and procurement of services, should seek to ensure that the services provided are as flexible as possible, are appropriately personalised and are ready to adapt to the wishes of the individuals who use them.

This should involve the necessary workforce education and development, ensuring that those who provide care and support do so in line with the general principles in the 2013 Act.

Option 4: Bespoke combination of one or more options

This option recognises that some people will be content to take on some but not all of the control associated with one or other of the SDS options. This is a bespoke approach to ensure maximum flexibility in the options available. This option may be attractive to people who would like to try using the direct payment or individual service fund for some aspects of their support.

Here, the supported person may choose combinations of Option 1, 2 and 3 for different types of support and, where it is provided by someone other than the authority, the payment is made by the local authority of the relevant amount in respect of the cost of the support.

Further guidance related to SDS Options

This section contains guidance on a range of related issues and policies related to SDS Options.

Housing support

Housing support is support other than care or housing management services to enable a person to establish or maintain occupancy of a dwelling. Housing support services are provided to help people live as independently as possible in their own homes.

If the authority concludes that a particular form of housing service falls within the definition of community care services then the 2013 Act applies and the supported person should be provided with the full range of choices under the 2013 Act.

Housing adaptations

Housing adaptations are changes to a property that are fixed or become part of the structure and support a person to live as independently as possible.

The authority should have regard to the following key principles which represent good practice in housing adaptations:

• the supported person and their carer(s) should be placed at the centre of service provision and be in control;
• access to assessment and the adaptations should take account of need and be fair, consistent, reliable and reasonable, with a focus on prevention;
• assessment and access to financial and other non-financial support for the adaptation should be equitable and fair; and
• the supported person should be able to understand the systems and rules, which should be uncomplicated and presented in a way that helps the supported person to make informed choices.

Options 1 and 2 in the 2013 Act - the direct payment or the opportunity to direct the available support – may provide an opportunity to explore new or alternative ways to meet the person's outcomes. However any additional costs or responsibilities that may be incurred by arranging the adaptation via a direct payment or individual service fund should be fully explained to the supported person.

Consideration should be given as to how any recurring costs such as maintenance will be met, and who will be responsible for these costs - for example the provision of additional top-ups to the direct payment to cover them.

Equipment

Before using a direct payment to provide equipment, consideration should always be given to loaning equipment from local Equipment Store Services^[40] . This should also be the same for the provision of standard non-housing adaptations, for example many local equipment services provided items such as Stairlifts (which are then provided and maintained by the service, and then returned when no longer required, to ensure others can benefit from this provision).

On direct payments and equipment or adaptations

Direct payments can be used to purchase anything provided that it meets the assessed needs and outcomes of the supported person as agreed in the support plan, and is not illegal. This includes equipment and all types of adaptations, including housing adaptations. However, as with any other form of support, the equipment or adaptation must meet the assessed needs of the person.

A direct payment arrangement means that control and responsibility passes to the supported person. This means that ownership and responsibility for arranging the maintenance of the equipment or adaptation can pass to the supported person. In some instances it may make sense for responsibility for maintenance to rest with the authority. The key priority should be to make use of the user/supported person agreement to discuss and clarify questions of maintenance, ownership and issues such as the donation of any equipment to the authority, NHS, provider or fellow citizens after it is no longer required.

While there is no specific restriction on the use of direct payments to fund larger scale adaptations it is a matter for the authority to determine if the relevant support relates to community care support. A direct payment is an alternative means by which to meet assessed social care needs. It is not a substitute for housing improvement grants.

When considering the funding of large scale or particularly complex alterations the authority and the supported person should consider how additional responsibilities such as insurance, health and safety requirements and specialist support and expertise, will be fulfilled.

Discretion of local authorities relating to direct payments

The authority must take reasonable steps to comply with the 2013 Act. There are, however, circumstances where the authority has the discretion to refuse a direct payment, for example where in the authority's considered judgement it is impossible for the direct payment option to meet the needs of the supported person and, at the same time, be assured that the person's safety is not being jeopardised by the direct payment.

The 2014 Regulations specify that an authority is not required to offer the option of a direct payment where it is likely that the making of a direct payment will put the safety of the supported person at risk. Appropriate examples where the authority can use this duty of care discretion are:

• where a person's safety will be put at risk by having a direct payment because it is clear that the money will not be used to purchase the needed support;
• where the assessment is conducted at an acute point of crisis to the extent that the person's safety would be further jeopardised by the provision of a direct payment, and;
• where the adult is defined as an adult at risk under the Adult Support and Protection (Scotland) Act 2007 and there is a protection order in place and there are concerns about the person's safety.

