3.4 Direct Payments

Audio & Quick Read Summary

1. Introduction to this Policy and Definition of a Direct Payment

When Hull City Council carries out an assessment of need, it identifies which needs will be met by the local authority and how much it would cost to meet those needs. It then carries out a financial assessment to work out whether the person has sufficient resources to fund their own care. If they do not, the financial assessment will identify the contribution they can afford to make and the amount of money the local authority must provide. The total amount is known as the personal budget.

If Hull City Council agrees to provide the personal budget in the form of a cash payment to enable the person to arrange their own support, this is called a direct payment. A direct payment is not a form of support in itself, but only the method of delivery of the personal budget.

2. Who can Ask for a Direct Payment?

Anyone can ask that their needs are met by the making of a direct payment, but the Care and Support (Direct Payments) Regulations 2014 (the regulations) prohibit a local authority from making a direct payment to some people. These are largely people who are subject to court order relating to drug and alcohol testing or treatment, but the full text of schedule 1, which sets out the prohibitions is given in Appendix 1. Hull City Council also reserves the right to refuse a direct payment to someone who has previously misused a similar payment and to withdraw the offer of a direct payment to someone who fails to comply with the requirements set out in the direct payments guide.

3. Considering the Request

3.1 Capacity to request

When a request for a direct payment has been made, the steps to follow are different depending on whether the person whose needs are to be met has or lacks the mental capacity to request a direct payment. The social worker must assess the person’s capacity to make the request. This is not the same as having the capacity to manage the payment.

Someone has capacity to request a direct payment if they have a general understanding of their options and the pros and cons of these options and if they are able to understand, retain, use and weigh up all relevant information to support their decision and can communicate that decision.

3.1.1 The person has the capacity to request a direct payment

Where the social worker is satisfied that the person has capacity to make a request for a direct payment, s/he must consider each of the 4 conditions in section 31 of the Care Act. These conditions need to be met in their entirety; a failure in one would mean Hull City Council would need to decline the request. The conditions are:

• the adult has capacity to make the request, and where there is a nominated person, that person agrees to receive the payments;
• the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the adult or nominated person (these are set out in Appendix 1);
• the local authority is satisfied that the adult or nominated person is capable of managing direct payments either by himself or herself, or with the help and support available;
• the local authority is satisfied that making direct payments to the adult or nominated person is an appropriate way to meet the needs in question.

3.1.2 The person lacks the capacity to make the decision

If the person lacks the mental capacity to request a direct payment, someone else can request the direct payment on the person’s behalf. In these cases, Hull City Council must satisfy itself that the person meets the five conditions as set out in section 32 of the Care Act. As with direct payments for people with capacity, each of these conditions must be met in their entirety. Failure to meet any of the conditions would mean Hull City Council would need to decline the request. The conditions are:

• where the person is not authorised under the Mental Capacity Act 2005 but there is at least one person who is so authorised, that person who is authorised supports the person’s request;
• the local authority is not prohibited by regulations under section 33 from meeting the adult’s needs by making direct payments to the authorised person, (these are set out in Appendix 1);
• the local authority is satisfied that the person nominated to manage the direct payment will act in the adult’s best interests when arranging for the provision of the care and support to meet the needs for which the direct payment is provided;
• the local authority is satisfied that the nominated person is capable of managing direct payment by himself or herself, or with the help and support which is available;
• the local authority is satisfied that making direct payments to the nominated person is an appropriate way to meet the needs in question.

3.2 Capability to manage the direct payment

When considering whether to make a direct payment, Hull City Council must be satisfied that the person receiving the payment is capable of managing it and, if they are to employ a personal assistant, that they are able to discharge the lawful duties of being an employer.  The Direct Payments Regulations and Guidance 2009 state that a suitable person is someone who;

• will act in the best interests of the DP recipient; and
• appears capable of managing the direct payment; and
• ‘the responsible authority (Hull City Council) considers that person to be suitable.’

When assessing whether someone is ‘a suitable person’ you should discuss this policy and the direct payments agreement with the person requesting a direct payment, or the person they have nominated to manage it on their behalf. You should also discuss the issues set out below with them to inform your assessment of their ability to manage a DP appropriately.

• What makes you believe they will or will not act in the DP user’s best interest?
• What will they do if their view on how best to meet the person’s needs conflicts with what the person wants?
• What is their view on the flexibilities and restrictions on how the money can be used?
• What is their view on audit and their need to show open and honest financial management?
• What is their view on securing value for money?
• What is their view on who can and cannot be employed as a PA and the need to secure DBS checks?
• What is their view about how to discharge their responsibilities as an employer?

