Child Disability Payment decision making guide
Suspension because person unable to continue acting or individual at risk of financial abuse
Overview
Some individuals have a representative who deals with Social Security Scotland on their behalf.
This might be:
- someone with legal parental rights and responsibilities (Children (Scotland) Act 1995, ss. 1 and 2) for a child
- someone appointed by Social Security Scotland to act on their behalf (SS(S)A 2018, ss. 85A and 85B)
- another person that Social Security Scotland has arranged to pay on their behalf ( CDP Regs, reg. 22, ADP Regs, reg. 33)
- someone who is the individual’s Guardian (Adults with Incapacity (Scotland) Act 2000, s. 57) or Deputy
- someone who has a Power of Attorney (Adults with Incapacity (Scotland) Act 2000, s. 15)
- someone who is an intervener.
In such cases, this involves arranging for a person to receive payments on behalf of the individual.
Where a person has been appointed by Social Security Scotland, they can do anything the individual could do in relation to the individual’s entitlement to assistance (SS(S)A 2018, ss. 85A and 85B).
Appointees therefore have responsibility for all the following:
- the contents of any application, including making the legal declaration on the individual’s behalf
- supplying any information required by Social Security Scotland
- receiving and responding to letters and communications from Social Security Scotland
- exercising dispute rights on behalf of the individual
- reporting changes to their own circumstances, and the individual’s circumstances where they may be relevant to administration of the individual’s benefits
- receiving payments and ensuring the money is spent for the benefit of the individual
- supporting the individual to participate in decision making to the extent that they are able, considering their past and present wishes
- they can also enter into or end an agreement in relation to the hire or hirepurchase of a vehicle through the Accessible Vehicles and Equipment Scheme where appropriate.
Case managers can suspend payments when they have arranged for another person to receive assistance on behalf of the individual if either of the following apply:
• the arrangement is putting the individual at risk of financial abuse (CDP Regs, reg. 26A(3)(b)(i), ADP Regs, reg. 38(3)(b)(i) and SCP Regs, reg 19A(3)(b)(i))
• the person is unable to continue receiving payments on behalf of the individual (CDP Regs, reg. 26A(3)(b)(ii), ADP Regs, reg. 38(3)(b)(ii) and SCP Regs, reg 19A(3)(b)(ii)).
If the case manager decides to suspend payments being made to someone with authority to act for the individual, they must notify both:
- the person acting for the individual
- the individual.
Purpose of suspension in these situations
The purpose of suspension in these situations is to:
- prevent unlawful payments being made to another person
- protect the individual’s funds
- reducing the risk of overpayments.
Individual is at risk of financial abuse
Individuals who are unable to act for themselves are among the most vulnerable in society and several government agencies have responsibility for ensuring they are protected from abuse and exploitation, whether financial, psychological, physical or sexual.
Social Security Scotland has no statutory duty of protection. However, Social Security Scotland has an ongoing responsibility to ensure that payments are made for the benefit of the individual.
Financial abuse includes (SS(S)A 2018, Sch. 11, para 1, CDP Regs, reg. 26A, ADP Regs, reg. 38, SCP Regs, reg. 19G.):
- having their money or other property stolen
- being defrauded
- being put under pressure in relation to money or other property
- having their money or other property misused by another person
This list is not exhaustive.
The suspension must not last any longer than is necessary. This means that while payments are suspended, case managers must actively take steps to resolve the need for payments to be suspended.
If the person receiving payments is an appointee appointed by Social Security Scotland, the case manager needs to consider ending the appointment so that the person is no longer the individual’s representative.
The Client Representative Guidelines set out further guidance on steps case managers should take when they are considering ending an appointment.
Requests from public authorities to suspend assistance
Several public authorities such as Police Scotland, local authorities and the Office of the Public Guardian Scotland are responsible for investigating suspected instances financial abuse and protecting the possessions of victims of financial abuse.
Social Security Scotland should suspend payments if asked to do so by such a public authority. Payments should be suspended while an alternative arrangement is made that allows the individual to benefit from the assistance that they are entitled to without being at risk of financial abuse.
