Direct Payments

This chapter is about Direct Payments. It should be read alongside any available local guidance or processes.

Although this chapter may be helpful to those based in the team responsible for Direct Payments, it does not provide specific guidance for this team who should refer to available local processes and the following as required:

1. What is a Direct Payment?

A Direct Payment is a method of managing some or all of a personal budget. Instead of arranging services, the Local Authority makes regular financial payments to the person/carer so that they can arrange their own Care and Support/Support. This allows them to choose how to use the money to meet the needs that the Local Authority has agreed to meet (either under its duty or powers).

Direct Payments can be paid directly to the person needing the Care and Support (or carer needing Support) or to another person who they nominate. If a person with Care and Support needs lacks capacity, a suitable person can be authorised to receive the Direct Payments (see Section 4 below).

Direct Payments will usually be paid net of any contribution the person/carer has been assessed to pay towards the cost of their Care and Support/Support. The person/carer is expected to pay their contribution into the Direct Payment account alongside the Local Authority payment and these funds together will make up the personal budget. However, in some cases, the Local Authority may decide to make a Direct Payment of the gross amount of the personal budget in this case the person’s/carer’s contribution must be paid back to them. As part of arranging a Direct Payments, local authorities must be clear about whether the payments will be made on a gross basis or a net basis.

2. Promoting Direct Payments

The Local Authority is expected to promote the use of Direct Payments, as they provide the maximum level of choice and control. The ability to meet needs by taking a Direct Payment must be clearly explained to the person/carer, so that they can make an informed decision about whether they wish to take this option.

This could apply:

1. When giving information and advice at any time;
2. During initial discussions about how eligible needs could be met;
3. When Care and Support Planning/Support Planning;
4. During statutory reviews; or
5. Throughout any process of monitoring.

3. Providing information and Advice about Direct Payments

General information and advice about Direct Payments should be provided whenever requested, or whenever you feel it would be beneficial.

The following is a list of information that you should be able to provide:

1. When a Direct Payment can/cannot be provided;
2. How a Direct Payment can/cannot be used;
3. Who can/cannot manage a Direct Payment;
4. The process of arranging a Direct Payment;
5. How often a Direct Payment is normally paid;
6. How any assessed financial contributions should be made;
7. Where prepaid cards are available, how they work; and
8. How Direct Payments are monitored and reviewed.

When providing this information and advice, you should seek the support of your line manager or the team responsible for Direct Payments as required.

Also see the 'Direct Payments' section of the Care Act resource.

Although you are expected to provide general information and advice about Direct Payments you should not provide specific information or advice about employer liabilities and responsibilities where a person intends to employ a Personal Assistant (PA). Nor should you ever recommend an individual PA. Where such information or advice is required, you should support the person to access it, either from the team responsible for Direct Payments, or from a specialist Direct Payments advisor or support service (some of whom can provide a list of local PAs).

Any information you provide about available local services to meet needs should be objective and relevant to the person's needs. You must take care to ensure that you do not (or do not appear to) influence the person’s decision about which services to arrange.

Accessibility

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.

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.

For the sole purpose of understanding information and advice there is no duty under the Care Act to provide an independent advocate. This must be a local decision, taking into account the available evidence and presenting circumstances.

4. Direct Payments and Mental Capacity

General guidance

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.

A suitable person a someone who you are satisfied will act in the best interest of the person receiving Care and Support when arranging support and services.

Fluctuating capacity

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.

5. Arranging a Direct Payment

Deciding to arrange a Direct Payment

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.

Before arranging a Direct Payment

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.

People prohibited from providing care are relatives living in the same household as the person (unless there has been prior agreement due to the specific circumstances of the person).

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.

A Direct Payment cannot be provided to meet the needs of anyone who is subject to a requirement, license or order under criminal legislation that requires them to undertake drug or alcohol rehabilitation, behaviour therapy or testing.

If the same outcomes can be achieved for the person/carer, the Local Authority can decide not to provide a Direct Payment if it is more cost-effective to commission a service directly.

So long as the above circumstances apply, a Direct Payment can be used to provide after-care services under Section 117 of the Mental Health Act 1983.

Attaching other conditions to a Direct Payment

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.

Even though a condition can prohibit a named individual from providing care using the Direct Payment the Local Authority cannot dictate who should provide the care.

