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4.1.2 Direct Payments

STATUTORY GUIDANCE

DoH, Care and Support Statutory Guidance  - Issued under the Care Act 2014, (2014)

LOCAL GUIDANCE

Direct Payments Policy, Information for families and practitioners (October 2016)

AMENDMENT

In July 2017 a local direct payments policy was added to the local guidance section of this chapter.


Contents

  1. What are Direct Payments?
  2. Who can Get Direct Payments?
  3. How Often are Direct Payments Made?
  4. What is the Process?
  5. Direct Payments Can be Spent on Employing a Personal Assistant (PA)
  6. Direct Payments Can Also be Spent On
  7. Hospital Stays
  8. Direct Payments Can Not be Spent On
  9. What are the Benefits of Direct Payments
  10. Decisions Not to Make Direct Payments
  11. Monitoring and Review of Direct Payments
  12. Reducing the Amount of Direct Payments
  13. Repayment and Recovery of Direct Payments
  14. Ceasing Direct Payments


1. What are Direct Payments?

A direct payment is a cash payment made by the local authority to an individual who has been assessed as needing children’s services. The local authority makes the cash payment to the people with parental responsibility (or directly to the young person) so that they themselves can arrange the services that they need. The payment is then used to secure the relevant services, instead of the authority providing that support through their own services. Direct Payments do not affect benefits.

The amount of Direct Payments will be in line with local average costs of the main substitute service (typically home care or domiciliary care), but with a deduction for the proportion of the cost of that service that can be attributed to direct and indirect overheads. The rate should be set at a level which is sufficient to pay a ‘market’ wage rate to a personal assistant appropriate for the tasks required.

Direct Payments can be made for special educational provision, health care and social care provision.

Local authorities must offer the option of Direct Payments in place of services currently being received. For both education and social care the local authority must be satisfied that the person who receives the Direct Payments is able to manage the direct payments either by themselves or with whatever help the authority thinks the applicant or nominated person will be able to access; will use them in an appropriate way to meet the needs in question and that they will act in the best interests of the child or young person.

Regulations governing the use of Direct Payments for special educational provision place a number of additional requirements on both local authorities and parents before a Direct Payment can be agreed. These include requirements to consider the impact on other service users and value for money and to seek agreement from educational establishments where a service funded by a Direct Payment is delivered on their premises.

Direct Payments for health require the agreement of a Care Plan between the Clinical Commissioning Group and the recipient.


2. Who can get Direct Payments?

Those who have been assessed as meeting the criteria for the Child Health and Disability Team aged 16 or over. Children and young people who have Multi-Agency Assessments and their parents have the right to request a Personal Budget, which may contain elements of education, social care and health funding, and may be delivered by way of Direct Payments. Under the Children and Families Act 2014, this covers those aged 0-25 having special educational needs and disabilities. Direct payments are available if a child or young person is disabled and aged 16 or over or is a carer or parent aged 16 or over for a child with disabilities. No-one can be forced to have a direct payment.

Direct payments can also be made to a willing and appropriate person on a disabled person’s behalf if they lack the mental capacity to agree to and manage direct payments themselves.

Direct payments cannot be used to pay for services from a spouse, partner or a close relative living in the household unless the local authority consider it is necessary to do so. However, a direct payment can be used to employ a relative if they are not living in the household.

To be eligible for receiving Direct Payments as an alternative means of service delivery children or young people who are disabled and their parents or carers must be eligible to receive services from Children Social Care.


3. How Often are Direct Payments Made?

Direct Payments are paid in advance into a bank or building society account specifically set up for this purpose, as a one off payment or on a weekly basis. If the direct payment is assessed as being needed at key times e.g. school holidays, then payment will be made accordingly.


4. What is the Process?

The arrangements for Direct Payments will be included in the child’s/young person’s Multi-Agency Assessment, following an Education, Health and Care Needs Assessment. See Child Health and Disability Procedure.