When considering whether financial harm is occurring – or may potentially occur – it is helpful to consider a person's past behaviour and views as these may offer insight to their current behaviours. Not all people subject to financial harm will be regarded as adults at risk, but the Adult Support and Protection (Scotland) Act 2007 can be used to protect those people who are regarded as being at risk.

The test in relation to duty of care considerations and circumstances where it is appropriate to refuse the option due to these considerations, is a significant one. The authority should not depart from the provisions and duties of the 2013 Act without good reason.

For example:

• It would not be appropriate for the authority to refuse a direct payment simply because the person's disability means that it is a challenge (even a significant challenge) for them to manage the direct payment option;
• It would not be appropriate for the authority to refuse to provide a direct payment simply because the person has dementia or learning disability or any other disability which may require them to need extra support to make the direct payment option work, and;
• It would not be appropriate for the authority to develop internal policy guidance documents which define access to direct payments on the basis of client group or disability alone.

In all instances where the authority concludes that it cannot provide a direct payment it should explain to the supported person in writing – and if necessary, in such other form as is appropriate to the needs of the person – why it is not appropriate at that point in time. It should also explain that the person can request a review in order to consider other options.

Where the circumstances that gave rise to the initial decision subsequently change, the authority should reconsider that decision. Section 13 of the 2013 Act specifically requires a local authority to offer the person another opportunity to choose one of the SDS options whenever it becomes aware of a material change in that person's circumstances.

However, there are certain instances where the form of support may be relevant to deciding whether the 2013 Act duties apply. This section provides additional guidance to authorities in order to help them to decide which forms of support are relevant to the 2013 Act and which are not.

• Authorities are not obliged to provide social care for adults in prison: see the section on prisons and criminal justice.
• Under the Direct Payment Regulations 2014, the only circumstance where the authority is not permitted to offer a direct payment is in relation to the provision of long-term residential or nursing care to persons of any age. This means that the authority cannot provide a direct payment to any person of any age where the support required by the person is long-term residential care.
• The Direct Payment Regulations 2014 specify that a local authority is not required to offer the option of a direct payment where it is likely that the making of a direct payment will put the safety of the supported person at risk.

Local authority powers to terminate a direct payment

Direct payments may be discontinued because:

• The supported person would prefer to revert to arranged services or an arrangement under Option 2 or Option 3 in the 2013 Act (individual service funds or similar arrangements);
• The supported person is no longer able to manage their direct payment with the available support;
• The local authority is not satisfied that the person's needs are being met; or
• The local authority has concerns over misspent funds.

Where the authority is considering terminating a direct payment or a change to the budget it should discuss this with the person and seek to locate any discussion in the person's assessed needs and the personal outcomes contained within the person's care and support plan. The key consideration should be whether the support plan is capable of meeting the personal outcomes and identified needs of the supported person.

The authority should be transparent with the person. Any change to a person's budget should have a sound rationale which is clearly communicated to them according to their preferences, and, unless there are exceptional circumstances, with sufficient notice to allow them to make alternative arrangements. Where an authority concludes that a particular form of support will not meet the person's needs and outcomes, the authority should seek to explain why this is the case and it should seek to collaborate with the supported person to develop alternative plans.

When terminating a direct payment the authority should keep the supported person informed throughout. Any decision to terminate a direct payment should follow a thorough discussion with the supported person, carer(s) and circle(s) of support.

It is recommended that the authority set a minimum period of notice which will normally be given before the payments are discontinued, and include it in the information to be provided to people who are considering their options at the outset. The authority should bear in mind any contracts into which the supported person has entered.

The authority should not automatically assume when problems arise that the solution is to discontinue the direct payment. If the authority decides that it has the necessary powers to terminate the direct payment, then it should discuss the alternative options under the 2013 Act.

Short-term changes in the person's support arrangement

Where it is necessary for the person to enter hospital for a period of time, the authority should take a proportionate approach. The authority should continue the direct payment where the person enters hospital for a short period in order to allow PA contracts to remain in place.

This is to ensure invaluable continuity of care once the person is able to return home. This helps avoid repeating costly and time-consuming recruitment processes and the need for interim care and support arrangements. This can also ensure that support can continue to be delivered in the temporary hospital setting.