Decisions about attaching a condition or restriction to a Direct Payment should always be mindful that undue conditions and restrictions (such as restrictions on how a Direct Payment can be spent) can reduce choice and control. This could have the effect of reducing the overall effectiveness and value of the Direct Payment.

Arranging the Direct Payment

The Direct Payment should be arranged after the Care and Support/Support Plan is signed off and the final personal budget is agreed.

You should refer to available local processes and guidance to arrange the Direct Payment, including any requirements around the use of prepaid cards or Direct Payment support services.

If the person with Care and Support needs already has a Direct Payment under the National Health Service Act 2006, you should establish whether there are local arrangements in place for one organisation to coordinate all payments. Where such arrangements are in place, they should be followed as this will minimise the administrative burden for the person/carer receiving the Direct Payment.

6. Delays

Delays in arranging the Direct Payment

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.

Delays in arranging services

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.

7. Monitoring a Direct Payment

The Direct Payment should be monitored to ensure that it is being used to meet the needs in the Care and Support/Support Plan. This monitoring should be proportionate to the needs being met and the risks of mismanagement.

Depending on the nature of what is being monitored, it may be more appropriate for monitoring activity to be completed by the team responsible for Direct Payments.

Any monitoring activity should be clearly recorded.

Where the individual receiving the Direct Payment has been successfully managing it for an extended period, consideration should be given to reducing the amount of monitoring to the lowest level.

Where Direct Payments are being made to an authorised person (Deputy of Lasting Power of Attorney), it is a condition of the Direct Payment that the authorised person must notify the Local Authority if the person gains this capacity. In those circumstances, the Local Authority should discuss whether the person wishes the Direct Payments to continue and make the appropriate arrangements.

8. Concerns about an Existing Direct Payment

Concerns about an existing Direct Payment can arise at any time and, if you are working with a person/carer who is using a Direct Payment, you should have conversations about how the Direct Payment is working as and when you feel they are required (not just during a statutory review or reassessment).

Examples of concerns could be:

1. The individual receiving and managing the Direct Payment does not appear capable (even with support);
2. The Direct Payment is being used to buy items or pay for activities or services that are illegal or not meeting identified needs (for example buying a gift, paying a household bill or gambling);
3. In the case of a person with Care and Support needs who lacks capacity, the authorised or suitable person does not appear to be arranging services in their best interests;
4. If the person has fluctuating capacity, the authorised or suitable person is not permitting them to make their own decisions about how to use the Direct Payment during periods when they have capacity to do so;
5. The Direct Payment is being used to purchase care from a family member living in the same household (without agreement to do so).

If you identify or become aware of any concerns you should record and discuss them with your line manager and the team responsible for Direct Payments.

1. Placing a condition (or further conditions) on the Direct Payment;
2. Increase monitoring activity;
3. Vary the Direct Payment;
4. Temporarily suspend the Direct Payment; or
5. End the Direct Payment.

9. Reviewing a Direct Payment

The timing of a Direct Payment Review

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.

Unless there is a valid reason not to, a Direct Payment review should normally coincide with the Care and Support/Support Plan review.

The purpose of a Direct Payment review

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.

Who should be involved

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

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.

If the following apply, the Direct Payment review conversation can be ‘light touch’:

1. The individual receiving and managing the Direct Payment is happy to continue doing so;
2. The Direct Payment remains an appropriate way to manage the personal budget and meet the needs identified in the Care and Support Plan; and
3. The Local Authority has no concerns about how the Direct Payment is being managed or used.

Deciding the outcome of the review

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.

Making a record of the review

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.

10. Ending a Direct Payment

Any individual in receipt of a Direct Payment (whether this is the person/carer or a nominated, authorised or suitable person) can request to terminate the payments at any time. At this request, the payments must be terminated, and alternative arrangements made to manage the personal budget and meet needs.

Note : If the Direct Payment is being terminated because the individual receiving and managing it is no longer willing to do so, another Direct Payment can be arranged if there is a different individual willing and capable to assume this responsibility.

The Local Authority can also use its discretion to end a Direct Payment if:

1. It is no longer satisfied that it is an appropriate way to meet needs; or
2. A breach if any condition has occurred.

Any decision to end, suspend or vary a Direct Payment must not lead to eligible needs being unmet. Where there is no continuation of services, you must arrange interim services as required to ensure eligible needs are met.

The Local Authority may require the Direct Payment to be repaid if it has been used for purposes other than making arrangements to meet the needs that the Local Authority has agreed to meet, or where one of more conditions have not been complied with.

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