MERTON STAFF ONLY
Direct Payments
Policy
Revised: September 2015
Updated by: Rosie Mckeever
Contents:
1 What are Direct Payments?
1.1. Introduction
1.2.Legislation
2Consent, capacity and ability to manage
2.1 Who is eEligible to rReceive Direct Payments?
2.2Who is excluded from Direct Payments?
2.3Capacity to consent to a direct payment
2.4Assessing the ability to manage a direct payment
2.5Direct payments for adults lacking capacity to consent/Third party signatory
2.6 Young people transitioning to adulthood
2.7Direct payments for children and young people with SEND
2.8Trusts/ Circle of Friends
2.9Episodic / Fluctuating Conditions
2.10Direct Payments nominated individuals or organisations
2.11Lasting Power of Attorney
3 Services Direct Payments Cover
3.1 Employment of Personal Assistants (Health and Safety)
3.2 Care purchased through care agencies
3.3 Equipment
3.4 Respite care
3.5 Direct payments for Carers services
3.6In House Services
3.7(NHS Personal Health Budgets)
3.8Mixed packages of care
3.9One-off payments.
3.10Contingency planning
3.10
4 How are direct payments set up?
4.1 Who assists the customer to set up direct payments?
4.2 Care Managers Role
4.2.1 Offering Direct Payments
4.2.2 Referring to DPSS
4.2.3Assessments for Direct Payments UserCustomers
4.2.4Care Plans for Direct Payments
4.2.5 Financial Assessments for Direct Payment UserCustomers
4.2.6 Collection of Client Contribution
4.2.7 Independent Living Fund
4.2.8 Use of Client’s Own Resources (Direct Payment top up)
4.2.9Self-Funders
4.2.10 Other Documentation required for implementing direct payments by the care manager.
4.2.11 Entering Direct Payments services on Carefirst
4.2.12. CM review procedures
4.3 Direct Payments Support Service (DPSS).
4.3.1User Guide
4.3.2 Recruitment
4.3.3DPSS Reviews
4.3.4Merton Managed Accounts
4.4 Direct Payment UserCustomers/Carers responsibility
4.4.1 Pre-Paid Cards
4.4.2 Meeting UserCustomer’s Care needs
4.4.3 Becoming an employer/responsibilities
4.4.4Lay offs
4.4.5Auto Enrolment
4.4.6 HMRC and financial monitoring evidence
4.4.7Direct Payment Legal Agreements for Direct Payment UserCustomers
4.5 Direct Payment Finance Officer
4.5.1 How the Direct Payment is calculated
4.5.2 How the DPFO makes payments
4.5.3 Changes to Direct Payments
4.5.4 V.A.T
4.5.5 Employers On-Costs for Personal Assistants
4.5.6 Reserves and Contingency Monies
4.5.7 Monitoring of Direct Payments
4.5.8. Regular Auditing Of Direct Payment Accounts
4.5.9. Reviews of Direct Payments Customers
5. Ongoing Direct Payments and Finance
5.1. DPFO Follow up Procedure.
5.2. Recovery of Direct Payments
5.3. Unspent Monies in DP pre-paid card account
5.4. Overpayments by the direct payments finance officer
5.5. Wrongful Use of Direct Payment Monies
6. Termination of Services.
6.1.Customer Terminates Direct Payment Services
6.2Council Terminates Direct Payment Services
1. What are Direct Payments?
1.1.Introduction to Direct Payments
Direct payments have been in use in adult care and support since the mid-1990s and they remain the Government’s preferred mechanism for personalised care and support. They provide independence, choice and control by enabling people to commission their own care and support in order to meet their eligible needs instead of having it provided or arranged directly by the local authority.
Direct payments are monetary payments made to individuals who request to receive them tothem to meet some or all of their eligible care, support needs and some continuing health care needs.
This guidance supersedes the 2009 guidance on direct payments, and reflects the new legislative framework.This policy follows Sections 31, 32 and 33 of the Care Act 2014;The Care and Support (Direct Payments) Regulations 2014 and2014 theand the Care and Support Statutory Guidance.
Direct payments promote independence, choice and inclusion by enabling people to live in their own homes, be fully involved in family and community life, and to engage in work, education and leisure opportunities, by purchasing support, equipment or services they are assessed as needing to meet any agreed outcomes. All outcomes and plans of support need to be agreed by a care practitioner; sometimes this decision is made by a number of people known as a Care Management Team (CMT).
Direct payments can now be used to pay for continuing health needs known as personal health budgets, but since the Local Authority is not responsible for continuing health care arrangements, this policy does not cover such payments, s. see section 3.7.
