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2.6 Direct Payments

FURTHER INFORMATION

Department of Health website.

For more information on Direct Payments, please see the updated guidance for councils, Guidance on direct payments for community care, services for carers and children’s services. The user guide, A guide to receiving direct payments from your local council, has also been updated.

The guidance for councils, the user guide and the new regulations can be found on the Department of Health (DH) website at: Department of Health website.

RELEVANT DOCUMENTS

Direct Payments Support Planning Potential Expenses

Direct Payment Users Back-up Plan Administration Process

Back-Up Plan for Direct Payments Users Form

AMENDMENT

This chapter was updated in February 2017 to include links as above.


Contents

  1. Introduction
  2. Local Principles
  3. What is a Direct Payment?
  4. Who can receive a Direct Payment?
  5. Who cannot receive a Direct Payment?
  6. Employing a Personal Assistant or Family Member
  7. Finding out more


1. Introduction

The amount of money that it would cost to meet a person’s eligible care needs is called a Personal Budget. Everyone who has been assessed as eligible to receive support from adult social care will be given information on the amount of their Personal Budget.

There are a number of ways that the Personal Budget can be managed – one of these is a Direct Payment.


2. Local Principles

Principles:

  1. Right to independent living
    If someone has an identified eligible need, they should be able to get the support they need to live an independent life;
  2. Right to a personal budget
    If someone needs ongoing support they should be able to decide how the money that pays for that support is used to meet the agreed outcomes;
  3. Right to self-determination
    If someone needs help to make decisions then decision-making should involve that person as much as possible and reflect that person’s own interests and preferences;
  4. Right to accessibility
    People must be able to understand the systems and rules to maximize the ability of the person to control their own support;
  5. Right to flexible funding
    When someone is using their personal budget they should be free to spend their money in a way that best makes sense to them, without unnecessary restrictions. However as it is public money it must be used to meet assessed need and be transparent to this end;
  6. Accountability principle
    The person with support needs and the local authority both have a responsibility to each other to explain their decisions in a way that is fair and open;
  7. Capacity principle
    People with support needs, their families and their communities must not be assumed to be incapable of managing their support, learning new skills or making a contribution.


3. What is a Direct Payment?

Direct payments are payments made directly or indirectly to service users. They are intended to give greater choice in care, enabling people to live independently in their own homes, providing greater flexibility on how their service is provided and by whom.

Giving people choice and control over their own care

By giving individuals money in lieu of social care services, people have greater control over how the money is spent and decisions about how their care is delivered and means that they are able to employ their own carers and organise their own service, or organise for others to do this on their behalf.

The duty to provide direct payments

The law has been changed so that it is a duty to provide direct payments. This means that councils must make a direct payment to eligible individuals. Direct payments should be discussed as a first option at each assessment and each review.

The payment must be sufficient to enable the service user to purchase services to meet their eligible needs, must be spent on services that meet those eligible needs.

Personal Budgets delivered through a Direct Payment are subject to assessed financial contributions in the same way as any community care service.


4. Who Can Receive a Direct Payment?

  • Older people who have been assessed as needing community care services;
  • People with a disability aged 16 and over, including those with short as well as long term needs;
  • People with mental health needs;
  • People with learning difficulties;
  • Carers, in place of receiving carers' services.

Direct payments for adults lacking capacity to consent

All councils must offer Direct Payments to certain eligible adults who lack the Capacity to consent to receive them.

These people may include some adults with head injuries and some people with dementia. In addition, severely disabled children moving into adulthood.

For people who lack the Capacity to manage their own money and care support, Direct Payments can be made to a willing and appropriate ‘suitable person’, such as a family member or friend, who receives and manages the payments on behalf of the person who lacks capacity.

The guidance (Guidance on direct payments for community care, services for carers and children's services: England 2009) describes the process to be followed for appointing a suitable person, the conditions to be met by the suitable person, and includes advice on disputes, when advocacy may be appropriate, approaches to risk, and safeguarding. (See paragraphs 184 to 206 of the guidance for details).


5. Who Cannot Receive a Direct Payment?

People who are subject to drugs and alcohol-related provisions of some criminal justice legislation remain excluded from receiving Direct Payments. The legislation in question is listed in Schedule 1 of the new regulations. (See also Annex C of the guidance).

