December 2017: This chapter was been significantly amended as a result of local review and should be re-read.
- 1. Introduction
- 2. Spending
- 3. Capacity Assessments
- 4. Capacitated Adults
- 5. Agents
- 6. Responsibilities
- 7. Applying for Corporate Appointeeship
- 8. Requesting, Collection or Handling of Money
- 9. General Information regarding Benefits and Capital Limits
- 10. Appeals against Appointeeship
Under section 33 of the Social Security (Claims and Payments) Regulations 1987, a third party can be appointed to act on behalf of another where that person is ‘unable to act’ on their own behalf, is believed to be entitled to benefits and does not have either someone who holds a Lasting Power of Attorney (property and financial affairs) on their behalf or a deputy appointed by the Court of Protection.
Wherever possible, people should manage their own affairs, with support if necessary. For capacity or the lack of it to be established, a formal assessment must be carried out by a suitably qualified person following the principles set out in the Mental Capacity Act 2005 (MCA). This will usually be the social worker or medical practitioner working most closely with the person. If it is established that the person does lack capacity, enquiries must be made about whether a relevant Power of Attorney is in force. If one is not, then an appointee or deputy must be appointed. Wherever possible, this should be a suitable family member and Hull City Council should only become involved when all options regarding relatives have been considered.
Appointees (including corporate appointees such as the local authority) can only deal with the income from benefits and a small amount of savings that might accrue from unspent benefits and cannot deal with capital or any other source of income. Where the individual does have capital, accrues capital from benefits or has other income such as private pensions, then consideration should be given to whether an application to the court for deputyship is necessary.
The regulations pre-date the MCA but can be applied where an individual claimant lacks the mental or physical capacity to manage their own financial affairs in respect of benefits and entitlements.
The duties and responsibilities of an appointee are essentially those of any benefit claimant:
- finding out about benefit entitlements;
- making appropriate claims;
- advising Department of Work and Pensions (DWP) of change of circumstances;
- arranging payback of overpayments.
Corporate appointeeship should be pursued only as a last resort, when it has been established that no family members or friends are able and willing to safely assume this role. Where individuals are considering taking on or retaining the appointee role, then Hull Advice can provide support, including advice on benefit entitlement and help with claims. They can visit the Wilson Centre and ask to see a Hull Advice adviser, or they can ring 300303 and make an appointment to see an adviser.
Appointeeship cannot be sought as means of managing/controlling the lives of those who have capacity in relation to benefit entitlements and responsibilities, but who make unwise decisions in spending or budgeting.
Benefits regulations do not detail how benefits should be administered on behalf of the person. It is, however, generally understood that the appointee should manage those monies to meet the individual’s day to day needs. This might include paying bills (including charges for care) and making necessary provision for routine shopping, household purchases, repairs and maintenance etc. The appointee has the authority to provide this level of intervention/ assistance as required.
Once day to day needs are met, the appointee should support the person to save or spend the rest of their money as they wish. If the person cannot express their wishes, this should be done in the person’s best interest, taking into account their past and present wishes and feelings. Any spending should be in keeping with their daily routine and way of life and be proportionate to their means.
3. Capacity Assessments
Capacity assessments should deal specifically with the person’s capacity to discharge their duties and responsibilities as a benefit claimant.
A formal assessment of the person’s capacity to claim and manage their benefits should be carried out by a suitably qualified person following the principles set out in the MCA and must be carefully recorded.
4. Capacitated Adults
If the person does have capacity but is being coerced through pressure, fear, or intimidation into making financial decisions they would not otherwise have made or into taking action which they might otherwise not have taken it is possible for the local authority to assume the role of appointee with the person’s express, informed consent in order to safeguard them from further exploitation or abuse.
In cases where all of the above applies but the adult does not consent to appointeeship, the social care worker should discuss concerns with their team manager who may, as necessary, seek the advice of the Safeguarding Team as to whether other legal avenues are available or appropriate in these particular circumstances.
An agent is not appointed to act on behalf of the claimant (and so is not an appointee) but rather can be nominated by someone who does have capacity to collect their benefits. Local authority staff cannot act as agents as this would lie outside of the required audit framework. In exceptional circumstances, where a capacitated adult has no other safe source of this support and where other options have been explored and exhausted, then they can ask that we take on the role as appointee in order to provide this specific service.
In delegating the duties of the appointee within the local authority, tasks and responsibilities are shared between Adult Social Care, the Welfare Rights Team and the Transactional Finance Team.
