Direct payments are “the Government’s preferred mechanism for personalised care and support… They provide independence, choice and control by enabling people to commission their own care and support in order to meet their eligible needs”.
(Guidance 12.2)
But in practice they cannot be the ‘default’ mechanism because a capacitated request is needed before a council can be relieved of its statutory duty to meet needs. And also because “people must not be forced to take a direct payment against their will, but instead be informed of the choices available to them.” [Guidance 12.5].
How to get the benefits of direct payments
There are two ways to benefit from the statutory concept of a personal budget: the council spending the budget to commission services, or the client or someone else receiving the budget as a direct payment to spend, directly; but there are three main ways to benefit from the direct payment form of a personal budget:
Management options turn on:
- a) whether one has capacity to request one, and wants to do the administration in person, engaging providers and buying services or employing/engaging individuals;
- b) if one would prefer not to manage in person, whether one has a willing and appropriate nominee to help the service user to manage the payment;
- c) whether, if one lacks capacity even to request, there’s a willing and appropriate person to be appointed by the council as an Authorised Person to take the payment in his or her own name, in lieu of the service user.
Other variations, called Individual Service Funds (IFS) by the sector, involve the selection of a service provider to receive some of the budget as fees for care, but then operating also as the DP holder’s agent for a separate payment for further administrative work, such as service commissioning on the client’s behalf; but in reality this is just the DP holder buying two different services from a company or a person.
It may also be called an ISF where the provider is the main contractor, taking the whole budget as fees it can call its own from the very start, but then sub-contracting out some of the services covered by the budget, through discussion with the client or a circle of support, usually family members.
ISFs can also be set up without the person having a direct payment at all, but instead participating along with their relatives and circle, if necessary, in the selection and scoping out of the relevant roles for all concerned parties, by the council. This is simply a participative form of a commissioned personal budget.
A council can refuse a direct payment if they do not wish to provide one, as long as they have legally defensible reasons. But they have to share these to enable a person to address them, if they choose.
The local authority must make direct payments if the conditions set out in the Act and Regulations are met – but since two of the conditions allow for much difference of professional judgement, on the same facts, one would never safely call it ‘a right’.
Apart from the basic question of capacity to request one, and the question of whether the person is a formally prohibited person, there are two obvious aspects of residual control over the ‘right’ to a direct payment. Both are woolly: one is capability to ‘manage’, with whatever help is available, and the second is the question of the appropriateness of paying the money to the user or to their nominee, as a means of meeting the needs.
So it is sensible to accept that the authority has to be generally satisfied with one’s nominee, at the very least, before a person can say they have a right to a direct payment.
What sort of conditions could be lawfully imposed on direct payments about having help, and the helpers?
It is clearly lawfully possible for a council to insist that a person has help, before it will let them have a direct payment; a council has to be satisfied that the person can manage the payment, and if it is not, it can just refuse a direct payment. So making it a condition that someone has help to manage, if there’s some coherent evidence that they may struggle, could not feasibly be controversial.
The council is also able to decline, on the basis that they don’t think that a person’s own preferred nominated helper is up to it, or that giving it to that particular nominated person is not ‘appropriate’.
And councils are not legally obliged to pay for direct payment clients to have any help, let alone any outside help or admin support, even if they think that the person needs it, in order to make managing a DP feasible, and thus encourage take-up.
All the guidance says is: “Local authorities should therefore take all reasonable steps to provide this support to whoever may require it.” In legal terms, if a council doesn’t have to fund this sort of help, applying conditions to offering it is very likely to be lawful.
The council’s paying for direct payment support or brokerage, or grant funding this sort of help, through the council, will clearly mean that the person is encouraged to seek help willingly, and that gives the council certain leverage, because it can then say that it isn’t ‘necessary’ to fund anything else.
Conditions limiting choice of a direct payment support service
Councils tend to accept that it is unlikely to be lawful to demand that the money is spent only on the council’s preferred providers. That would risk challenge as a condition negating choice – the whole point of the direct payment scheme. Saying ‘You must not use any provider who is not approved’ would be unlawful.
Instead, in support of potential safeguarding concerns, there’s a condition that provides for exclusion of named providers but no condition allowing a council to proscribe a provider.
But it may be lawful to insist that a person doing the admin/payroll to help someone manage a direct payment be on an approved list.
There is an extra discretion to permit a person where necessary to pay a close relative to administer the fund. Any such person will already have been nominated by the service user or other holder of the payment, and will have been approved, albeit in a different sense, under the general condition that the council has to be satisfied that payment to a nominee is appropriate.
The 2016 Nottinghamshire case has made it clear that removing accreditation from a popular provider, thereby necessitating a transfer to another, given this council’s policy to require accreditation, is not essentially unlawful. The choice principle and the direction in the Care Act were insufficient to deter the judge from upholding the council’s decision, despite citation of para 10.48 of the Guidance exhorting councils to avoid lists of prescribed providers as not fitting “with the government’s vision of personalised care”.
It isn’t clear whether the judge’s decision was because of the particular circumstances (which were very extreme concerning the organisation’s abuse of the system), or whether the decision was not fundamentally about limiting choice of care and support providers – only the DP management services – whilst the Guidance was more widely directed at ‘real’ providers. Nobody was challenging the policy to require accreditation in the first place, so what the case stands for is unclear.
How can direct payments be operated consistently with safeguarding concerns?
Careful use by a council of a range of conditions provided for in the regulations is clearly prudent; this is all public money. People do mis-spend it, through poor support, ignorance, or worse.
The power to impose conditions is designed to help councils get information out of people about who might be employed or engaged, and to help prevent the use of undesirable agencies or individuals. Providers of financial support services can be stripped of the approval the council requires them to have before they will fund their use; or even specifically named so they cannot be authorised to be used.
Wherever the Authorised Person needs to be DBS’d, by law, the people employed by the Authorised Person also have to be checked.
Some councils insist on DBS checks on nominated helpers and Authorised Persons even where the DP regulations do not demand it, although it is certainly possible to be DBS’d through an umbrella body, where the role involves receiving DP monies, not just providing care or support for a client, under the list of scheduled roles requiring a DBS.
Insisting on a DBS where none is legally needed may be over-cautious, especially in relation to nominees of capacitated persons, and is possibly illegal in the matter of people’s privacy about their pasts; especially as it is specifically provided for, with regard to Authorised Persons who are corporate bodies, unincorporated associations, or people who are not in an intimate relationship with the service user, (or specified close relatives in the same household), nor a friend of the proposed worker.
Another older case makes it clear that it may not be lawfully possible to insist that a person has a particular kind of support to manage, such as a manager for running a payroll, if the purpose is not actually related to the person’s capacity to manage. There, the council’s concern was to ensure that the council could communicate with employees about the risks of taking their children to the household of the client who had a sex offender history; the client used human rights grounds successfully to challenge conditions that the payment go through a third party organisation, and a condition requiring disclosure of his convictions history to the personal assistants.
Belinda Schwehr, Care and Health Law