There are only a very limited number of people who could not get Direct Payments.

  • Patients detained under mental health legislation who are on leave of absence from hospital (this does not include Customers on Section 117 aftercare who would be eligible for Direct Payments, unless they are on Section 17 leave);
  • Conditionally discharged detained patients subject to Home Office restrictions, patients subject to guardianship under mental health legislation, and those covered by the new power of supervised discharge, introduced by the Mental Health (Patients in the Community) Act 1995;
  • People who are receiving any form of aftercare or community care that constitutes part of a care programme initiated under a compulsory court order;
  • Offenders serving a probation or combination order subject to an additional requirement to undergo treatment for a mental health condition or for drug or alcohol dependency;
  • Offenders released on license subject to an additional requirement to undergo treatment for a mental health condition or for drug or alcohol dependency;
  • People subject to equivalent Scottish mental health or criminal justice legislation.

If the Customer Chooses a Direct Payment

It is important that the person, third party or suitable person understands their responsibilities and the support available to them as a Direct Payment holder or employer.

  • Customers must hold the Direct Payment in a separate bank account;
  • Customers should understand the audit process and keep paperwork and bank statements;
  • Service users can access independent advice from the Fed – Centre for Independent Living.

The customer must be given written information to read before signing the agreement for a Direct Payment and this should be recorded on the care record.


6. Employing a Personal Assistant or Family Member

Direct Payment. There are other ways to manage the money, these include:

  • Purchasing support directly from a care agency who invoice the person directly for their services;
  • Use the payment pay for attendance at a social group which provides support to meet eligible needs;
  • Employ a Personal Assistant.

Further advice and support is available from Fed – Centre for Independent Living.

Employing Family Members

Direct Payments cannot be generally used to employ close family members, spouses, civil partners or unmarried partners who live in the same house. The council has discretion to allow the person to employ a close relative in exceptional circumstances.

Examples of exceptional circumstances where a family member may need to be employed may include those where;

  • The person refuses to be supported by anyone else with care that is essential to their health and wellbeing and if anyone else were to assist them this would result in a deterioration to their physical/emotional well being;
  • The person has specific support needs that cannot be met by another individual or organisation;
  • There are unpredictable/frequent care needs that are impossible to meet by employing staff or other agencies.

A decision to pay a family member should be taken with the team manager/service manager in discussion with the social worker and senior practitioner.

The decision to make the payment or not should be put in writing to the customer with the reasons. This should include details on how to appeal.

Considerations if a decision is taken to employ a family member

The person and their family should be made aware that if a family member does become an employee this might affect their benefit entitlement.

Contracts of employment should be completed as per the Personal Assistant process (see below).

So that there is no conflict of interest, the named employer cannot also be the paid employee.

There may be a need for a third party to hold and manage the personal budget on behalf of the individual.

Employment status of Personal Assistants (PAs)

In most cases where a person employs a PA they will employ that person directly. In some cases the PA may be self-employed. It is important that this is checked and confirmed as being legitimate from the point of view of HMRC.

If HMRC does not deem the person to be legally self-employed there are financial implications for the person employing them relating to liability for tax and national insurance contributions.

Employing PAs – Travel Costs and Expenses

When a person employs a PA they may use their Personal Budget to pay for travel and other expenses where these are incurred to meet the person’s care needs. This does not include the PA’s travel to and from work.


7. Finding out more

Support with Direct Payments can be provided by the Fed – Centre for Independent Living who can provide advice and support with:

  • Recruitment of PAs;
  • Employers responsibilities;
  • Drafting contracts of employment;
  • Payroll management;
  • Keeping accurate records;
  • General advice re managing direct payments.

For more information on Direct Payments, please see the updated guidance for councils, Guidance on direct payments for community care, services for carers and children’s services. The user guide, A guide to receiving direct payments from your local council, has also been updated.

The guidance for councils, the user guide and the new regulations can be found on the Department of Health (DH) website at: Department of Health website.

The guidance (ref 296235) and user guide (ref 296787) are available in hard copy from the DH order line by visiting: Department of health orderline.

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