The Local authority has a duty to provide direct payments as an option to meet an individuals agreed social and health care outcomes with the exception of customers requiring permanent residential care. Customers should beshould be informed of the Direct Payments option but not be forced toforced to accept payments.
There are exceptions where a direct payment can be used to purchase short term residential care (respite) but this can beno more than four weeks in any twelve month period.
Direct payments can also be used by individuals in long time residential care to purchase support to access community based activities.
In accordance with the Children and Families Act 2014 Children with a (special educational need or disability) SEND who are eligible for a direct payment will have their payment made to their parent or guardian up until the age of 16. A young person of 16 or older can opt to have their direct payment paid directly to themselves.
Where there are issues of capacity to consent or there are concerns about the young person’s ability to correctly manage the direct payment the local authority must have a best interest meeting and can insist that an appropriate third party of the young person’s choice is appointed to manage the direct payment on their behalf. (This can be someone other than the parent’si.e.(a managed account or approved third party organisation or individual).
Part 1 – The Legal Framework
1.2. Direct Payment Legislation
The legislative context for direct payments to meet the care needs of adults is set out in the Care Act 2014, Section 117(2C) of the Mental Health Act 1983 (the 1983 Act), the Care and Support (Direct Payments) Regulations 2014 and Chapter 12 of the Care and Support Statutory Guidance (October 2014).
The legislative context for direct payments to meet the needs of children and families is set out inthe Health and Social Care Act 2001 the Children Act 1989, Children and Families Act 2014, The Special Educational Needs (Personal Budgets) Regulations 2014
Under the 2014 , Legislation and Statutory Guidance., local authorities have a duty to provide Direct Payments to all adults, carers and children with specialwith special education needs SENDneeds SEND and disabilities with education health or care plans (EHC) who meet the Council’s eligibility criteria and who request them.
Changes brought in by the(Care Act 2014):
Section 31 of the Care Act specifies the conditions that must be satisfied in order to trigger the local authority duty to provide a direct payment. It relates to adults who have the capacity to request a direct payment.
Section 32deals with those who lack capacity. In general s.31provides that direct payments must be provided if:
- an adult requests direct payments and has capacity to do so – and if they have nominated someone to manage the payments on their behalf, that person agrees to receive the payments;
- the local authority is required to contribute towards meeting the adult’s needs;
- the local authority is satisfied that the adult or nominated person is capable of managing direct payments – by themselves or with help;
- the local authority is satisfied that making direct payments is an appropriate way to meet the needs in question; and
- the provision of direct payments is not prohibited by the regulations, and if the regulations give the authority discretion not to provide direct payments, it exercises that discretion.
A direct payment may not be made unless:
- the local authority is required to contribute towards the costs of meeting the adult’s needs ( the amount must be specified in the person’s personal budget) AND
- the person requests a direct payment to be made to them or to someone who he/she has nominated to receive the direct payment.
The statutory guidance makes it clear that::
"The route to a direct payment is for a person to request one, but the local authority should support the person’s right to make this request by providing information and advice as detailed above. People must not be forced to take a direct payment against their will, but instead be informed of the choices available to them."
It goes on to state:
"… theThe gateway to receiving a direct payment must always be through the request from the person. Local authorities must not force people to take a direct payment against their will, or allow people to be placed in a situation where the direct payment is the only way to receive personalised care and support. However, local authorities are encouraged to prompt people to consider direct payments and how they could be used to meet needs."
The local authority must make payments to the adult or nominated person, subject to the regulations and provided that the following four conditions are all met:
- condition 1: the adult must have capacity to request direct payments, and any person nominated to receive a direct payment on their behalf must agree to doing so (subs.(4));
- condition 2: the local authority is not prohibited by regulations rom making direct payments, and the authority does not exercise its discretion in certain circumstances
- condition 3: the local authority must be satisfied that the adult (or anyone nominated on their behalf) is “capable of managing” a direct payment, either on their own or with help for instance from family members and
- condition 4: the local authority is satisfied that making direct payments (either to the adult or someone nominated) is an appropriate way of meeting the needs for care and support (subs.
The statutory guidance makes clear that all these conditions need to be met in their entirety and a failure in one would result in direct payments being declined.
Direct Payments to Adults who lack mental capacity (Section 32)
This section specifies the conditions that must be satisfied in order to trigger the local authority duty to provide a direct payment. It relates to adults who lack the capacity to request a direct payment. The adult must lack capacity to request direct payments.
Section 32 provides that direct payments must be made if:
- a person authorised under theMental Capacity Actor a suitable person requests direct payments to meet some or all of the adult’s needs;
- the local authority is required to contribute towards meeting the adult’s needs;
- the local authority is satisfied that the authorised person will act in the adult’s best interests;
- the local authority is satisfied that the authorised person is capable of managing direct payments – by themselves or with help;
- the local authority is satisfied that making direct payments to the authorised person is an appropriate way to meet the needs in question; and
- the provision of direct payments is not prohibited by the regulations, and if the regulations give the authority discretion not to provide direct payments, it exercises that discretion.
