Direct Payments

When providing information and advice to a person with Care and Support needs (or a carer with Support needs), it must be given in a way that it can be understood and used. This is a legal requirement of the Care Act.

See: How to Provide Information and Advice

If you feel that the person/carer will need support to understand the information and advice provided to them, you should consider:

1. Whether the information can be provided in a different way;
2. Whether you can take any additional steps to support them to understand it (for example talking through the information on the telephone or in person);
3. Whether it would be appropriate to appoint an independent advocate to support the person/carer to understand and use the information.

A person who lacks capacity to request or manage a Direct Payment can still receive one under the Care Act so long as the person making the request for the Direct Payment is either:

1. A person authorised under the Mental Capacity Act 2005 to make decisions relating to the person’s Care and Support (e.g. a Deputy or a Lasting Power of Attorney); or
2. A person approved by someone authorised under the Mental Capacity Act to make decisions relating to Care and Support; or
3. Where there is no authorised person under the Mental Capacity Act, the Local Authority considers the person making the request to be suitable.

If none of the above apply, a Direct Payment cannot be arranged.

If a person has fluctuating capacity, an authorised or suitable person must still be appointed to receive and manage the Direct Payments. However, during periods where the person has capacity to make decisions about the Direct Payment, the authorised or suitable person should allow the person to manage the Direct Payment themselves.

Before arranging the Direct Payment, you should be satisfied that the authorised or suitable person understands this and that it will be the case.

The option of using a Direct Payment to manage some or all of the personal budget should be discussed and agreed as part of the Care and Support/Support planning process.

See: Care and Support Planning

See: Support Planning

Before proceeding to arrange a Direct Payment, you should be satisfied that the individual that will be receiving and managing the payments will meet the following conditions. These are the conditions of all Direct Payments:

1. The Direct Payment will only be used to pay for arrangements which meet the needs that the Local Authority has agreed to meet;
2. The Direct Payment will not be used to pay a prohibited person to meet the needs;
3. Where a person lacks capacity to make decisions about Direct Payments themselves, the authorised person will notify the Local Authority if the person gains this capacity; and
4. Appropriate checks of carer’s criminal records will be carried out.

In addition to the above conditions, you should also be satisfied that:

1. A Direct Payment is the most appropriate way of managing the personal budget and meeting needs;
2. The person with Care and Support needs (or carer with Support needs) is not excluded from receiving a Direct Payment under the Care Act;
3. The individual who will be receiving and managing the Direct Payment is capable (with or without support);
4. Where the individual who will receiving or managing the Direct Payment is not the person with Care and Support needs (or carer with Support needs), that they are willing;
5. Where the person with Care and Support needs lacks capacity, the Direct Payment will be used to arrange services that are in their best interests;
6. If the Direct Payment will be used to employ a Personal Assistant, that employer related costs have been taken into account;
7. If used to pay for respite in a care home, no more than 4 weeks of this will be taken consecutively in any 12 month period.

Note: For guidance about the above, including the 4 consecutive weeks in a care home rule, see the 'Direct Payments' section of the Care Act 2014 resource.

If you have any doubts about the above conditions, you should seek the advice of your line manager or the team responsible for Direct Payments.

The Local Authority is permitted to attach other conditions to a Direct Payment if it considers it appropriate to do so. For example, if there are concerns that a Direct Payment will be mismanaged or misused, or that arrangements will not be made in the best interests of a person who lacks capacity.

Examples of conditions include:

1. Prohibiting a named individual from providing care; and
2. That certain information must be provided to enable effective monitoring.

If you feel that it is appropriate for a condition to be attached to a Direct Payment, you should discuss this with your manager. If they agree, you should notify the team responsible for Direct Payments and agree arrangements to monitor the condition.

Delays in arranging the Direct Payment must not lead to delays in meeting eligible needs.

If a delay in arranging the Direct Payment occurs, you must arrange interim services as required to ensure eligible needs are met.

