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Section 8 WHEN DIFFICULTIES ARISE
196. Section 7 looked at the process of making, managing and monitoring payments. Section 8 considers what users and local authorities need to do when difficulties arise.
Introduction
197. If the local authority's monitoring or review process reveals that the person's needs are not being met, or if the person contacts the authority to seek emergency assistance, the local authority will need to consider what action it should take. Good communication between the different parts of the local authority involved will be very important at this stage. This may mean helping people to make other arrangements, or it may mean arranging services directly until they are able to make their own arrangements once more.
198. When difficulties arise, the local authority should ask itself the following questions:
- Have the person's needs changed? If so, the person's needs should be reassessed and the level of direct payments should be reviewed.
- Is the amount of money sufficient to enable the person to secure the relevant services? It may be that experience shows that there are other costs which were not taken into account when the cost was calculated initially, or that anticipated costs have not, in fact, arisen. It may be necessary to review the level of direct payments.
- Is the person still able to manage direct payments? Local authorities need to continue to be satisfied that people can manage direct payments. However, difficulties will not necessarily mean the person cannot manage. There is inevitably a learning process when people begin to receive direct payments and people may make mistakes, but still be capable of managing direct payments in the longer term. Even experienced direct payments recipients may have problems at times but with some support, be capable of overcoming them.
- Does the person wish to continue receiving direct payments? As long as the local authority considers direct payments are appropriate, it should attempt to enable people to overcome difficulties and prevent them becoming discouraged when they experience difficulties. However if someone has decided that he or she no longer wishes to receive direct payments, then the local authority should enable him or her to switch to services.
- Has all the money been spent on the support for which it was intended? If the money has been diverted to other purposes there may be a case for considering seeking repayment. There may be a case for requiring repayment of some of the money even where the person has secured services to meet his or her needs, for example if he or she has secured the service for less than the expected cost and so there is a surplus. However the local authority should bear in mind that there might be a good reason for a recipient to build up a surplus on a contingency fund, for example to pay his or her employee's quarterly PAYE. The local authority should explain before someone begins to receive direct payments the circumstances in which it would seek repayment.
- Has support for which the person has paid been received? If not, then it is the responsibility of the individual to seek a refund from the service provider. If the local authority has made further provision for support to meet the same needs or if the services were not received because they were no longer required, then it may wish to consider requiring repayment of the direct payment from the individual.
- Has the money been spent wisely? If not, the person may need more support to enable him or her to manage, or the local authority may decide that he or she is not capable of continuing to manage direct payments and should receive services instead.
- Is the support being purchased safeguarding the person's welfare? If there is any doubt local authorities should speak to the individual receiving the services on his or her own (whenever possible) and review the services being purchased with them. Where an attorney, guardian or parent is consenting to the direct payments the local authority will also wish to discuss arrangements with them.
199. Difficulties can be minimised by good assessments, clarity (for example about what the money can be used for), effective monitoring and reviews, appropriate support arrangements and by discussing potential areas of difficulty, and how they will be handled, with the individual before direct payments begin. It is important not to assume that when problems do arise that the individual cannot manage the arrangements. Peer support can play an important part in helping people to work through any difficulties.
Seeking repayment
200. The 1968 Act enables local authorities to require some or all of the money they have paid out to be repaid if they are not satisfied that it has been used to secure the support (as detailed in Section 2) to which it relates. They may also require repayment if the person has not met any condition, which the authority has properly imposed, and those imposed by the regulations.
201. It is up to the local authority to decide when it is appropriate to seek recovery. However local authorities should bear in mind that this power is intended to enable them to recover money which has been diverted from the purpose for which it was intended, or which has simply not been spent at all. It should not be used to penalise honest mistakes. Local authorities should be satisfied before they start to make direct payments, that people who receive them understand all of the conditions they will be required to meet. Additional conditions should only be imposed insofar as they are necessary to ensure that the objectives of the Executive's policy in relation to direct payments are met and that the local authority's responsibilities (for example to monitor the use of public funds) are discharged. Local authorities should take into account hardship considerations in deciding whether to seek repayments. When considering whether to recover unspent funds, local authorities should also bear in mind that there may be legitimate reasons for a recipient to build up an apparent surplus as a contingency fund. This might involve outstanding legal liabilities, for example to pay an employee's quarterly PAYE, contingency funds to cover such eventualities as sick leave or to pay outstanding bills from an agency.
202. Local authorities should discuss with individuals, before direct payments begin, the circumstances in which it might wish to consider seeking repayment.
