Direct payments are monetary payments made to individuals seeking support, in order to make decisions about meeting their eligible health, mental health, and/or their wider care and support needs, themselves, rather than take the services that the funding body would otherwise arrange. This gives them more control over the timing and manner of the means for meeting needs.
They are based on individuals’ Personal Budgets (a concept under the Care Act), and must comprise an amount sufficient to meet the needs in the care plan (the current market rate).
For a carer, the payment will be a negotiated amount for the carer’s own support, but there may be additional funding for the purchase of ‘replacement’ care to be provided directly to the underlying person in need in particular circumstances if certain conditions are met (see The Care and Support Guidance, paragraphs 11.42-11.46).
There are similar systems for people entitled to NHS Continuing Healthcare and s117 Mental Health Act aftercare with slight operational differences arising from the different regulations applicable.
NHS England provides extensive information on personal health budgets here: https://www.england.nhs.uk/long-read/guidance-on-direct-payments-for-healthcare-understanding-the-regulations/.
The main source of the law on the social care side of a s117 package via a direct payment is found here: https://www.legislation.gov.uk/uksi/2014/2871/regulation/11/made.
The Care and Support (Direct Payment) Regulations 2014 can be found at https://www.legislation.gov.uk/uksi/2014/2871/regulation/4/made
The National Health Service (Direct Payments) Regulations 2013 can be seen here https://www.legislation.gov.uk/uksi/2013/1617/made
CHC arrangements are called Personal Health Budgets, and s117 arrangements are called Direct Payments but are based on the equivalent cost for providing or arranging aftercare.
There is a power to fund help, Section 25(8) Care Act and encouragement in the Guidance for councils to make take-up of Direct Payments feasible, but no duty to help, as such.
People must be given access to relevant and timely information from councils so they should get to hear about the pros and cons and be able to decide whether to request them; councils ‘should’ support people to use and manage the payment properly, the Guidance says at para 12.21.
The Direct Payment is designed to be used flexibly and innovatively and there should be no unreasonable restriction placed on the use of the payment, as long as it is being used to meet eligible care and support needs (see para 12.35 of the Guidance).
Some councils refuse to be drawn on categories which will be approved; others are very prescriptive and proscriptive. Such stances are challengeable by way of public law principles for unreasonableness, breach of human rights or for negating the whole statutory purpose of the Direct Payments framework.
A funder whose policy has been unclear could well be persuaded under threat of going to the ombudsman that it would be inadvisable to pursue repayment, because of its own failings in the matter. See an example of this in the LGSCO report for Buckinghamshire Council (21 013 987) https://www.lgo.org.uk/decisions/adult-care-services/residential-care/21-013-987.
A Direct Payment is not available for anyone from any category explicitly excluded by regulations from receiving a Direct Payment (for instance people on substance and alcohol misuse orders).
If a person’s situation presents particular challenges regarding the likelihood of irresponsible use, such as where the person is mentally unwell or neuro-diverse and affected by rigidly fixed thinking, the council is entitled to grant a Direct Payment but must factor all relevant considerations into its decision and be prepared to articulate reasons why not.
One cannot spend the money on something which is prohibited, such as registered nurse nursing, in one’s own home, or on long term residential care: not even the council can lawfully fund a person for the former, at all, and nobody is allowed to spend direct payments on care home care, as yet, beyond respite periods in accordance with complicated counting rules (outside of a limited pilot).
Direct payment clients’ purchases are not subject to public procurement rules. They are individuals’ private purchases, even though the money came from the State. The money ‘belongs’ to the person but is impressed with a set of conditions which mean that it can only be used for restricted purposes. If the person using the money dies, for instance, the money must be paid back to the funder, after debts and liabilities have been paid to staff or agencies under contracts with notice periods.
Section 33(3) Care Act 2014 provides that a[ny] council Direct Payment is made on condition that it be used only to pay for arrangements under which the needs specified under section 25(2)(a) in the care and support plan or (as the case may be) the support plan – are met.
S33(4) says that where one or more of conditions 1 to 4 set out in section 31 is no longer met, or one or more of conditions 1 to 5 in section 32 is no longer met, the local authority must terminate the making of Direct Payments.
S33(5) says that where a condition of the type specified under subsection (2)(b) under regulations, or the condition mentioned in s33(3) is breached, the local authority may terminate the making of Direct Payments, and may require repayment of the whole or part of a direct payment. Councils have a discretion in these regards, which must be exercise rationally and lawfully if legal risk is to be avoided.
