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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 10649
Experience:  30 years as a practising solicitor.
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I am no blood relation to a man i am a full-time carer the

Resolved Question:

i am no blood relation to a man i am a full-time carer for but the local social service department are using the SELF-DIRECTED SUPPORT (DIRECT PAYMENTS)(SCOTLAND) REGULATIONS 2014 REGULATION 9 to withhold any payment to my wife to be his PA because they class us as family members under the act which i think does not apply under the definition of a family member in section 8 -4(abcde)
Submitted: 10 months ago.
Category: Law
Expert:  JGM replied 10 months ago.

Can you explain a little more please? You are this man's carer, then you go on to talk about your wife and his PA. Please clarify and I will try to help you. I am a lawyer in Scotland.

Customer: replied 10 months ago.
the chap we care for was placed with us in 2012 . my wife kept her job on as i was the paid carer through an adult placement service with quarriers .i within my package had 25 hours respite per week but unfortunate for all of us this ended.the new SDS funding package was going to help restore my 25 hours by wife being his pa and to take him out on her own and so share the responsibility between us .they are saying that we are family members under section 9 of the THE SELF-DIRECTED SUPPORT (DIRECT PAYMENTS)(SCOTLAND) REGULATIONS 2014 . as we are no blood relation to the young man i feel that the statutory instrument does not apply to us .
Expert:  JGM replied 10 months ago.

The SI relates to the carer being related to the person needing care. If you aren't in that situation the SI doesn't apply and you should ask them why they think it does apply. Regulation 9 provides:

Exception to family members rule

9.—(1) Even if regulation 8(2) applies, a family member may not provide support to which a direct payment relates if—

(a)the local authority determines that either the family member or the direct payment user is under undue pressure to agree to the family member providing support; or

(b)the family member is a guardian, continuing attorney or welfare attorney with power to make decisions as regards ***** ***** to be provided through the direct payment.

(2) In this regulation—

“guardian”—

(a)

means a guardian appointed under the Adults with Incapacity (Scotland) Act 2000(1) (“the 2000 Act”); and

(b)

includes a guardian (however called) appointed under the law of any country to, or entitled under the law of any country to act for, an adult during the adult’s incapacity, if the guardianship is recognised under the law of Scotland;

“continuing attorney”—

(a)

means a continuing attorney within the meaning of section 15 (creation of continuing power of attorney) of the 2000 Act(2); and

(b)

includes a person granted, under a contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s property or financial affairs and having continuing effect despite the granter’s incapacity; and

“welfare attorney”—

(a)

means a welfare attorney within the meaning of section 16 (creation and exercise of welfare power of attorney) of the 2000 Act(3); and

(b)

includes a person granted, under contract, grant or appointment governed by the law of any country, powers (however expressed) relating to the granter’s personal welfare and having effect during the granter’s incapacity. R

Expert:  JGM replied 10 months ago.

I presume that none of that applies to you

JGM, Solicitor
Category: Law
Satisfied Customers: 10649
Experience: 30 years as a practising solicitor.
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