A named social care worker will have responsibility for:
- advising the Department for Work and Pensions and the Welfare Rights Team in a timely manner of relevant changes of circumstances which may affect the person’s claim or entitlement, such as; changes of name or address, marriage or death, admissions and discharges to hospital or residential care;
- completion of DLA and PIP forms in respect of benefit claims;
- updating electronic records;
- contributing to reviews which will consider whether the person still lacks capacity to manage their finances, whether the appointeeship is still required and appropriate, whether the appointeeship can transfer to a friend or relative and clarification as to whether savings or other assets have reached the limit at which entitlement to benefits is affected, charges for care and support are affected or at which Public Authority Deputyship is required;
- updating/maintaining records in relation to next of kin. These details are required on the SDWR5 form (Welfare Rights Service Corporate Appointee Request) and must be kept up to date in order that, in the event of the death of the person, the local authority can return any funds it holds to the person’s estate;
- drawing up a budget document with the person which details routine incoming and outgoing funds in relation to day to day costs and expenses and available disposable income.
The Welfare Rights team has its own internal procedure but broadly has responsibility for:
- making the formal application to the DWP for appointeeship;
- completing a full benefit check on behalf of the person, identifying all relevant entitlements and conducting periodic reviews of entitlements;
- providing ongoing advice on entitlement;
- liaising with the Transactional Finance Team and making arrangements for receipt of client benefits into a corporate account;
- completion of any factual forms relating to information held by the team.
The Transactional Finance Team has responsibility for:
- setting up a unique cost centre code within Oracle General Ledger, for the client, so that financial transactions can be tracked;
- payment of expenses out of a person’s account via cash, cheque or BACS payment;
- monthly reconciliation of incomings and outgoings of a person’s account utilising electronic or other records to check any queries;
- upon the person’s death, ensuring balances are released to the executor of their will or to the next of kin. If there is no next of kin, the procedure for the disposal of property of deceased persons must be followed. This details the point at which Bona Vacantia will take an interest in the person’s estate and the steps to be followed whether Bona Vacantia will be involved or not;
- ensuring clients’ balances are carried forward at the financial year-end closedown;
- upon the relinquishing of an appointeeship ensuring balances are paid to the appropriate individual / representative.
7. Applying for Corporate Appointeeship
When a worker identifies that someone may need support to manage their finances, a formal assessment must take place to ascertain whether someone has the mental capacity to manage their finances and identify what support they need to do so. If the assessment shows that the person does not have the capacity to manage even when all reasonable support has been made available, then consideration of appointeeship or Public Authority Deputyship must take place. If the person’s only source of income is state benefits and they do not have capital or other assets worth more than £5,000 then appointeeship is sufficient. If they have other income or substantial assets, then an application must be made to the Court of Protection for Public Authority Deputyship.
If appointeeship is sufficient to manage the person’s finances, a family member or close friend should be identified wherever possible, who is suitable, willing and able to become the person’s appointee. If there is no one who is willing and able, or if the only people willing and able are not suitable, then a Best Interest Decision Making meeting should be convened to make the decision in the person’s best interest about whether corporate appointeeship should be sought. A person is not suitable to become an appointee if they:
- are not likely to act in the person’s best interest at all times;
- are, or have recently been declared bankrupt;
- lack capacity themselves;
- are subject to drug treatment orders;
- are subject to orders under the Mental Health Act.
The final decision regarding suitability rests with the DWP but people meeting the criteria outlined above are unlikely to be regarded as suitable and should not be encouraged to apply for the role.
Someone may lack the capacity to manage their finances but retain the capacity to choose who to ask to be their appointeeship, or to consent to appointeeship being sought. If this is the case, a Vulnerable Adult Requesting Corporate Appointee form should be completed to include the reasons for the appointeeship, the detail of how the individual wishes the local authority to manage their finances and a record of the individual’s consent to this arrangement.
The capacity assessment and best interests paperwork or the Vulnerable Adult Requesting Corporate Appointee form must then be submitted to the city manager for Adult Social Care with a completed Welfare Rights Service Corporate Appointee Request Form (SDWR5) for approval. This form is available from the Welfare Rights Team on 487880.
The approved copy of the paperwork will be returned to the social care worker who will place a scanned copy on the person’s electronic record and submit the pack to the Welfare Rights Team.
WRT complete the DWP appointee application form (BF57) and submit this to DWP.
