5.1.2 Direct Payments |
Contents
1. What are Direct Payments?
Direct payments are to help promote independent living by giving young people (services users) 16-18 years and/or their parents and carers choice, control and flexibility over their care. Direct payments can be used to employ a personal assistant(s) to support children and young people with disabilities or they can be used to purchase support services from an agency.
They are cash in lieu of directly provided care services, to enable people to purchase their own support, either exclusively or in conjunction with directly provided services. They can be used to meet any assessed eligible need (except permanent residential care) covered by the legislation, provided their use is able to achieve the desired outcomes agreed with each service user/young person/parent/carer. They may be used to either employ a personal assistant or used to buy from an agency and can be used to purchase assistance with
- Personal care;
- Short term breaks;
- Transport;
- Involvement in social, leisure, educational and work activities;
- Equipment.
2. Who Can Receive Direct Payments’s?
All disabled adults; disabled young person over 16 years of age and parents/carers of children with a disability who have been assessed with needs should be offered direct payments (and information about DP's) are eligible to receive direct payments as an alternative to directly provided services, or services purchased by Social Services. This therefore covers the full age range and all those with disabilities including physical, mental or learning disabilities who have been assessed as needing a service. Also anyone aged 16 or over with assessed needs in respect of their role as a carer (e.g. Young Carers).
3. Who Cannot Receive Direct Payments
Direct payments are only available to those people who would normally be eligible for a service.
- Some people are excluded from receiving DP's;
- The Community Care Direct Payments Act regulations 1997 excludes certain people who are subject to mental health or criminal justice legislation;
NB: Service users subject to Section 117 aftercare arrangements are not excluded; - The option of Direct Payments is not open to people (including children) who have received compensation for their care;
- They cannot be used to meet health needs, which are the responsibility of the NHS;
- Services for people living in extra care housing schemes;
- Services funded from Supporting People monies (although it may be possible in some circumstances if there are also services provided under Community Care legislation/Children Act legislation that are given as a direct payment).
NB: Direct Payments cannot be used to pay resident close relatives unless there are exceptional circumstances, which would need to be considered on an individual basis.
Eligibility Restrictions
Direct payments may not be made to certain people whose liberty to arrange their care is restricted by certain mental health or criminal justice legislation as follows:
- Patients detained under mental health legislation who are on leave of absence from hospital;
- Conditionally discharged detained patients subject to Home Office restrictions;
- Patients subject to guardianship under mental health legislation and those covered by the new power of supervised discharge introduced by the Mental Health (Patients in the Community) Act 1995;
- People who are receiving any form of after care or community care, which constitutes part of a care programme initiated under a compulsory court order;
- Offender serving a probation or combination order subject to an additional requirement to undergo treatment for a mental health condition or for drug or alcohol dependency;
- Offenders released on licence subject to an additional requirement to undergo treatment for a mental health condition or for drug or alcohol dependency; and
- People subject to equivalent restrictions in Scottish mental health or criminal justice legislation.
Reference should be made to the Regulations for full details of the circumstances in, which the duty to make a direct payment does not apply.
4. Why Should Direct Payments be Offered?
Since April 2003 under section 57 of the Health and Social Care Act 2001 (which repealed the Community Care Direct Payments Act 1996) Local Authorities have had a duty to offer Direct Payments to all eligible service users (see 3.1 for those who are eligible) as an alternative to a directly provided service, following a social care/initial assessment and/or at the point of a review.
They should be offered in lieu of:
- A Community care service within the meaning of section 46 of the NHS and Community Care Act 1990;
- A service under section 2 of The Carers and Disabled Children's Act 2000;
- A service, which they may provide in exercise of functions under section 17A of the 1989 Children Act (provision of services for children in need, their families and others).
NB: Therefore: Direct Payments should be offered and/or discussed at every new assessment and at review.
THE COMMUNITY CARE (DIRECT PAYMENTS) ACT, 1996
Local authorities have a power, not a duty, to make payments available in lieu of services to meet care needs assessed under Section 47, NHS and Community Care Act, 1990. The Children Act 1989 applies, the Carers and Disabled Children Act 2000; and the Carers Equal Opportunities Act 2004 also applies.
The scheme is referred to as Direct Payments.
5. Assessment
Direct payments can only be offered to someone who has been assessed as needing community care services and also meets Dudley CSD criteria for Direct Payments (see Section 6, Criteria for Direct Payments) or who has been assessed under the Framework for Assessment of Children in Need and meets the criteria (see Section 6, Criteria for Direct Payments).
A comprehensive or an initial assessment must be carried out or have been carried with the parent/carer and/or young person. This must include assessment of the parent/carers or young persons ability to choose to have direct payments and decide how they are managed (See below) or in the case of parents with a child with disabilities, that a carers assessment has been carried out and that the parent is willing to manage these payments.