Any concerns about the person’s ability or willingness to do so must be recorded. This will provide an opportunity for tailored support to be offered to the person to build their skills and ability but, if the local authority cannot be satisfied that the person receiving the direct payment is capable of managing it, the conditions set out in sections 31 and 32 of the Care Act are not met and the direct payment cannot be made. Please see Section 3.4 , If the request is refused.

3.3 Use of a direct payment appropriately and in the person’s best interest

Direct payments managed by someone else on behalf of a person with care and support needs must be used in their best interest. It is possible that the individual’s best interest may not be the same as the wishes and preferences of the person managing the direct payment, so to protect the best interest of the individual, any goods, services or support which the nominated person proposes to purchase must be agreed in writing with the person’s social worker, always seeking to strike a balance which gives flexibility and choice. Decisions must be made and recorded in accordance with the best interest decision making framework set out in the Mental Capacity Act 2005. Unless this takes place, the local authority cannot be satisfied that the conditions set out in section 32 of the Care Act are met and the direct payment cannot be made.

3.4 If the request is refused

If the social worker cannot be satisfied that a direct payment is an appropriate way to meet someone’s needs, or if they are not satisfied that the person managing the payment is suitable, they should recommend to the relevant Operational Manager that a direct payment should not be agreed and provide the evidence they have gathered during assessment to support their conclusion. There must be no delay or gap in meeting the person’s assessed needs and support should be provided in the interim via a managed budget.

The Operational Manager should discuss the case, the evidence and recommendation through the established decision making process which includes practice surgery, joint working forum and the quality and risk panel. At the end of this, if the decision is that the request for a direct payment is refused, the person or person making the request should be provided with written reasons that explain the decision, and be made aware of how to appeal the decision through the local complaints process.

4. Managing the Direct Payment

Anyone managing a direct payment whether on their own behalf or someone else’s must do so transparently. In order to do this they must either:

1. agree to use a pre-payment card account; or
2. open a separate bank account which is only used for the financial management of the person’s care and support.

Hull City Council will pay into the account their contribution to the cost of meeting the person’s care and support needs and the person must pay their contribution to the cost of meeting their care and support needs into the same account. The sum of these is the personal budget, provided as a direct payment which can then be used to purchase goods and services agreed.

All payments for the person’s care and support must be made from the account.

4.1 Audit

The account will be audited by Civica within six months of commencement and regularly thereafter. Depending on the complexity of the case, the experience of the direct payment holder and the presence or absence of any issues, this will be either six monthly or annually. All records must be made available to the Hull City Council direct payments and/ or finance team to enable this to happen. If any of the circumstances set out below apply, Civica will inform the social worker. The social worker will attempt to resolve the issue but if this is not possible consideration must be given to suspending or terminating the direct payment by following the process set out in Section 8, Termination. The circumstances in which termination or suspension must be considered are:

• if the direct payment holder fails to submit their financial paperwork when requested for audit purposes;
• the direct payment is not being spent in accordance with the care and support plan;
• a review of the adult’s care and support needs is required as there has been a change in circumstance and it appears the direct payment is no longer meeting the adult’s care and support needs;
• the adult has incurred a change in circumstance to their personal assistant employment arrangement without notifying Choices and Rights, Hull CVS and or the Council;
• the direct payment appears to be misused and there are unaccounted withdrawals from the direct payment account;
• the adult cannot demonstrate how the direct payment has met their care and support needs.

5. What can a Direct Payment be used for?

Direct payments were developed to give the people who use them maximum choice and control, but the Care Act does set some limits on this and empowers the local authority to set further conditions. A direct payment can only be used to pay for goods and services which meet needs and achieve outcomes agreed in the person’s care and support plan. These can be purchased directly from support providers or direct payments may be used to employ a personal assistant to;

• meet the care needs of the adult;
• provide administrative and management support to someone receiving a direct payment.

5.1 Value for money

The arrangements must also represent an efficient use of public funds. The same duty to safeguard the public purse by ensuring value for money applies equally to goods and services purchased by a direct payment or to those commissioned by Hull City Council. A direct payment cannot be used to buy support which costs more than the city council would usually expect to pay for that type of support. If the person receiving the direct payment or the person managing it on their behalf wants to use a provider which is more expensive, they have the choice to do so but must pay the excess cost themselves. This must be agreed as a top up by the person who will pay and Hull City Council and the excess must be paid into the direct payment account weekly.

