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Section 4: SUPPORT THAT CAN BE BOUGHT WITH DIRECT PAYMENTS
86. Section 3 considered the additional support that some people may need to consent and manage direct payments. Section 4 gives guidance on the services and other support that users can buy with their direct payments. The option of becoming a PA employer is considered in section 5.
Support from service providers
87. Purchasing support from voluntary service providers or private care agencies is the chosen means of delivery for the majority of direct payments users in Scotland at present, as well as an option by which many service users explore use of direct payments before they decide whether to become a PA employer.
88. An individual who wishes to purchase a service can find out about its quality from the Scottish Commission for the Regulation of Care (the 'Care Commission'). 13 The Care Commission regulates a range of community care services, including care at home services and day care provided by local authorities and independent and voluntary agencies, housing support service providers, child-care agencies and individuals providing childminding services.
89. Local authorities should allow people to purchase support from any provider who is able to provide a service which will meet the individual's assessed needs. Although local cost ceilings may be applied, it is best practice that cases are looked at on an individual basis and sufficient funding should be provided to allow the recipient to purchase support from a chosen provider.
Purchasing local authority services
90. An individual may approach any local authority to secure the services he or she has been assessed as needing. This is intended to enable people to have more control over the services they receive, particularly in remote or rural areas, where a neighbouring local authority might be the sole provider of the services required. It also opens up the possibility of adjacent local authorities working together to develop 'shared' services.
91. There is no duty placed on a local authority to sell services. Instead they can choose whether or not to sell services in any particular case. However, buying local authority services must not be a precondition of making direct payments.
92. The local authority should consider a request from a user of a neighbouring authority to purchase its services in the context of existing demands on its resources, ensuring first that the needs of the people to whom it has an obligation to arrange services are fully met. The services should be 'sold' at no more or no less than the full cost to the local authority of providing the services.
93. Local authorities may consider it appropriate to include extra cost, such as travel, where provision by another local authority is the only way of meeting the needs of an individual.
Housing support services
94. Housing support services 14 are services other than care or housing management services that enable a person, aged 16 and over, to establish or maintain occupancy of a dwelling. These services are provided to help people live as independently as possible in their own homes and might include help with home safety and security or to set up a new tenancy. Housing support services come within the definition of community care services, as defined by section 5A of the 1968 Social Work (Scotland) Act (the '1968 Act) and from June 2003 local authorities have a duty to offer eligible people direct payments to purchase these services (including those funded by Supporting People. 15 Individuals can use registered service providers to deliver these services using direct payments, or employ someone directly.
95. Disabled 16 and 17 year olds (or their parents) can access housing support services for children under section 22(1) of the 1995 Act.
96. For those aged 18 or over, if no needs other than housing support services are identified a 'Simple Assessment' should be carried out looking only at the level and type of housing support service required.
Equipment and temporary16adaptations
97. The 1968 Act places a duty on local authorities to offer direct payments so that disabled people may purchase for themselves equipment and temporary adaptations, which would otherwise be provided by local authority social work services. Information provided about equipment and temporary adaptations (including those relating to a sensory impairment) should give details about receiving direct payments.
98. When making direct payments for an individual to purchase equipment or temporary adaptations, the local authority should bear in mind the specialist expertise that may be needed to ensure that what is purchased is safe and appropriate. As well as the payment to cover the initial outlay, local authorities should include continuing a smaller direct payments package to cover service and repairs where the individual is able to provide confirmation that he or she has an annual service agreement for the equipment/adaptation. Local authorities should also consider whether an element of funding is required to pay for specialist training to use the equipment. Alternatively, the local authority could continue to maintain the equipment or arrange the maintenance under contract.
99. Ownership of the equipment (which may constitute part of an adaptation) or adaptation bought with a direct payment can lie with the individual and with it the responsibility for service and repair. This needs to be clarified with the individual at the outset.
100. People may also have the option to donate equipment (and temporary adaptations) back to the local authority. In these circumstances the local authority will wish to ensure that the equipment being donated has been properly serviced, repaired and maintained and is still fit for purpose.
101. Direct payments cannot be used as a substitute for Housing Improvement and Repair Grants for adaptations for disabled people or for any adaptation that would normally be provided by a landlord. Nor can they be used to purchase equipment that would normally be provided by the NHS, for example wheel chairs.