5. Direct Payments Can be Spent on Employing a Personal Assistant (PA)

  • To take the young person/child into the community to access an activity, support inclusion, going to a club etc;
  • To work with the child directly within the home, to give parents and siblings a break;
  • To stay overnight to give respite to parents;
  • Or a registered childminder or child home carer (for children aged under 8).


6. Direct Payments Can Also be Spent On:

  • Using an approved agency to provide direct care to meet your child/family's needs;
  • After school clubs and holiday play schemes for your disabled child;
  • Residential overnight breaks for your disabled child;
  • By agreement with the Team Manager for direct payments, any service which meets your assessed need for a short break;
  • Special educational provision specified in a Multi-Agency Assessment.


7. Hospital Stays

It could well be that those in receipt of Direct Payments require stays in hospital. This would not necessarily mean that the Direct Payments should cease. Guidance advises that consideration should be given by the local authority, the carer, the holder and NHS Trust to as to how the payments might be used to meet non-health needs or to ensure that the employment arrangements can be maintained. For example, the holder may prefer some personal care tasks to be undertaken by the carer rather than hospital staff. However, the personal care and medical input need to be tailored so as not to interfere with the medical treatment. (Terminating or suspending the carer’s employment may lead to a delay of continuity of care and a delay in discharge).

In instances where the authorised or nominated person requires hospital treatment, the local authority must conduct an urgent review to ensure the holder continues to receive the care and support they need. This might include the duties to be carried out by a temporary nominated person, or through short-term authority arranged care/support.


8. Direct Payments Can Not be Spent On

  • Employing someone without Disclosure and Barring Service and CPR checks or references, or someone subject to a drug or alcohol treatment requirement, youth rehabilitation order or released on licence;
  • Permanent residential accommodation, though they can be used for occasional short breaks, if the local authority agrees, for up to 120 days in any 12 month period. (Note: where two periods of short –term care are 4 weeks or less apart, then the cumulative total of the stays should be added and not exceed  4 weeks if the stay  is to be funded by Direct Payments);
  • A direct payment cannot be used to purchase services provided directly by the local authority or used to replace NHS services or services provided by housing departments (such as Disabled Facilities Grants).

Direct Payments are not intended to replace informal care arrangements and must not be used to employ relatives living in the same household, although relatives can assist users in managing Direct Payments.

Direct Payments will not be provided if the local authority is not satisfied that the person’s needs for the service can be met by using a direct payment or if the direct payment is not safeguarding or promoting the child’s welfare.

Direct payments can only be used for those assessed needs that Children’s Social Care has agreed to meet and the local authority must be satisfied that the services bought with direct payments safeguard and promote the welfare of the child.

If the direct payment recipient chooses to use the direct payment to fund overnight care the child is not considered ‘looked after’ by the local authority.

A direct payment cannot be used to fund overnight provision for a single period in excess of four weeks in any twelve month period. The direct payment recipient should be advised that they need a gap of four weeks between overnight stays otherwise the overnight stays become one single period and the four week rule applies.

A direct payment can not be used for overnight care in excess of 119 days in any period of twelve months.

It is not within the current legal and regulatory framework to use direct payments given in lieu of social care services to routinely provide child care to meet the needs of other siblings.

  • Transport;
  • Meals;
  • Club Memberships.


9. What are the Benefits of Direct Payments?

Direct Payments allow parents and young people greater choice flexibility and control, to employ their own workers at times convenient to them and in the way they wish, to provide an individual service to meet their needs. Payments made do not affect welfare benefits.


10. Decisions Not to Make Direct Payments

Where the local authority decides not to make Direct Payments it must inform in writing the child’s parent or the young person of its decision and reasons in a format that is accessible to them and in line with the Data Protection Act. It must also advise of their right to request a review of the decision.


11. Monitoring and Review of Direct Payments

The local authority must monitor and review the use of Direct Payments by the recipient at least once within the first three months of Direct Payments being made, and when conducting a review or a re-assessment of a Multi-Agency Assessment. In addition, a recipient may make a request for the local authority to review the making and use of Direct Payments and the local authority must then consider whether to carry out a review.