5.2 Setting the level of direct payment: parity with a managed budget

The underpinning process of provision is one of assessment leading to support planning leading to the identification of a personal budget. Some personal budgets are provided as managed budgets while others are provided as direct payments. The funding provided via a direct payment must cover the direct cost of support but also related costs such as employers national insurance and pension contributions, SSP, maternity payments and redundancy payments so an amount should always be retained in the DP holder’s account to meet these costs. If costs such as these arise which are unforeseen, and there has been insufficient time for the DP holder to build up the necessary amount to meet them, additional funding should be requested vis the joint working forum. If goods or services are of a type which would normally be funded via a managed budget, the same should be agreed for a DP. If Hull City Council would not agree to fund a particular type of expenditure through a managed budget, it cannot agree to a DP being used for the purpose. Goods and services which do not directly meet eligible needs cannot be purchased with a direct payment. Failure to manage the direct payment appropriately may result in the termination of the direct payment and reclaiming of payments made (see Section 8, Termination).

5.3 Requirement not to employ a particular person

The regulations give the local authority the ability to require that someone’s needs are not met by a particular person. Hull City Council will not provide a direct payment to employ a PA if the PA in question cannot provide evidence that they have not been barred from working with vulnerable adults. A DBS check will be required to verify this. If the DBS check shows a history of criminal activity, a decision will be made by a Head of Service on a case by case basis whether the criminal activity is serious enough for the local authority to require that the direct payment is not used to employ them. In addition, the people listed below in section are prohibited by regulation from being employed as a PA.

6. Employing a Personal Assistant

Many people who receive a direct payment, or who manage one on behalf of someone who lacks the capacity to manage it themselves use some or all of it to employ one or more personal assistants. The regulations say that the following people cannot be employed via a direct payment:

• the spouse or civil partner of the person;
• someone who lives with the person as if their spouse or civil partner;
• someone living in the same household as the person who is the person’s
  • parent or parent-in-law,
  • son or daughter,
  • son-in-law or daughter-in-law,
  • stepson or stepdaughter,
  • brother or sister,
  • aunt or uncle, or
  • grandparent;
  • the spouse or civil partner of any of these people who also lives in the same household as the adult; or someone who lives with one of these people as if their spouse or civil partner.

The regulations do allow local authorities to agree to the employment of someone listed above but only where it is ‘necessary’. Necessary means that there is no alternative way of meeting the person’s needs. Thus, it is only in exceptional circumstances, where no reasonable alternative exists, that Hull City Council would be able to consider agreeing to the use of a direct payment to employ a relative living in the same household. Specific agreement must be obtained and regularly review to ensure the criterion of ‘necessary’ continues to be met.

If a personal assistant is employed, the person receiving the direct payment or the person managing it on their behalf must:

• comply with all relevant employment and health and safety law;
• take out indemnity insurance;
• operate a payroll service which is fully legally compliant or contract with one which is and issue regular payslips and documents such as a P60;
• register with HMRC and comply with requirements in respect of tax and national insurance;
• register their employee with a pension provider.

6.1 PA rates of pay

The hourly rate for PA support is set by Hull City Council annually and PAs should not be paid less than this amount. If the DP holder wishes to pay the PA more than the set rate, they must fund the difference from their own resources.

6.2 Advice for employers of PAs

Employment law is complex and best left to those with some training and expertise in the field. Any advice given by an employee of Hull City Council is likely to be regarded as official HCC advice and if it’s incorrect it could expose the City Council to risk. The Direct Payment user or the suitable person should be signposted to Choices and Rights, who have been commissioned to support people to employ personal assistants or to the ACAS website. Hull City Council staff should not recommend a particular PA as this breaches HCC equality policy and the prospective employer should not let the PA start work until they themselves have been set up as an employer, as this could breach tax, NI, pensions or health and safety regulations and expose the DP holder to the risk of fines or other action.

6.3 Disputes

If a DP user is unhappy with their PA or vice versa, they must be advised to seek guidance from Choices and Rights or ACAS, via their website as early as possible. Small disagreements can rapidly escalate to employment tribunal cases if the DP user does not follow the ACAS code of practice.  Timely advice will ensure any dispute is addressed fairly and legally.

6.4 Changes

PAs  are entitled to written notice of any changes to their working arrangements or to pay in lieu of notice and if the DP holder is in no position to give notice, for example because their capacity has changed or they have been admitted to hospital, the social worker must provide written notice of any change in working arrangements to the PA.

7. Maximum Periods of Accommodation in a Care Home which may be Secured by means of a Direct Payment

Only local authorities which are specified in Schedule 2 of the regulations may authorise the use of direct payments to pay for residential care for a period of more than 4 consecutive weeks in any 12 month period. Hull City Council is specified and is permitted to authorise such a placement but as admission to residential care is a major life change which can have significant repercussions for the person’s independence and well being, it would only make such an authorisation in truly exceptional circumstances.