102. The Scottish Executive is currently reviewing separate guidance on equipment and adaptations in line with the Joint Future Agenda. 17 An Implementation Steering Group has been established to take forward the recommendations of the Strategy Forum's report, Equipped for Inclusion18(Further advice will be issued on completion of this work).
Health needs and continuing health needs
Example: A successful joint funded package
"Problems become challenges, and challenges yield solutions".
Margaret has benefited from a joint-funded package from her local authority, Health Board and Independent Living Fund for over 3 years. Without this support, she would have moved from hospital to another institution, where her quality of life would have been restricted by rules and regulations.
Instead, her joint-funded package has allowed her to return home to her flat to enjoy the companionship of a near relative, to return to university (counselling course) and college (upholstery course) and to start undertaking voluntary work. Margaret feels this has been possible due to good support, an understanding and committed GP, an excellent 'in house' council support service providing visits, telephone support and expertise, and selecting nursing agencies that are committed to the ethos of the package and can provide high quality staff.
'At 45, and a Law graduate, I have enjoyed 3 years of independence and the simple things that many take for granted. I am able to eat the food I want when I want. I've managed to remain in control of my life, to continue driving my adapted vehicle, and have the enjoyment of a new pet - a kitten'.
103. Research has shown there can be distinct advantages for service users when they are able to manage their needs holistically. Where a package of support includes jointly commissioned services with health (for example, skincare) the management of pressure sores, the administration of percussive physiotherapy, local authorities are encouraged to work with their NHS partners to provide a joint direct payments package wherever possible, covering health and community care. Such health needs must be met by someone who is professionally trained.
104. 'Continuing' health care needs such as for some aspects of epilepsy and diabetes care, are services that can be delivered by a PA provided that they have been trained by NHS staff. Local authorities will need to ensure that NHS staff are involved in this training to ensure that procedures are carried out correctly. Likewise staff may need to be trained in the use of specialised equipment.
105. Local authorities will need to liaise with NHS bodies to develop protocols around the assessment and monitoring of direct payments with a health care component. In most instances this will mean that health care staff will need to monitor the fulfilment of healthcare needs in order to ensure the necessary expertise.*
106. Where it is not possible for direct payments to be made in lieu of the healthcare element of a joint package, local authorities should work with their NHS partners to ensure that the services required are delivered in such a way as to maximise independence for the individual. In particular it should not impede the individual's ability to make choices about the services being purchased with direct payments.
107. Issues surrounding employer liability in the event of an accident or error by staff providing joint packages must be discussed with the individual and his or her family or carers in advance, so that they understand their responsibility. Local support organisation can give individuals advice about taking out an insurance policy to cover employer's liability.
108. Integrating care and health through joint management and funding should lead to more responsive relationships between users and service providers, including the creation of more holistic and flexible packages supported by direct payments. The legal mechanism for joint working is as follows. Under The Community Care (Joint Working etc.) (Scotland) Regulations 2002 ( SSI 2002 No.533) ('the 2002 Regulations'), local authorities have the power to delegate the functions of making direct payments to relevant NHS bodies and the Regulations allow for the pooling of funds for this purpose. Local authorities are encouraged to work with their NHS partners in accordance with the 2002 Regulations, subject to joint outcomes from the pooled fund being agreed in advance of establishing the fund. The Joint Future partnership working between community care and health services is already leading to more flexible and better targeted care-at-home services, including direct payment packages.
Residential accommodation, short breaks and respite
'…Direct payments have totally transformed our lives. There were absolutely no respite facilities locally who could take our son. We are (now) in control of obtaining respite care and have been able to send our son on adventure holidays, where he has fun and we get a much needed break!...' (Parent of a son with learning disabilities)
109. Direct payments may not be used to purchase long-term stays in residential accommodation for adults or children, but can be used to purchase short breaks (or respite) subject to the maximum period specified by the 2003 Regulations.