When carrying out a review, the local authority must consider whether:

  • It should continue to secure the agreed provision by means of Direct Payments;
  • The Direct Payments have been used effectively;
  • The amount of direct payments continues to be sufficient to secure the agreed provision;
  • The recipient has complied with their obligations on the use of the Direct Payment.

Following a review the local authority may:

  • Substitute the person receiving the Direct Payments with a nominee, the child’s parent or the young person, as appropriate;
  • Increase, maintain or reduce the amount of Direct Payments;
  • Require the recipient to comply with either or both of the following conditions:
    • Not to secure a service from a particular person;
    • To provide such information as the local authority considers necessary.
  • Stop making Direct Payments.

(See also Section 7, Hospital Stays)


12. Reducing the Amount of Direct Payments

Where the local authority decides to reduce the amount of Direct Payments, it must provide reasonable notice to the recipient, and must set out in the notice the reasons for its decision.

The local authority must reconsider its decision, where requested to do so by the recipient, but is not required to undertake more than one reconsideration of a decision. When conducting its reconsideration, the local authority must consider the representations made by the recipient (and where the recipient is a nominee, any representations made by the child’s parent or the young person) and must then provide written reasons to the recipient (and to the child’s parent or young person, where the recipient is a nominee) of its decision following the reconsideration. The local authority may reduce Direct Payments following reasonable notice despite the fact that a request for reconsideration has been made.


13. Repayment and Recovery of Direct Payments

The local authority may require the recipient to repay part or all of the direct payments, where:

  • The circumstances of the child or young person have changed in a manner which has an impact on the appropriateness of the agreed provision;
  • All or part of the Direct Payments have not been used to secure the agreed provision;
  • Theft, fraud or another offence may have occurred in connection with the Direct Payments;
  • The child or young person has died.

It must give notice in writing to the recipient, setting out the reasons for the decision, the amount to be repaid and a reasonable timescale within which the amount must be repaid.

The local authority must reconsider its decision where requested to do so by the recipient (but is not required to undertake more than one reconsideration of a decision). When conducting its reconsideration, the local authority must consider the representations made by the recipient (and where the recipient is a nominee, any representations made by the child’s parent or young person) and must then provide written reasons of its decision following the reconsideration to the recipient (and to the child’s parent or young person, where the recipient is a nominee).

The local authority may only seek repayment of any portion of the Direct Payments that has not already been spent on the agreed provision.


14. Ceasing Direct Payments

A person for whom direct payments are made may decide at any time that they no longer wish to continue with direct payments. The Regulations provide that a council shall cease making direct payments if the person no longer appears to the council to be capable of managing the direct payment or of managing it with help.

The Regulations also state that a council shall also stop making direct payments if it is not satisfied that the person’s needs for the service can be met by using a direct payment or if the direct payment is not safeguarding or promoting the child’s welfare.

The Local Authority might also discontinue payments if the person fails to comply with a condition to which the direct payments are subject, for example that the payments must be used to obtain services that the user has been assessed as needing and the council has reasonable reason to fear that further payments may be misspent.

The social worker, Lead Professional or Team Manager should discuss with individuals as soon as possible if it is considering discontinuing direct payments to them. They should be given an opportunity to demonstrate that they can continue to manage direct payments, albeit with greater support if appropriate. A minimum period of notice will be established that would normally be given before direct payments are discontinued. This should be included in the information to be provided to people who are considering direct payments.

Direct payments should be discontinued when a person no longer needs the services for which the direct payments are made. This might particularly happen in situations where the direct payment is for short term packages when leaving residential care or hospital.

Unless there are exceptional circumstances the notice period for the discontinuation should be 3 months.

There may be circumstances in which the council discontinues direct payments temporarily. An example might be when an individual does not require assistance for a short period because their situation has improved and they do not require the services that the direct payment is intended to secure. Such a change in circumstances will in most circumstances be facilitated alongside a reassessment. However, there may be short term situations, for example if the child is admitted into hospital, where a reassessment is not required.

Direct Payment packages in Bournemouth are set up for a period of 6 months after which they have to be reviewed in order to be continued.

Exit clause for change of DP Package after review (6 months).

End