8. Terminating a Direct Payment

See also: Terminating a Direct Payment: Flowchart

Direct payments should only be terminated where the person is acting in breach of this policy or the conditions set out in the Direct Payments Information Guide or where the conditions in sections 31 or 32 of the Act, set out in 3.1.1 and 3.1.2 above are no longer met. Unless there is a gross breach, such as a manifest failure to meet the person’s needs or the fraudulent misuse of the direct payment, all reasonable steps to address and resolve the issue should be made before the decision to terminate is made. The following steps should be taken.

• The social worker should discuss the issue with the DP holder and try to resolve it. If the social worker does not believe the care and support arrangements purchased with the DP are in the best interest of the individual, more detailed support planning should take place to seek agreement on how the situation may be remedied. If additional advice, information or support would help, the person should be provided with information and signposted to organisations such as Choices and Rights or ACAS.
• If no improvement takes place within a reasonable period, the perceived problem should be set out in writing to the DP holder together with information about how the DP holder can improve to the necessary level, the support available to them to do that and the consequences of failing to improve – i.e. that the DP may be terminated.
• If there is a gross breach, one which either puts the person at risk of serious harm, or where there is evidence to support a view that, on the balance of probabilities, deliberate misuse or fraud has occurred, the DP should be terminated or suspended with immediate effect. If terminating a direct payment, there must be no gap in the provision of care support.
• The final decision to terminate or suspend must be made by the quality and risk panel. If the social worker, or a Civica worker wishes to recommend termination, s/he must provide a written report and present it to the Quality and Risk panel detailing the reasons for the recommendation and any actions taken to resolve the issue. If the decision is taken to suspend or terminate the direct payment, alternative support to meet the person’s assessed needs must be commissioned. There must be no delay or gap in meeting the person’s assessed needs and support should be provided in the interim via a managed budget.
• If the decision is taken to terminate or suspend, the worker making the recommendation must write to the DP holder setting out the reasons for termination or suspension and providing details of how the local authority proposes to meet the person’s needs following termination. There must be no gap in the provision of support. The only exception to this is where the adult refuses all reasonable offers of continued support via a managed budget and has the capacity to do so.
• Where a decision has been made to terminate or suspend a direct payment, the care and support plan should be reviewed to make sure that any new care and support arrangements meet the person’s needs in the way they choose, as far as possible.

Appendix 1: The Care and Support (Direct Payments) Regulations 2014

SCHEDULE 1:

Adults Whose Needs the Local Authority Must Not Meet By Making Direct Payments

This schedule has no associated Explanatory Memorandum

This Schedule applies to a person if they are—

(a)subject to a drug rehabilitation requirement, as defined by section 209 (drug rehabilitation requirement) of the Criminal Justice Act 2003 (“the 2003 Act”), specified in a community order (as defined by section 177 (community orders) of that Act, or a suspended sentence order (as defined by section 189of that Act);

(b)subject to an alcohol treatment requirement, as defined by section 212 of the Criminal Justice Act 2003, specified in a community order (as defined by section 177 of that Act), or a suspended sentence order (as defined by section 189 of that Act);

(c)released from prison on licence—

(i) under Chapter 6 of Part 12 (sentencing: release, licenses and recall) of the 2003 Act or Chapter 2 of Part 2 (effect of custodial sentences: life sentences) of the Crime (Sentences) Act 1997 (“the 1997 Act”), subject to a non standard licence condition requiring the offender to undertake offending behaviour work to address drug or alcohol related behaviour; or

(ii) subject to a drug testing requirement under section 64 (as amended by the Offender Rehabilitation Act 2014) (release on licence etc: drug testing) or a drug appointment requirement under section 64A (release on licence etc: drug appointment) of the Criminal Justice and Courts Services Act 2000;

(d)required to comply with a drug testing or a drug appointment requirement specified in a notice given under section 256AA (supervision after end of sentence of prisoners serving less than 2 years) of the 2003 Act ;

(e)required to submit to treatment for their drug or alcohol dependency by virtue of a community rehabilitation order within the meaning of section 41 of the Powers of Criminal Courts (Sentencing) Act 2000or a community punishment and rehabilitation order within the meaning of section 51 of that Act;

(f)subject to a drug treatment and testing order imposed under section 52 of the Powers of Criminal Courts (Sentencing) Act 2000;

(g)required to submit to treatment for their drug or alcohol dependency by virtue of a requirement of a community payback or probation order within the meaning of sections 227 to 230 of the Criminal Procedure (Scotland) Act 1995(12) or subject to a drug treatment and testing order within the meaning of section 234B(13) of that Act; or

(h)released on licence under section 22 or section 26 of the Prisons (Scotland) Act 1989 (release on licence etc) or under section 1 (release of short-term, long-term and life prisoners) or 1AA (release of certain sexual offenders) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 and subject to a condition that they submit to treatment for their drug or alcohol dependency.