110. Direct payments may be used to pay for short breaks in a traditional residential respite provision or towards purchasing more flexible respite options. For example, some local authorities allow direct payments to be used for a PA to accompany a user on an independent break, so providing a complete break for the carer, or children may have a short break with a specialist care worker (see section 12 on children's services. Another example is when a local authority allows direct payments to be used for a PA to accompany a user and carer on a joint holiday, providing respite for the carer without the need for separate arrangements, for example to allow a disabled child to enjoy a family holiday.
111. Regulation 6 of the 2003 Regulations specifies that where two periods of respite are less than 4 weeks apart, they should be added together to make a cumulative total. The cumulative total, calculated in this way, cannot be more than 4 weeks in any twelve-month period. However, if the two periods are more than 4 weeks apart they are not added together. For example, someone might have a one-week stay in residential accommodation every 6 weeks. Because each week in residential accommodation is more than 4 weeks apart, they are not added together. The cumulative total is only one week and the 4-week limit is never reached. Another person might have 3 weeks in residential accommodation, 3 weeks at home, and then another week's respite on an independent break with their PA. The 2 periods away from home are less than 4 weeks apart so the person cannot use their direct payments to purchase any more respite within a 12-month period. However if the local authority considers that further residential accommodation is needed, it can still arrange and fund residential accommodation for the person in the traditional way.
Buying services from a self-employed PA
112. Personal assistants ( PAs) are usually employed directly by the direct payments recipient, who takes on an employer's responsibilities for the PA's tax, national insurance etc. This is because personal assistants cannot be self-employed if the direct payment recipient is likely to want to decide when someone works, who the person is that they see, and how they work (which they cannot guarantee if a person is self-employed and can send a substitute for themselves to do their work). For full details on becoming an employer of personal assistants, see section 5.
113. However there may be instances where a user wishes to use a PA who is already self-employed, and able to provide proof from the Inland Revenue that they can provide a service to the individual as a self employed person. A PA cannot be asked to be self-employed to avoid the direct payments recipient taking on employer's responsibilities such as paying tax and national insurance. Details of the criteria the Inland Revenue apply to determine if a worker should be classed as self-employed are given at the HM Revenue and Customs website 19. (Note that it is important that users see this proof as in the event of any dispute arising from a person who turns out not to be self-employed, the Inland Revenue can reclaim any unpaid tax and national insurance from the direct payments recipient).
114. If a user decides to contract with a self-employed worker, the self-employed worker is responsible for:
- providing a service agreement detailing items such as how much the worker is charging and how they will invoice;
- providing a written statement to the effect that they will take responsibility for the paying of tax and national insurance;
- funding their own training, including ensuring that they are trained to carry out the service they are offering.
115. Buying services from a self-employed PA is the only instance whereby a direct payments user can purchase a service that is not regulated by the Care Commission. This means that the user has some additional responsibilities. For example, they should ensure that evidence of appropriate training by the self-employed PA is provided. They must also arrange emergency cover for any periods of absence the self-employed worker may have from the contracted work. The self-employed person is not able to arrange this cover unless they are registered with the Care Commission as an agency, (otherwise they are effectively sub-contracting). Only registered agencies are able to provide cover as part of their service agreement. If the local authority suspects that someone is acting as an agency and is not registered, they have a duty to report this to the Care Commission.
116. Finally if there is any doubt about whether the terms and conditions under which a worker is carrying out their duties are those of self-employment, then the direct payments recipient must seek advice from the Inland Revenue.
Services or support?
117. Most of section 4 describes the services that people use to meet their assessed needs, whether from service providers, neighbouring local authorities, for housing support services, equipment and temporary adaptations, health needs and continuing health needs, residential accommodation, short breaks and respite, and even on rare occasions, from buying services from a self-employed PA (which is not to be confused with the salaried PAs described in section 5).
118. However, thinking in terms of services to meet a person's assessed needs may be limiting compared to thinking of their support needs. There may be more creative support options available outside mainstream services, for example therapeutic support for those recovering from mental illness. Section 13 lists some uses direct payments have been put to, such as engaging in a preferred form of meaningful activity instead of a day service (for example, joining a fishing club, or as a group of users, hiring an art teacher); and moving into employment (for example, a group renting a workshop, or employing someone for a short period to get a small enterprise off the ground). All of these are uses of direct payments which fall outside of the description of services in most peoples' understanding, but which have proved to be effective in meeting these individuals' assessed needs.
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