Direct payments unders.32must be discontinued if the person subsequently gains capacity.
Regulation 9 of the Care and Support (Direct Payment) Regulations 2014 provides that if the gaining of capacity is temporary, the local authority can continue payments to the authorised person if during that period the adult will mange the payments themselves
Authorised Person
The Authority must be satisfied that the authorised person will use the direct payment in the best interests of the adult and that making a direct payment to the authorised person is an appropriate way of meeting the adult’s needs.
An authorised person can be:
- someone who is authorised under theMental Capacity Act 2005as a court appointed Deputy or done under a lasting power of attorney, to make decisions about the adult’s needs for care and support; or
- another person who the local authority and the authorised person agree is a suitable person to receive the direct payments; or
- ifIf there is no person authorised under theMental Capacity Act, a person who the local authority considers is a suitable person to whom to make the payment.
The statutory guidance makes clear that all legal conditions need to be met in their entirety and a failure in one would result in direct payments being declined.
The guidance also explains that where requests for direct payments are accepted, the decision should be recorded in the care and support plan, or support plan. Where refused, the person should be provided with written reasons that explain the decision, and be made aware of how to appeal the decision through the local complaints process.
Regulation 5 of the Care and Support (Direct Payments) Regulations 2014 (SI 2014/2871)sets out steps which a local authority must take in order to be satisfied that making direct payments to an authorised person is an appropriate way to meet the needs in question.
These include consulting and taking into account the views of:
- anyone named by the adult as someone to be consulted on this matter;
- anyone caring for or interested in the adult’s welfare; and
- any person who is authorised under theMental Capacity Act 2005to make decisions about the adult’s needs for care and support; and
It also includes considering the adult’s wishes and feelings, their beliefs and values and other relevant factors. In some cases an enhanced criminal record certificate will also be required.
Use of Direct Payments
The Care and Support (Direct Payment) Regulations 2014 (SI 2014/2871), Regulation 6provides that direct payments can only be used to fund short-term care in a care home.
The guidance, however, points out that people in long-term placements may receive direct payments in relation to non-residential care services. It also confirms that the Government is testing the use of direct payments for long-term residential care at selected sites. The pilots started in the autumn of April 2013 and the aim is to introduce direct payments to fund long-term residential care alongside the introduction of the cap on care costs in the second phase of implementation of the Care Act.
Statutory Guidance -
A direct payment must only be used for the purpose of meeting the needs specified in the care and support plan or support plan. The statutory guidance makes clear that local authorities must be satisfied that the direct payment is being used to meet the care and support needs set out in the care and support plan or support plan, and should therefore have systems in place to “proportionally monitor direct payment usage to ensure effective use of public money”. It goes on to state that:
"Local authorities should not design systems that place a disproportionate reporting burden upon the individual. The reporting system should not clash with the policy intention of direct payments to encourage greater autonomy, flexibility and innovation. For example, people should not be requested to duplicate information or have onerous monitoring requirements placed upon them. Monitoring should be proportionate to the needs to be met and the care package. Thus local authorities should have regard to lowering monitoring requirements for people that have been managing direct payments without issues for a long period.
The local authority must stop making direct payments if any of the conditions inss.31or32are no longer met.
The local authority is permitted to stop making direct payments and to require repayment of direct payments it has already made if there is a breach of any condition imposed by the local authority or if the direct payment is not used to pay for the needs specified in the care and support plan.
Under the new 2014 Care Act regulations the local authority should take steps to support the integration of other forms of public funding, such as personal health budget direct payments as long as the person concerned and all parties agree.
. This guidance has been written to reflect the changes introduced by the Mental Capacity Act 2005, the Health and Social Care Act 2014, and the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2012 . 2012.
From November 2009, the broad effect of these changes was to extend the system of direct payments to include people who lack capacity to consent to the making of direct payments and to remove the exclusions that applied to people who were subject to various provisions of mental health and criminal justice legislation.
Not all social care services are included in direct payments legislation. The legislation provides that the duty to make direct payments applies to:
1The Care Act 2014
2Section 117 of the Mental Health Act 1983
3A service, which local Councils may provide under section 17 of the Children Act 1989 (provision of services for children in need, their families and others).
4A Personal Health Budget approved by the local (clinical commissioning Group) CCG
Under the new Care Act 2014 Guidance and Legislation wherever a person is assessed as needing social care services and continuing health care service, the Council has a duty to make a direct payment in respect of that service, if requested.