Discontinuing direct payments
203. Local authorities should not automatically assume when problems arise that the solution is to discontinue direct payments. If the local authority does decide to withdraw direct payments then it will need to arrange the relevant services instead, unless the withdrawal was following a reassessment after which it concluded that the services were no longer needed.
204. Either the local authority or the individual may decide at any time that they no longer wish to continue with direct payments. For example direct payments may be discontinued because:
- the local authority is not satisfied that the person's needs are, in fact, being met;
- the person is no longer able to manage direct payments;
- the person no longer requires a service; or
- the local authority has had cause to seek repayment of funds and has reason to fear that further payments may be misspent.
205. Clearly, wherever possible, the decision to discontinue should follow discussion with the individual and carer, and the local authority should, in any case, keep the individual informed throughout the process. (The local authority may also need to keep in touch with the Independent Living Fund ( ILF) 27 and share information where appropriate in cases where the individual is also receiving ILF funding).
206. The local authority should inform people as soon as possible if it is considering discontinuing direct payments, and if appropriate give them an opportunity to demonstrate that they can continue to manage direct payments. Local authorities should set a minimum period of notice, which will normally be given before direct payments are discontinued, and include it in the information to be provided to people who are considering direct payments.
207. It may be necessary in exceptional circumstances to discontinue direct payments without giving notice. For example where a child is the service user and it is clear that his or her welfare is in not being safeguarded. In considering this course of action, local authorities will first need to take account of the individual's contractual responsibilities with a service provider or an employee. They will also have to take into consideration any outstanding financial liabilities the individual may have. Local authorities should explain to people, before they begin to receive direct payments, the circumstances in which they might be discontinued with no notice and discuss with them the implications this has for the arrangements that people might make.
208. Local authorities should continue direct payments where a person enters hospital for less than three months 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, avoid repeating the costly and time consuming PA recruitment process (particularly in areas where PAs are difficult to recruit) and the need for interim care arrangements, and where local policy arrangements allow, to ensure that personal care can continue to be delivered in the temporary hospital setting.
209. There may be circumstances in which the local authority wishes to discontinue direct payments temporarily . For example when a person enters hospital for a longer period, or because his or her condition improves. Similarly when a person is temporarily unable to manage direct payments even with support (perhaps again due to fluctuation in his or her condition or the support available). In these cases, the local authority will need to discuss with the person how best to manage. The aim should be to enable the person to resume responsibility for his or her own services after the interruption, if that remains his or her wish.
210. The local authority might decide to take over the management of the person's arrangements in the interim. In considering whether it is practical, desirable and cost-effective to maintain the person's arrangements, the local authority should bear in mind any contracts into which the person has entered. For example the local authority will not be able to take over a contract with a service provider which is not registered with the Care Commission. Likewise it may not be practicable for the local authority to take over the employment of a PA. The local authority should discuss with the person before starting to make direct payments what could happen in the event that direct payments are discontinued, albeit temporarily.
211. Where direct payments are discontinued, some people may find themselves with ongoing contractual responsibilities or having to terminate contracts for services (including possibly making employees redundant). The local authority will wish to discuss this with people before they begin to receive direct payments and agree how this would be handled. Local authorities should also consider how to recover unspent direct payments if the recipient dies. For example, if someone wishes to pay an agency in advance for its services, the local authority should bear in mind that it may be difficult to recover money paid for services which were not in fact delivered. Local authorities should also consider that before his/her death the recipient might have incurred liabilities, which should legitimately be paid for using the direct payments. For example, he or she received services for which payment had not been made at the time of death. There may also be occasions where additional funding is required to settle liabilities in full.
Local authority complaints procedures
212. Direct payments recipients who experience difficulties with the service their local authority is providing should in the first instance try to resolve difficulties with their care manager or direct payments lead officer. Local support organisations may have a role to play supporting users in clarifying difficulties and expectations and offering advocacy where this is possible.
213. In the event of informal discussions not resolving an issue or difficulty, users can make use of their local authority's complaints procedure. People may make complaints about any action, decision or apparent failing of the local authority and individuals will have recourse through the Scottish Public Services Ombudsman (see Annex F) once all other avenues have been exhausted, but not about services which they have secured from independent providers (including people they employ directly) using direct payments. However, people should address any complaints that they may have about the services they purchase to the service providers themselves and take up complaints about their PAs with these employees. Alternatively, a complaint can be made to the Care Commission about any registered service or, indeed, about the actions of the Care Commission itself. Support organisations such as the Independent Living Centres and SPAEN can provide information and advice about how to conduct any complaints.
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