In all case where the local authority takes on the role of appointee, the person concerned must have a named social care worker. The case must remain open until either the person dies or the appointeeship is no longer required and steps have been taken to relinquish it.
8. Requesting, Collection or Handling of Money
Everyone who has delegated responsibilities in relation to corporate appointeeships must evidence compliance with the written protocols and procedures in place regarding the collection, storage, handling and spending of service users’ monies. There must be a clear and evidenced audit trail of the flow of money from the initial request to the Cash and Banking Section to the handover of money to the person or the spend on their behalf. In particular, it must be shown that there is:
- a regularly monitored and up to date list of people who have a corporate appointee or deputy and their named responsible worker;
- segregation of duties in handling monies – the officer requesting funds from the Cash and Banking Section (using the Appointee Cash Request form) must be different from the officer collecting funds;
- a minimum of three quotes obtained for the purchase of items over £250 to evidence that the best price has been obtained;
- a receipt obtained on the collection of monies which is stored in the person’s file;
- all money stored in safes on the premises which are clearly labelled and ‘booked’ in and out with two signatures;
- all transactions signed by two officers with legible signatures, designation and dates;
- monthly reconciliations of incoming and outgoing money. Any spending of money should be evidenced by receipts and signatures and the remaining balance should reflect the expenditure.
- where the customer lives in a permanent residential care setting all assets purchased on their behalf must be recorded and included as part of their estate;
- an escalation process in place so that any queries or disputes which cannot be resolved between workers or any issues of noncompliance with this guidance can be escalated to line managers in the first instance and then to relevant City Managers or the operational group if necessary.
9. General Information regarding Benefits and Capital Limits
The capital limits to be aware of which may affect means tested benefit entitlement are £6,000, £10,000 and £16,000. Non means tested benefits such as Attendance Allowance, DLA and PIP are not affected by capital levels.
With means tested benefits for people under pension credit age, less is paid once capital exceeds £6,000 (this does not apply in relation to tax credits as here capital is disregarded).
Over pension credit age, less benefit is paid when capital exceeds £10,000 and when the upper limit of £16,000 is reached then entitlement to most means tested benefits will reduce to zero.
£16,000 is the upper capital limit for housing benefit and help with rent, for all ages, regardless of capital levels.
The capital limit for appointeeship is £5,000. Once someone has this level of capital, an application to the Court of Protection for Public Authority Deputyship must be made.
10. Appeals against Appointeeship
There are four circumstances where an appointeeship can be revoked:
- if the appointee does not act appropriately within the terms under which the appointment was granted, the DWP can revoke their authority;
- if there is sufficient evidence that the customer is capable of acting for themselves and does not need an appointee to act for them;
- where the appointee himself becomes incapable. The Secretary of State should take normal action to appoint a replacement;
- where the appointee no longer wishes to continue.
10.1 Appointee is not acting appropriately
If the evidence of mismanagement is overwhelming and unequivocal, then the DWP will suspend payment of benefit immediately whilst the case is further investigated. In cases where the evidence is not clear, benefits may continue to be paid pending the outcome of the investigation. If the investigation finds that the appointee has not acted appropriately, the appointeeship will be revoked and further action, including referral to the Office of the Public Guardian or the police will be considered.
10.2 There is sufficient evidence that the person is capable of acting for him / herself
The person subject to appointeeship can appeal to the DWP for the appointeeship to be revoked and to assume control over their own benefits. The request should be made by telephone initially, via the relevant helpline to the DWP, who will arrange for an assessor to visit the person. The assessor will also approach the appointee for their views, and will make the decision whether or not to revoke the appointeeship. Where the City Council wishes to contest the revocation, written evidence supporting this view should be forwarded to the DWP and if necessary, a case conference should be held with all parties represented including the DWP. The final decision is for the DWP to make.
10.3 Incapacity of corporate appointee, or wish to discontinue
Neither of these scenarios should apply to a local authority appointeeship, as responsibility can be delegated to a range of suitable officers.
10.4 Process of appealing
The person wishing to appeal must contact the DWP, initially by telephone on one of the numbers given below. The DWP will then take the steps outlined above.
Personal Independence Payments helpline 0800 9172222
Disability related benefits helpline:
- (born before 8.4.48) 0345 6056055
- (born after 8.4.48) 0345 7123456
State pension helpline 0345 6060265
Tax credits helpline 0345 3003900
All other benefits Via Jobcentre Plus