In some instances it may be necessary for the authority social worker to consider pausing the direct payment temporarily, for example:

• when a supported person enters hospital for a longer period, or because their condition improves, or;
• when a supported person is temporarily unable to manage the direct payment even with support, perhaps again due to fluctuation in their condition or the support available.

If this happens, the authority should discuss with the supported person how best to manage any adjustment. The authority should inform the person as soon as possible if it is considering pausing a direct payment arrangement. It should avoid taking immediate steps without consulting the supported person and it should always be mindful of the impact of any decision to terminate a direct payment on the support needs of the person. It should set a minimum period of notice and it should include this in the information provided to the person within any supported person's agreement.

Termination of a direct payment at short notice

It may be necessary in exceptional circumstances to discontinue a direct payment without giving notice. In considering this course of action the authority should first take account of the supported person's contractual responsibilities with a service provider or an employee. It will also have to take into consideration any outstanding financial liabilities the supported person may have.

Before the direct payment arrangement begins the authority should make clear to the supported person the circumstances in which the payment might be discontinued with no notice.

The authority can take over the management of the supported person's arrangements in the interim. In considering whether it is practical, desirable and cost-effective to maintain the person's arrangements, the authority should bear in mind any contracts into which the person has entered. An example is that the local authority will not be able to take over a contract with a service provider which is not registered with the Care Inspectorate.

See section on underspent funds and the seeking of repayment

Redundancy

Depending on their direct payment arrangement, the supported person or their attorney may find themselves with on-going contractual responsibilities or having to terminate contracts for services. These responsibilities include making employees redundant, for example where the supported person moves to another Local Authority area or moves from using Option 1 to another Option.

Because redundancy is typically an employer's responsibility, the authority should discuss the possibility that this may happen with the supported person before they begin the direct payment arrangement and agree how funding this outcome this would be handled.

The authority can allow SDS budgets to be used to meet redundancy costs where this is as a legitimate employment cost and where proper notice is given. For more information and resources on this subject please see the PA Employer handbook.^[41]

Contingency Planning

Contingency planning for support and use of budgets should be in place for all Direct Payment social care support. Consideration of the individual and their support network's general welfare, health and wellbeing should also be taken into account in contingency planning.

The individual and their carers' views are paramount in developing this plan to ensure that risks are jointly identified and mitigated, and that the supported person is provided with the appropriate additional support to ensure that they feel prepared if things do not go to plan. Where appropriate the authority should take steps to support the person to plan ahead and make arrangements whereby a designated person or group of people – for example, a circle of support or trustees – can be given permission by the supported person to take over during a period when the supported person is unable to manage.

A statement in advance is one method to ensure that contingency plans are put in place in a way that respects the will and preferences of supported people. For example, a person could write down what a support worker should do if they have a crisis, write guidelines for how to assess risk or provide a list of useful telephone numbers that the support worker could phone for advice or information, if necessary. This can ensure that if the supported person becomes ill they retain as much control and choice as possible of the arrangements, and are able to regain full control if they become well again. This may help prevent the supported person reverting to local authority provision unless they wish this to happen.

The authority should ensure that it has the necessary systems and processes in place to ensure continuity of funding during times of crisis. For example, where the person chooses to use their payment to employ their own staff the authority should take steps to fund PA employer support during short stays in hospital, where appropriate. This will enable the supported person to continue to pay employees for the initial four weeks of any hospital stay.

The authority should encourage PA employers, including through independent support organisations, to include arrangements for hospital admission within the employment contract and terms and conditions. In all circumstances the statutory requirements governed by employment legislation must be applied.

The authority should discuss what arrangements the supported person wishes to make for emergencies. If the authority becomes aware that the person is unable to secure support to meet their needs, the authority's responsibility to arrange emergency support for that person is the same as if the supported person chooses Option 2 or 3 under the 2013 Act.

The authority may decide to step in temporarily to arrange the necessary services but it should first consider providing assistance to enable the person to continue to manage their own support. Examples might include making arrangements with independent agencies for emergency cover.

Where difficulties arise that were not anticipated it is helpful if the supported person knows they can contact a named individual in the local authority or a local support service whom they can ask for help. Such contingencies should form part of the supported person's support plan.

An authority can promote the role of PAs by collaborating with other authorities nationally or regionally to support this workforce for example by providing training for PAs, setting up PA vacancy pages or relief PA banks so that more PAs are available who are prepared to work additional shifts at short notice when necessary.

See information on short-term arrangements within the section on powers to terminate a direct payment