I have already set out some basics on direct payments under the Care Act 2014 here: http://musingsoflocalauthorityasclawyer.com/2020/05/02/the-thorny-issue-of-direct-payments-part-1-pre-covid-19/I
But the world is changing, at least temporarily, due to COVID-19 so I thought a separate post about direct payments specifically during the pandemic would be helpful. (If it isn’t, don’t feel the need to tell me, but feel free not to keep reading.)
You may or may not be aware of the direct payments guidance that was issued last week. It seems to have quietly been released without the flurry of blog posts and email blasts that accompanied a lot of the other COVID-19 guidance. But maybe we are all getting a bit of ‘guidance fatigue’. I know I am getting a bit tired of getting excited that guidance will answer my questions, only to be disappointed. But that’s my own fault. As I have mentioned before, I expect too much from others, apparently.
The first thing that jumped out to me was that it is aimed more at direct payment recipients, than at local authorities. As such, it covers some of the queries I have had raised to me, but not all.
So the headlines, as far as I can see are:
Carers and personal assistants should be following guidance on PPE, especially if the person they care for is in a high risk group or showing possible COVID-19 symptoms – good to know. I could spend all day talking about all of the issues my local authority has had with PPE, but frankly I am starting to bore myself on that topic.
If people are having difficulty sourcing PPE, they should contact their local authority for assistance –
local authorities can’t get PPE either I’m not going there, really, I’m not.
Consider contingency plans – how much help that will be if the workforce and demand issues in an area get as bad as we all fear. But good advice, nonetheless
Make sure your support plans are clear and up to date, so they can be used my new staff on short notice – because everyone who receives a direct payment has a fully written and detailed support plan, right?
If you are in a crisis, contact the local authority because they will have systems in place to assist – I’m not even going to insert a snide comment here. This one speaks for itself.
Local authorities should consider requests to use direct payments to pay family members if deemed necessary – this actually just restates the phrasing of the Care Act. But the implication is that local authorities (and CCGs) should consider being more flexible than they might be at other times. Now I have heard every argument about paying family members: I know it sits uncomfortably to give people public money to look after their own family members. I know that argument is perhaps even stronger at a time like this, when services are stretched and we are all supposed to be mucking in and helping each other out. I have heard all about the changes in familial relationships when an employer-employee relationship gets introduced. Conflicts of interest, risks of isolation and over-reliance, I’ve heard it. I understand. I’ve also heard the ‘they’re my family and I know best’ line more times than I can count. Often that’s a well-founded argument, occasionally it’s the call of the over-bearing family member unable or unwilling to understand the need to promote independence and not restricts rights and freedoms more than necessary. The point is, I know paying family members through a direct payment is a difficult issue. But the reality is, if there aren’t other options at the moment due to the pressures in the system, then it might be something that local authorities have to agree, even just in the short-term. But it is absolutely open to local authorities to review the arrangements when the pandemic is over or the situation changes. So keep your ‘floodgates’ arguments to yourselves. (But please, local authorities, if you are intending arrangements to be temporary then make this clear to the service user and their family from the outset and keep a record of what was said. You’ll save yourselves a lot of work that way, not to mention saving yourself from your in-house lawyer’s record-keeping lecture.)
Carers and personal assistants who are ill or advised to self-isolate or shield are likely to be entitled to statutory sick pay, at least during the pandemic – this isn’t an employment law blog, and I’m
too lazy trying to keep this brief and won’t go into that further.
Local authorities should generally be getting out in front of this, offering information and advice, thinking strategically and doing everything they can to prevent a crisis locally – nope, no comment from me on that one guys!
Local authorities should be streamlining their processes and reducing administrative tasks as much as possible – it is absolutely possible for a local authority to change its systems quickly to respond to this crisis. I didn’t type that sarcastically, you just read it in a sarcastic voice. That one’s on you.
Local authorities should be more flexible in how they let people use direct payments. Changes from the agreed support plans should be avoided, should be discussed with the local authority and systems should be in place to enable changes to take place in urgent situations – no easy answers there I’m afraid, each local authority is going to have to decide their own policies on changes to direct payments during the pandemic.
Everybody should be keeping records of what changes to arrangements are made, and why – that includes social care staff, service users and people managing direct payments on their behalf. The devil’s in the details for everyone if they don’t want to be hit in the pocket.
There is a recognition that in extreme circumstances, direct payments might need to be stopped – this is getting at the Care Act easements under the Coronavirus Act. You see if local authorities trigger the easements, they’ll no longer have a duty to meet all assessed eligible needs. I’ve discussed a bit about what that means in a previous post: https://musingsoflocalauthorityasclawyer.wordpress.com/2020/04/08/lets-be-clear-on-the-human-rights-threshold/ In that scenario, people who aren’t high priority, and whose human rights won’t be breached if payment is stopped might find their direct payment withdrawn. I have a suspicion that people whose family are supporting them might be amongst the first to be hit by this…
PAs shouldn’t be furloughed – this makes absolute sense. If the direct payment is still being paid, then the employees aren’t at risk of redundancy. And social care staff are very much in demand at the moment so there is no sense in trained staff sitting at home when there are pressures across the system. In rare occasions, redeployment might be appropriate, but most of the time, carers and personal assistants should be continuing in their role, using appropriate safety measures.
No one needs a letter saying they are a key worker and needed to travel to work – this is #fakenews. Anyone can travel to work if they can’t work from home. The police are not stopping and checking the credentials of everyone who is out and about. There is a template letter though, attached to the guidance for anyone who feels the need to do this anyway.
Monitoring of usage will continue and records still need to be kept – absolutely, they do. There is going to be a lot of auditing and account balancing at the end of this so yeah, keep your records because local authorities will be checking them (you will, local authorities, you’ll have every accountant and lawyer in the building hounding you until you do!)
Now writing this, I feel like that was pretty comprehensive guidance.
The problem is, this assumes that we live in a world where guidance is followed, and people managing direct payments understand their duties as employers and will appreciate that they will need to make reasonable changes. But I’ve already had queries about cases where the direct payment manager has decided to send all of the PAs home, even though neither they nor the service user have been advised to self-isolate and care can still be delivered safely. They want to pay these PAs in full, but also pay someone’s sister to actually deliver the care needed because shes been furloughed and is at a loose end. Never mind whether alternative employment is permitted by her furlough arrangements.
Fear and lack of understanding is a real issue in those cases.
An awful lot is expected from local authorities too, but for the sake of ensuring my mortgage keeps getting paid, I’m not going to go into all of the things that could go wrong there…
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