What to Say If: you are told that you are not able to have a direct payment …

A.   Because we are not doing them at the moment / the process is just too complicated and it will take too long

“I am sure that councils do not have the legal right to say that it just doesn’t suit them to give money out as a substitute for services.

The Care Act says that if 4 conditions are met, you must give me a direct payment. So I will need your reasons, please, in writing, as to which of the 4 you do not think I meet, so that I can address them, with the benefit of legal advice.

The Guidance (which you have to have regard to, the case law and the Care Act say so) says this:

….processes must not restrict choice or stifle innovation by requiring that the adult’s needs are met by a particular provider, and must not place undue burdens on people to provide information to the local authority.

The Guidance also says this:

Where 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 …

So it’s obvious that you have to do that much, at least, in order to be seen to be treating me in accordance with the rules of procedural fairness for any public body.

The reasons have to be given to me in an accessible format according to the guidance, setting out:

‘which of the conditions in the Care Act have not been met, the reasons as to why they have not been met, and what the person may need to do in the future to obtain a positive decision. The consideration stage should be performed as quickly as is reasonably practicable, and the local authority must provide interim arrangements to meet care and support needs to cover the period in question.’

These are the 4 conditions you need to focus on, please:”

  • the adult has [mental] capacity to make the request, and where there is a nominated person [a helper suggested by the person seeking the direct payment], 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 [special category of] adult or nominated person
  • the local authority is satisfied that the adult or nominated person is capable of managing direct payments, either by himself or herself, or with whatever help the authority thinks the adult or nominated person will be able to access
  • 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


B.   Because we don’t think it’s an appropriate way to meet your needs…

“What exactly do you mean, please, by not appropriate? It’s a very woolly concept, and I am sure that you can’t just trot it out without explaining what you are really bothered about.

The guidance (which you are obliged to have regard to) says that ‘generally’ a direct payment should be regarded as appropriate:

  • In all cases, appropriateness is for local authorities to determine, [subject to ordinary principles of judicial review such as rationality, an evidence basis, absence of pre-determination or a fetter of discretion etc] although it is expected that in general, direct payments are an appropriate way to meet most care and support needs.
  • Direct Payments “remain the Government’s preferred mechanism for personalised care and support” and
  • Local authorities must not use this condition to arbitrarily decline a request for a direct payment. 

Also, in the well-being section of the Care Act, control is specifically mentioned:

S1(2)(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

  • Are you saying that there’s no point in my having a direct payment because if YOU can’t find a service I won’t be able to either?


  • Because if so, can I remind you that if you give me a direct payment you can actually give me permission to employ unregulated care workers, which is something YOU cannot do, or buy, as a council, and that would solve your commissioning and market management problem, would it not?


  • Or are you saying that it’s inappropriate because the same items or services can be bought more cheaply by you than by me, because you are a bulk purchaser?


  • If so, I have taken advice about that, and I have been advised that there is no legal basis in the Act or regulations for saying that cost comparisons for the same service or thing, via direct commissioning or by way of giving me a direct payment, are a legally relevant consideration to the question of appropriateness. Economic viability of a direct payment route to meeting needs is not mentioned in the legal framework for adult social care, whereas it is, in the personal HEALTH budgets framework.


          –    In so far as the Guidance envisages that you can take cost differentials into account, when setting the budget, that is a different matter, to appropriateness. Even then, that bit of the guidance is unsupported by any reference to primary or secondary legislation. I accept that it might make a difference to budget setting if the cost differential for the same thing via the different buying routes was massive, but not if it is simply the effect of my being an individual purchaser in the local market, whilst you are a bulk buyer.”


C.    Because you haven’t got sufficient mental capacity to ask for one

“What is your evidence basis for doubting my capacity? The Mental Capacity Act says that everyone should be presumed capacitated unless the contrary is established, so you can’t just assert incapacity without sharing your thinking with me/us.

The Guidance (which you have to have regard to, because the case law and Care Act say so) says this:

The following considerations should be made when assessing capacity:

  • does the person have a general understanding of what decisions they need to make and how they need to make them?
  • does the person have a general understanding of the consequences of making, or not making the decision?
  • is the person able to understand, retain, use and weigh up all relevant information to support the decision?
  • can the person communicate the decision? (this may involve the use of a specialist or independent advocate)
  • is there need to bring in additional expertise to aid the assessment?


My /our take on these facets of capacity is this: [explain your position carefully]… “


D.    Because you wouldn’t be able to manage one, day to day

“The Guidance (which you have to have regard to, because the case law and Care Act say so) says this:

‘Local authorities should therefore take all reasonable steps to provide this support to whoever may require it.

To comply with this, many local authorities have contracts with voluntary or user-led organisations that provide support and advice to direct payment holders, or to people interested in receiving direct payments.

This condition should not be used to deny a person from receiving a direct payment without consideration of support needs.

Consideration should also be given to involving a specialist assessor in determination of support requirements’

  • So, please tell me what is available locally through steps that you the council have taken to provide this support.
  • I understand too that the law allows me to nominate a relative who can be paid for their time in administering the direct payment as long as you think it’s necessary – well you seem to think it is, and I have a relatives who’s up for doing that, but it will take up at least 2 hours a week, so what shall we say per hour, please, on the footing that they’re going to be self-employed?
  • Are you saying that it’s NOT necessary and that I can’t choose to have my relative do that, simply BECAUSE you’ve spent money on commissioning or grant funding a payroll support service? Or are you saying that I can choose my relatives to help but not for money, because of your other arrangements? Can you explain, please, how that is consistent with giving me choice and control?”


E.   Because we don’t approve of your preferred helper

“Er, why not please? What do you have against them?

If you have some evidence basis for regarding them as not suitable to help, then you need to tell me and them, so that we can attempt to address your concerns, and in order to abide by the rules of natural justice and procedural fairness that apply to all public bodies.”


F.   You can’t have one, unless you use one of our preferred providers for the care services you’ll be buying

“Come off of it!

The Care Act and the Guidance both make it crystal clear that you cannot tell a direct payment holder who to spend the money on. I know that you have a power to make it a condition that the money is NOT spent on a particular person (ie a named individual or a company) but even then you’d have to explain why, to be fair to everyone concerned.

You can’t seriously think that you can stipulate as that sort of negative condition that the provider cannot be ‘anyone who is not on our framework or preferred provider list’ can you? That’s indefensibly too broad and just a cheeky way of trying to tell us who we MUST spend it on.

  • And can we ask why would you even want to be doing that? Preferred providers must be struggling anyway to meet your own demands for services, in the current climate, regarding workforce difficulties that are known to be operating nationwide.


  • Is it because you’ve somehow persuaded all those framework providers to agree not to charge direct payment holders any more per hour than what you’ve been able to bully them down to accepting from yourselves? How could making tendering for your business dependent on what these providers would agree to charge other people altogether for their services, ever be legally enforceable?”