Before suspending payments in response to a request by a public authority, the case manager must co-ordinate with the public authority to ensure that the date that first payment will be missed is known to them. This is because this could be a dangerous or volatile situation for the individual and precautions may be necessary to ensure they are not put at further risk when the person concerned learns of the suspension.
These public authorities will generally have considered the client’s financial circumstances before making this request. Social Security Scotland checks with these public authorities that they have assessed that the risk and scale of the suspected financial abuse is proportionate to any hardship that the suspension may cause the individual.
Case managers should remind public authorities that if the person receiving payments is also the individual’s legal representative, then they will be personally notified of the decision to suspend payments.
The Office of the Public Guardian (Scotland)
The Adults with Incapacity (Scotland) Act 2000 (‘the 2000 Act’) (Adults with Incapacity (Scotland) Act 2000 and the Adult Support and Protection (Scotland) Act 2007) gives the Public Guardian for Scotland certain powers to investigate concerns and take steps to safeguard financial matters of adults regarded as ‘incapable’, where it appears they are at current or future risk.
While they mainly investigate situations involving Power of Attorneys and Guardians they can also investigate in situations where a person may lack capacity but does not already have anyone acting for them.
They will take steps to safeguard the individual’s finances where it appears they are at risk. This could include Social Security Scotland appointees.
Local Authorities
Local authorities have a duty (Adults with Incapacity (Scotland) Act 2000 and the Adult Support and Protection (Scotland) Act 2007) to make the necessary inquiries and investigations to establish whether an adult is at risk from harm or if further action is
required to protect the adult’s well-being, property or financial affairs.
When a person is not able to continue to receiving payments
There are a range of situations where payments may be being made to a person on behalf of the individual and the person becomes unable to receive them.
The overriding concern in these cases is that if payments continued to be made to the account or person concerned, the individual would not actually benefit from the payments made.
In these circumstances, it may be appropriate to suspend if:
- the case manager has made checks to identify an alternative arrangement for payment
- there are no suitable alternative arrangements that are possible before the individual’s next payment is due to be made (CDP Regs, reg. 26A(3)(b)(ii) and ADP Regs, reg. 38(3)(b)(ii), SCP Regs, 19A(3)(b)(ii)).
For example:
- the person receiving the payments dies or becomes too unwell to manage the individual’s payments
- a corporate acting body such as a Care Home closes suddenly
- a Power of Attorney, Guardian or Appointee is revoked or resigns suddenly, and no substitute client representative is in place
- the individual withdraws consent for payments to be made to another person’s account and there is no alternative arrangement in place for the individual to receive payments.
This list is not exhaustive.
Jayden is entitled to ADP. Jayden’s brother has been appointed to act on their behalf, as Jayden lacks capacity to manage their own entitlement. Following an argument, Jayden’s brother decides that he is no longer willing to act on Jayden’s behalf. The case manager notices that Jayden has just been paid ADP and their next payment will not be due for another four weeks. Rather than suspend payments, the case manager makes urgent enquiries to see if there is someone else who is willing to act on Jayden’s behalf. Jayden’s sister has indicated that she is willing, so the case manager organises an urgent referral to Local Delivery to consider appointing Jayden’s sister.
Cade is 17 and entitled to CDP. Cade’s mum has been appointed to act on their behalf, as they are unable to manager their own entitlement. Cade’s mum is involved in a serious accident and is hospitalised. It appears that Cade’s mum will likely need to be discharged to a specialist care home. Cade’s family contacts Social Security Scotland to explain this. The case manager decides to suspend payments, as the next payment of CDP is due to be paid the following day. They organise an urgent request to Local Delivery to identify a more suitable appointee so that the suspension may be lifted.
Social Security Scotland must end the suspension as soon as there is a suitable arrangement in place such that the suspension is not necessary (CDP Regs, reg. 26E(d), ADP Regs, reg. 42(d), SCP Regs, reg. 19E(d)). This means that, while payments are suspended, Social Security Scotland must proactively take steps to make an alternative arrangement for the individual to benefit from the assistance that they are entitled to.