The thorny issue of direct payments part 1 – pre-COVID-19

This is the first of 2 posts about direct payments. I have had an increase in the queries I receive about these, and it has got me thinking. Just so I am being clear from the outset, I confess that I am not a fan of direct payments. I think they are an excellent idea in theory, but don’t tend to work in practice.

That said, I am going to begin with a little ‘myth-busting’. Because there are lots of ideas out there about direct payments, and some are plain wrong so let’s begin.

Direct payments are NOT a welfare benefit, akin to carers or attendance allowance. It is money given for a specific purpose by the local authority and their usage is strictly monitored. If you aren’t using the money appropriately, the local authority can end the direct payment, and take you to court to recover the money you spent inappropriately.

Direct payments are NOT a way to avoid paying assessed contributions to care. The calculation of an individual’s personal budget, and care contributions is a statutory process. If the local authority calculates the budget at £100 a week, and the contribution at £20, then they will usually make a direct payment of £80 a week. If only £80 a week is spent on care, and the rest isn’t needed for contingency, tax contributions etc, then that means either the care needs can be met for £80, or some care needs are being unmet. Either way, a review will need to be called and the situation looked at again. Failure to pay assessed contributions might suggest to the local authority that the person managing the direct payment isn’t suitable to do so, and they might end the direct payment altogether.

(NB I am aware my costs above are probably unrealistic, it’s an illustration of a principle and I’m keeping the maths simple)

(Also NB I am aware that some local authorities would pay the £100 and then claim back the £20, and if the assessed contribution isn’t paid, this will be pursued as a debt).

Direct payments are NOT a means to avoid local authority scrutiny. They still need to be monitored.

What direct payments are, is one way for the local authority to meet needs, which can promote independence and service user choice.

Now service users have the right to request a direct payment. This is not the same as having a right to receive a direct payment. What it means is if a request is made, the local authority must consider that request against the statutory criteria, and then give a decision. The criteria differ slightly depending on whether the request has been made by the service user, or by someone on their behalf, so I’ll go through both.

But here is the first area where issues can arise – strictly speaking, a request for a direct payment should only come from a family member if the service user his or herself lacks capacity to make this decision. Local authorities are, rightly, a bit flexible on this to recognise the informal support many people receive from their families. But if the service user has capacity then they need to consent before a direct payment is agreed. For a few overbearing family members this is the end of the consideration of their request for a direct payment.

But assuming a valid request is made by the service user, they do not have to manage the direct payment themselves, they can nominate someone to manage the direct payment for them. As per s31 Care Act 2014, this is the first condition that must be met before a direct payment is agreed. If someone else is going to manage the direct payment, the local authority needs to check that said person is willing to do this. Which is common sense, right? I love it when legislation makes sense.

The local authority also needs to be satisfied that whoever is going to manage the direct payment is able to do so, with or without any support that is available. Now this can be a contentious one, because there are arguably a few different standards that could be applied here. What my local authority tends to do is fairly minimal, and if the person can demonstrate a basic understanding of what care is needed and how to sort this, they will be considered to pass this test. If they don’t, then we’ll probably signpost to our provider of support to manage direct payments, then mark the requirement as met.

But here is where I have a bit of an issue. Because managing a direct payment is quite complicated. It requires a lot of work to prepare support plans, and although social workers can assist, the day to day stuff should fall to the direct payment manager.

Then there is the issue of actually arranging the support. At the least, this will require the ability to understand and enter into a contract with a provider or agency and to abide by the terms of that contract. But it might involve becoming an employer and requiring the direct payment manager to arrange tax and national insurance contributions, sick and holiday pay, redundancy processes etc. I am not sure I have the ability to do that (in a former life I worked in accounts, but its a skill that time has taken from me). So I do wonder how many service users and family members are actually capable of doing this properly. Some do it brilliantly. A lot come back to the local authority for so much support and guidance that the package may as well be care managed. And that doesn’t help anyone.

The next requirement refers to the regulations that set out certain groups of people who cannot receive direct payments. But these are fairly limited, so I’m going to skip over these, so you don’t get too bored.

So the final condition that must be satisfied is that the direct payment must be an appropriate way to meet needs. There is a difference between being an appropriate way and the most appropriate way to meet needs. It does not need to be the best way, just a suitable option.

But even so, this requires detailed consideration. Because this does depend how the direct payment manager intends to use it. They might want to arrange care that isn’t what the local authority would deem appropriate. They might want to over or under provision, or use it to employ a personal assistant who isn’t appropriate, or spend money intended for community access on a cleaner etc. When a request is made for a direct payment, discussion about how it will be used needs to take place before it is agreed. And this is important because how it will be used might require the direct payment to be recalculated to take account of sick pay, contingency arrangements etc.

Only if these criteria are satisfied is the local authority required to make a direct payment.

There are additional requirements if the request is made on behalf of someone who lacks capacity to make the decision. The most important of these being that the local authority must be satisfied that the person will act in the best interests of the service user.

In either case, the local authority is able to take into account previous actions such as failure to pay bills for care and support, denying access to professionals and other unco-operative behaviour. And careful consideration needs to be given to each individual case.

Because here is the key message: Local authorities retain the duty to make sure needs are being met appropriately. So there is no point giving a direct payment to someone we know won’t work with us, and won’t provide the information we need them to, because if needs aren’t being met, we’ll have to arrange alternative provision.

And family members need to understand the complexity of these arrangements, and the need to engage in monitoring and review of direct payments, being very clear on what support is provided and how this meets need.

Because provision of a direct payment doesn’t exempt the local authority from having to ensure human rights and Mental Capacity Act provisions are complied with. That means if the manager of a direct payment is putting in unnecessary restrictions on the individual’s freedom the local authority has to intervene.

And that’s where someone like me has to get involved. And we start requiring reviews, advising that direct payments are suspended, or even cancelled. In extreme cases, we might even advise that an application needs to be made to the Court of Protection, to settle a dispute about the individual’s best interests.

Ultimately, done correctly, direct payments are a way to ensure service user’s can be in control of their own support and choose how and when their needs are met. If the provision is appropriate, then the local authority can swap the time taken case managing, to time taken monitoring. These use different skills, can be done by different professionals and, theoretically, could reduce the time local authority officers spend on a case.

Done incorrectly, direct payments are a black hole swallowing public funds as well as officer time and resources untangling inappropriate arrangements that have been ignored for years in the hope they might go away. In many cases, they are a judicial review time bomb.

Do you understand why I dislike them now?

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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