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Social Work (Scotland Act 1968, Sections 12B and 12C - Direct Payments
Draft Policy and Practice Guidance

Part 1: Introduction

Purpose

2. This guidance is issued under Section 5(1) of the Social Work (Scotland) Act 1968 ("the 1968 Act") and takes effect from 1 June 2003. It sets out the Executive's view of how local authorities can make the most of the new duty placed on them to offer direct payments by Sections 12B and C of the 1968 Act and advises on how they might implement this duty. It aims to offer advice and help local authorities set up a simple but effective direct payments system which contains safeguards which are not unnecessarily bureaucratic or time consuming.
4. This guidance replaces the policy and practice guidance issued under cover of circular CCD: 8/2002 on 10 July 2002 and advises on how the direct payments legislation can be applied from 1 June 2003.
6. The Community Care (Direct Payments) Act 1996 ("the 1996 Act") inserts sections 12B and 12C into the 1968 Act. These sections are further amended by section 70 of the Regulation of Care (Scotland) Act 2001 ("the 2001 Act") and section 7 of the Community Care and Health (Scotland) Act 2002 ("the 2002 Act"). They give local authorities, the power to make payments to people of a description specified in regulations under section 12B, enabling them to arrange and purchase the community care or children's services they have been assessed as needing. The Community Care (Direct Payments) (Scotland) Regulations 1997 ("the 1997 Regulations"), as amended by the Amendment Regulations 2000, 2001 and 2003 specify who cannot receive direct payments and certain conditions attached to their use.
8. A direct payment is a cash payment made by a local authority to an individual (or in certain circumstances his or her representative) who has been assessed as needing community care or children's services. The local authority makes the payment instead of arranging the services it has assessed the person as needing. The payment is then used to secure the relevant services. So long as the local authority is satisfied that the person's assessed needs will be met through the arrangements made using the direct payments, it is relieved of its responsibility to arrange those services for that person.
10. We know that direct payments present an opportunity to bring about improvements in the quality of life of people, adults and children, who choose to receive direct payments to manage their own services. It is inevitable that local authorities' control over this money is less direct than where they provide or purchase services directly and there are risks involved. On the other hand, day-to-day control of the money is passing to the person who has the strongest incentive to ensure that it is spent properly on the necessary services and is best placed to judge how to match the available resources to his or her needs.
12. Research ¹ shows that there are few disadvantages associated with direct payments and that they can benefit not only the service user but also family members and the local authority. It also suggests that people's fears and anxieties are largely dissipated once they start direct payments and ways are found to overcome the barriers associated with their use.
14. Operating direct payments effectively can involve handling some complex issues, and it is worth taking time to think through all the areas covered in this guidance. It aims to give advice to enable local authorities to carry out their duty effectively whilst minimising the risks involved. Local authorities may find it helpful to designate a contact point within the authority, for individuals and organisations involved with direct payments, with responsibility for answering queries and for identifying and addressing any problems that arise.
16. Direct payments are a different way of fulfilling existing responsibilities to people who require community care and children's services and this guidance is intended to supplement existing guidance to explain how the Executive sees direct payments fitting into the wider community care and children's services arena. This guidance should also be read in conjunction with "Five Steps: A Guide for Local Authorities to Implementing Direct Payments" devised by Direct Payments Scotland ² and issued to local authorities in April 2002. (Further copies are available from Direct Payments Scotland. See Annex B for contact details.)
18. In this guidance the term 'carer' is used to refer to someone providing assistance in an informal or unpaid capacity. It does not therefore, include people whom the individual pays to provide services using direct payments.
20. Direct payments can be made in lieu of community care services. For the purposes of the direct payments legislation "community care" services are defined by section 5A of the 1968 Act as "..services, which a local authority are under a duty or have a power to provide, or to secure the provision of, under Part II of the Act or section 7 (functions of local authorities), 8 (provision of after-care services) or 11 (training and occupation of the mentally handicapped) of the Mental Health (Scotland) Act 1984". This definition includes housing support services. Since December 2001 direct payments have also been available to certain people for services provided under section 22(1) of the Children (Scotland) Act 1995.
22. At present direct payments are only available to adults and children who meet the definition of disabled in section 94(1) of the 1968 Act "persons in need" subsection (b) i.e. persons who suffer from illness or mental disorder or are substantially handicapped by any deformity or disability..".

23. Context, policy aims and objectives

24. The Executive's aim, in placing a duty on local authorities to offer direct payments, is to increase the independence of disabled adults and children by giving them more choice and control over the way the services they require are delivered. The Executive believes that direct payments not only aid social inclusion but can also help deliver a more person-centred approach to the provision of services. It has therefore legislated to ensure that all local authorities offer direct payments to eligible people. This means that local authorities must make eligible people aware that there is an alternative to more traditional service delivery and that they have a choice.
26. Local authorities should seek to leave as much choice as possible in the hands of the individual, allowing people to address their own needs in innovative ways, whilst the local authority continues to satisfy itself that the person's assessed needs are being met, and that the money is being spent appropriately and cost-effectively. Ultimately direct payments are about promoting independence, and this is achieved most effectively when they are introduced in a spirit of partnership between the local authority and the person who requires the service.
28. It is important to say at the outset, that by promoting direct payments the Executive is not advocating for traditional forms of service delivery to be abandoned. We recognise the high quality of the services arranged by local authorities. Furthermore, direct payments are not the only way in which local authorities can promote independence and give people more influence over the way the community care services they need are provided. It is important that local authorities continue to develop ways of making their services more person-centred and responsive to the needs and wishes of service users. We acknowledge that for a variety of reasons, many service users will prefer to receive directly provided services rather than receive direct payments to make private arrangements themselves. Some people may however wish to use direct payments to purchase services from a local authority thereby giving them more control over the delivery of those services (See paragraph 59 to 62). Alternatively they may wish a combination of local authority services and direct payments. What is essential however, is that people are given the opportunity to decide this for themselves.
30. Local authorities should not treat people who receive direct payments any more or any less favourably than people who receive services arranged by them directly.

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