Any council administering Direct Payments can attach wide ranging conditions to Direct Payments, but the conditions have to be reasonableand lawful, because that is a public law principle applicable to any public bodies’ stance. The conditions can go so far as to prohibit the meeting of needs by a particular person, but implicitly only for a good and disclosed reason, not a whole class of persons, such as one’s ‘friends or relatives’. The conditions may also require the adult or Authorised Person under s32 to provide information to the authority.
However, conditions are not allowed to require the needs of the adult to be met by any particular person; nor may they require information to be provided any more frequently and in more detail than is reasonably required by the funding authority for the purpose of enabling it to ascertain that making Direct Payments is an appropriate way to meet the needs or that the conditions upon which it is made are complied with; nor provided in a format which is not reasonably practicable for the adult or authorised person to provide. (See Regulation 4 Care and Support (Direct Payments) Regulations 2014, https://www.legislation.gov.uk/uksi/2014/2871/regulation/4/made).
The general principle is that they cannot be used on paying people to meet the needs, if they are close relatives living in the same household or the spouse or civil partner of the adult, (regardless of where they live) – or people living together ‘as if’ spouses or civil partners. (See Regulation 3(1) Care and Support (Direct Payments) Regulations 2014, https://www.legislation.gov.uk/uksi/2014/2871/regulation/3/made).
The prohibited close relatives are the adult’s parents, or parents in law (step parents of adults are not mentioned); any son or daughter or son-in-law or daughter-in-law of the adult; any stepson or stepdaughter of the adult; brothers or sisters; aunts or uncles, or any grandparent. A second group of prohibited relatives comprises the formal or informal spouse or civil partner of any of the other close relatives already mentioned, living in the same household as the adult. Where the adult’s close relative has died or divorced and their surviving or ex- spouse or civil partner is wishing to provide care to the adult, that degree of proximity is not prohibited.
The exception arises if the local authority considers it is necessary to pay an otherwise prohibited person (so, this is a discretion one should be told about and reasons should be given for not exercising it) to meet the care needs of the adult. This might be for paying a partner or relative to do the care at night when care is otherwise impossible to find or afford.
Here are some more unusual things that ‘could’ be bought with a Direct Payment, if and only if their cost-effectiveness has been explored and approved in the care planning phase, such that the approach to costing was part of the accepted overall budget.
• A personal trainer – where the person cannot be expected to motivate themselves
• Exercise equipment – where it will prevent deterioration in an aspect of the person’s condition and is not part of social prescribing in the local ICS system
• Aromatherapy massage – more likely to be in a carer’s budget
• A safe patio for the back garden – where the person isn’t able to go out confidently to a park, for instance but there is no small adaptations scheme, locally
• Singing lessons – where it will promote wellbeing for someone for whom this was an important part of their life
• A subscription to a specialist tv channel – where it is the only way to keep someone stimulated or sustain a carer’s role
• A new TV or a new laptop with hi-speed gaming tech, sound and visual cards – where it is the only way to keep someone stimulated and in contact with other people
• A phone contract – where it is essential for giving the person confidence to travel alone or for tracking their whereabouts in the least restrictive manner
• A trip to some sort of public event – where the escort is paid for where it is the only form of enjoyment the person can derive pleasure from
• An assistance dog and its upkeep and insurance, if there is no other source – because it gives confidence outside one’s home
• An air conditioning unit for one’s home – an item that might not be available from the ordinary equipment store nor the NHS
• A lockable wrist-worn tracking system – less restrictive than personal continuous supervision and control
• Advocacy for some other agency’s services – lawful under s8, and of potential use to the funding body, too
• Religious instruction – a facility that might be part of respecting someone’s culture and religious manifestation
• A mountain bike – a facility where it might be what is needed to get a person back to a level of independence/fitness
• Additional costs of accessible accommodation for a family holiday – where the family is needed for the care
• Personal care from someone who just happens to be a qualified nurse – there is no prohibition against that
• A subscription to branded Diet meals online (albeit likely to be charged for at full cost as non-care under the regulations) – and the delivery fee
• A weekend away at a B&B for parents of a disabled young person as respite whilst the person is cared for at home
• Entrance fees to a museum, an amusement park, a football match for the person and an enabler (with the cost for the individual potentially charged for at full cost under the regulations, as non-care (recreational activities))
• Running costs of a privately owned hot tub which assists with pain management – because it is reasonable.