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

Part 4: Consultation, information and support

106. Consultation

107. Local authorities are required to seek the views of representatives of people who use community care and children's services when preparing their Community Care or Children's Services Plans. This should include representatives of people who receive or are likely to receive direct payments and their carers.
109. The purpose of direct payments is to put more control in the hands of people who need the services and this should start right at the beginning of the process. It is important that local people should be consulted fully as local arrangements for direct payments are set up. Local authorities should consult representatives of people who might wish to receive direct payments and others with an interest, including local support organisations and service providers, when considering how to implement the direct payments provisions in sections 12B and C of the 1968 Act. They should also take care to avoid focusing on one group of potential users to the exclusion of other groups and should not make the assumption that organised groups necessarily represent the views of all users or carers in the locality.
111. In particular, care should be taken to include the views of people with different types of impairments, people from black and minority ethnic backgrounds and people of different ages. Local authorities should consult older people, parents of disabled children and people aged 16 and 17 who have previously been unable to access direct payments and seek their views on implementing them. They should also consult people with the kinds of disabilities that have not yet been fully encompassed within many schemes, for example people with learning disabilities or sensory impairments or people who are mental health services users. The views of informal carers and of potential providers will also be important. Whatever form the consultation takes, it is important that people who have been consulted receive feedback about what has happened, and how their views were taken into account. It is also important that the lines of communication remain open, so that the local authority remains responsive to users' views over time.

112. Information

113. People should be made aware that there is an alternative to local authority arranged community care and children's services. Direct payments should, therefore, be included in the information about the services available which local authorities already provide. More detailed information about direct payments should be made available separately in formats that are accessible to people with different forms of disability and to people whose first language is not English. Consulting a user-led support organisation might be helpful to ensure that information is presented in accessible formats.
115. Some people may have little real knowledge about their current services, how they operate, who pays for the services or who controls the spending. Information about direct payments may be meaningless if people do not understand the system that they replace. Information provided should also give details of the support available to people locally and nationally. It should include details of how to get in touch with the Business Support Team at the Inland Revenue ¹⁰ who can offer support with employing staff.
117. A guide ¹¹ for people who would like more information about receiving direct payments is available from the Executive or Direct Payments Scotland. This should be made available to people as an introduction to direct payments. An Executive booklet to help people with learning disabilities will also be available in the summer of 2003.
119. The Executive would expect to see information about direct payments in local authority Community Care Plans. We would also expect Partnership in Practice agreements (PiPs) to set out how the local authority will help people with learning disabilities access direct payments. PiP agreements contain plans to put in place local area co-ordinators to promote direct payments for people with learning disabilities. Local area co-ordinators will get to know people with learning disabilities and their families in their local communities and help identify their needs and get their needs met. They should be able to help people with learning disabilities access direct payments.
121. Direct Payments Scotland has produced a Five Steps Guide ¹², which helps local authorities to plan and set up direct payments. (See Annex B for contact details.)

122. Support

123. Research ¹³ shows that developing a support system is a prerequisite of a successful scheme. Research also shows that the existence of a local support organisation reduces the work of the local authority. It is therefore imperative that local authorities arrange for people to have access to this type of support particularly in the early stages. A support service helps to produce better outcomes for both direct payments recipients and local authorities. The level of investment a support system needs will partly depend on the type of service provided. It also needs to be proportionate to the expected number of people receiving direct payments - the more people that receive direct payments, the more support workers will be needed. It is important that the support comes from a user led organisation which involves services users either as employees or on its management committee.
125. This section should be read in conjunction with Five Steps - A Guide to Providing Direct Payments Support Services (2002) produced by Direct Payments Scotland. It has also produced a fact sheet on The Role of the Support Organisation. (See Annex B for contact details.)
127. People who receive direct payments may need particular support when they first take on responsibility for managing their own services. People who are becoming employers for the first time may benefit from having access to someone with expertise in employment issues, or to a payroll service which will assist them with tax, National Insurance or other matters. A user-led support service may also be able to provide practical assistance. For example it could hold a list of local agencies, help contracting with agencies, help people to draft advertisements, job descriptions and contracts, provide rooms for interviews and assistance with interviewing, or act as an address for responses to advertisements. A support service might also arrange training, for example in budgeting or assertiveness skills. Scottish Personal Assistants Employers Network (SPAEN) can also provide advice and information about employing personal assistants. (See Annex B for contact details.)
129. People who receive direct payments may also find it helpful to have access to advocacy support. A support service may be well placed also to act as an advocate for local users as a group, particularly when the local authority is considering changes to the scheme. However it may well be preferable to separate any support role from an advocacy role on behalf of individuals, to avoid any conflict of interest. (See paragraphs 122 and 123 for more details.)
131. Local authorities should also consider whether it would be helpful for other people to have access to any support service. For example, carers may need advice about how direct payments work, particularly if they are assisting their friend or relative with managing the payments. Attorneys and guardians might find this helpful as well. People who are self-funding their services may also welcome the advice of a support service. It may also be helpful for employees of people receiving direct payments to have access to training or support.

132. Supported Decision Making

133. The Adults with Incapacity (Scotland) Act 2000 ("the 2000 Act") starts from the premise that everyone has the capacity to consent until proved otherwise. Under the 2000 Act a person cannot be deemed incompetent to consent to direct payments purely on the basis that they have, or are suspected of having a learning difficulty. Similarly, an individual cannot be deemed incompetent to make a decision about one aspect of their life, simply because they have been deemed incompetent in other areas.
135. Each decision relating to capacity can only relate to that particular decision making area. Local authorities need to be clear about what choices and decisions are involved in consenting to direct payments. For example are they consenting to stay in their own home, or to be able to choose their own support worker, or to go on a college course one day a week instead of to the day centre? An assessment about capacity to consent needs to be clear about an individual's ability to express preferences about all areas of their life in order for a judgement to be made about the choice and control an individual has over the decision to have direct payments and what this will mean for them.
137. Research ¹⁴ has shown that people with learning difficulties, when given the right support, can exercise control over their own services enabling them to achieve a better quality of life. If a service is right for an individual and works successfully, the consent issue is unlikely to be challenged. It is important to put in place appropriate safeguards (i.e. supported decision making in the form of a Trust, 'Circle of Support', or advocate) so that people who might be regarded as being vulnerable are not exposed to risk from abuse. It is also necessary to ensure that control does not slip or pass to third parties. Local authorities should satisfy themselves that the support structure is appropriate and that adequate time is allowed for the relationship to develop between the individual and the people providing the support. Supported decision making is the best way to ensure an individual is able to consent to and exercise appropriate choice and control over direct payments. This approach emphasises the right of people to whatever assistance they need in order to be self-determining. It also highlights the process of making decisions. Further information on this is available in Values Into Action publications ¹⁵.

138. Independent Advocacy

139. The role that independent advocacy can play in the successful operation of the direct payments system should be considered by local authorities. In general, independent advocacy can help to:

• promote respect for the rights, freedoms and dignity of people, both individually and collectively;
• ensure people receive the care or services to which they are entitled, and which they wish to receive;
• enhance people's autonomy;
• assist people to live as independently as possible and in the least restrictive environment; and
• help protect disadvantaged people from abuse and exploitation.

124. The Minister for Health and Community Care has been explicit in his expectation that all NHS Boards, in partnership with their local authority planning partners, should ensure that independent advocacy is available to all those that need it. Further assistance and copies of the guidance ¹⁶ are available from the Advocacy Safeguards Agency (see Annex B for details).

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