The duty to meet eligible needs is not discharged when the Direct Payment is arranged, but when the services to meet eligible needs are in place.

If delays in arranging services occur, you must arrange interim services as required to ensure eligible needs are met. These interim services should be commissioned by the Local Authority, and an adjustment should be made to any future Direct Payment paid.

You should consider what support the person or carer may need to arrange services:

• Is a family member or friend able to assist?
• If they have an advocate, can they support?
• Is there anything you can do to help arrange the service e.g., speaking to a provider?

If the person is finding it difficult to recruit a personal assistant, you should make sure they have access to specialist support and advice.

Initial reviews of a Direct Payment must take place no later than 6 months after the first payment is made.

Further reviews must take place no less than every 12 months after that.

It is prudent to carry out more frequent reviews when specific conditions have been placed on the Direct Payment, or where there are concerns about mismanagement or misuse.

The purpose of the review is to:

1. Reflect on what is working and not working about the Direct Payment;
2. Consider what may need to change about the Direct Payment;
3. Make sure the Direct Payment remains the most appropriate way to manage the personal budget and arrange the required services; and
4. Make sure the Direct Payment is supporting the person/carer to meet the outcomes in the Care and Support/Support Plan.

The Direct Payment review must involve:

1. The person receiving Care and Support (or carer receiving Support); or
2. Any carer a person with care and support needs has;
3. The individual to whom the payments are being made (if this is not the person/carer);
4. Anyone who is providing administrative or management support;
5. Anybody the person/carer asks the Local Authority to involve;
6. In the case of a person who lacks capacity, anybody authorised by the Mental Capacity Act to make decisions about Care and Support provided to the person (a Deputy of Power of Attorney); or
7. Where no authorised person exists, anybody the Local Authority deems to be interested in their welfare.

It is also important to involve the team responsible for Direct Payments in the review. They will be able to provide information about whether the necessary record keeping and administrative requirements for receiving and managing a Direct Payment are being met.

The review conversation must confirm:

1. How well the process of receiving payments is working;
2. How well the Direct Payment is being managed (including whether any conditions attached to it are being met);
3. Whether the records required by the Local Authority are being maintained by the individual receiving and managing the Direct Payment;
4. Whether information is being provided to the Local Authority as required;
5. Whether the Direct Payment is being used as anticipated;
6. Whether the Direct Payment is supporting the person/carer to meet the outcomes in their Care and Support Plan/Support Plan.

The Local Authority is responsible for deciding the outcome of the review. However, all reasonable steps should be taken to reach an agreement with all those involved in the review.

The decision must have regard for:

1. The views of the person/carer about the outcome;
2. The impact of the outcome on the person/carer's Wellbeing; and
3. The views of anyone else consulted in the process.

Any decision must be evidence based and robust.

There may be times when the person/carer, their representative or another person disagrees with the decision made about the review outcome. In this situation, you should be open to reviewing the available evidence to ensure that the decision is robust. You should be open and transparent about the evidence sources you have used and take steps to try and support the person/carer to understand the decision you have made. Where ongoing disagreement persists, you should make the person (or their representative)/ carer aware of their right to complain.

The following information should be recorded in a review record:

1. Any issues or concerns about the processes of receiving and managing Direct Payments;
2. Whether records required by the Local Authority are being maintained;
3. Whether information is being provided to the Local Authority as required;
4. Whether the Direct Payment is being used as anticipated;
5. Whether the Direct Payment is supporting the person/carer to meet the outcomes in their Care and Support Plan/Support Plan;
6. Whether the Direct Payment is still the most appropriate way to manage the personal budget and meet eligible needs;
7. Whether any changes are required to the Direct Payment;
8. Whether the Direct Payment will continue;
9. The views of the person/carer receiving and managing the Direct Payment (or a nominated, authorised or suitable person) about all of the above.

The person/carer and any nominated, authorised or suitable person receiving or managing the Direct Payment must be provided with a copy of the formal record.