The social worker or nurse must advise the young person or parent/carer of the process and administration of the Direct Payment scheme. The social worker/nurse must establish and record, as part of the assessment, that the young person or parent/carer understands the administrative requirements of the scheme, and will be able to meet them with or without assistance.
If an existing case of a young person or parent/carer wishes to be considered for Direct Payments, a core assessment must be carried out unless this has already been completed. Further information exchange should be arranged between a A4e Independent Living Advisor in order to provide a more informed decision.
Assessment of the young persons or the parent/carers ability to choose and manage direct payments:
For a Local Authority to make direct payments, the person receiving the direct payment must give their consent (young people 16-18 years must be able to give informed consent) and must be willing and able to manage them (alone or with assistance). A4e may be able to assist the young person or parent/carer with this.
The judgement as to whether someone is able to manage should be made on an individual basis, taking into account the views of the young person or parent/carer. Health professionals should be involved in the decision making where appropriate, but this is not primarily a medical decision.
The following questions should be considered during the assessment. (This list is not exhaustive).
- Does the young person or parent/carer understand the nature of direct payments?
- Can the young person express their wishes and feelings?
- Can the young person if aged (16-18 years) or parent/carer express a preference between different types of services?
- Does the young person currently take other important decisions for himself or herself? Unless the parent/carer is going to manage these payments;
- Will the young person or parent/carer be able to keep the necessary records?
- Does the young person or parent/carer understand the legal responsibilities that may arise if he or she becomes an employer and can he or she cope with them?
- Will the young person or parent/carer be able to ensure that he or she receives services he or she has paid for?
- Does the young person have a fluctuating or deteriorating condition, which may affect his or her ability to manage on an ongoing basis? Unless the parent/carer is going to manage these payments and they do not have a condition which would affect their ability to manage.
If the answer to either of the first three questions is "no", then the young person or parent/carer is unlikely to be able to manage Direct Payments. Negative answers to the remaining questions may raise doubts, but consideration should be given to what assistance would enable the young person or parent/carer to manage, rather than automatically assuming that the young person or parent/carer cannot manage.
Where there are issues about the ability of a person to consent, consideration should be given to what is in the best interests of the child/young person. It is important not to disempower. The Easy Guide to Direct payments (Department of Health Guide) is available for more information in this area.
Young people or parents/carers should be encouraged to take responsibility for contingency arrangements. However, if despite these, the care package breaks down, then the Local Authority remains ultimately responsible for arranging the necessary care to meet the assessed needs.
The young person and family should be informed that CRB checks will need to be carried out and what this means for them.
All Direct Payments will be reviewed in line with CIN processes. Where changes to the CIN plan are identified and these include changes to the level of service then change of circumstances and a new CIN plan will be required and will need authorisation by a Head of Service.
Further information is available, see below:
- Information is available for young person or parent/carer in a Department of Health booklet and should be given to young person or parent/carer either by A4e or the Social Workers/Nurses;
- The Local Authority has a Service Level Agreement with A4e to provide full support to service and social workers and nurses. This is aimed at giving whatever assistance is required in order to facilitate Direct Payments to those who choose this option;
- The Head of Service, Children with Disabilities, has overall management responsibility for the agreement with A4e and is happy to advise on issues concerning the scheme.
Useful telephone numbers:
| A4e | 01384 459392 |
| Fax | 01384 243961 |
| Duty Officer, Children with Disabilities | 01384 815813 |
| Team Manager, Children with Disabilities | 01384 815813 |
| Head of Service, Children with Disabilities | 01384 815813 |
Transitional Arrangements
Adult Services must be invited to the last review following 16th birthday and copies of assessment & CIN plan to be forwarded to them.
Any new assessments of need where the young person is 16+ should include a member of Adult Services so that joint assessments can be agreed. Copies of assessment & CIN plan to be forwarded to Adult Services.
Change of circumstances forms to be completed for all young people requiring a service from Adult Services at the young persons18th birthday.
Employment of Personal Assistants
Local Authority Social Care; or Health Care staff; or any paid staff; or voluntary workers; working with or having knowledge of through their work, of parent/carers or young people in receipt of Direct Payments need to ensure that they do not recommend; or introduce either directly, or via a third party; or advise parents/carers of details of anyone who could be employed as a Personal Assistant. This could be seen as a conflict of interest; breach of confidentiality; or leave the authorities and themselves with unhelpful responsibilities or accusations.
6. Criteria for Direct Payments
The legislation permits Local Authorities to offer Direct Payments to persons with parental responsibility for a disabled child, or to 16 and 17 year old disabled young people to enable them to arrange for the provision of services that meet their assessed needs (under Section 17 of the Children Act 1989) rather than rely on direct service provision from the Council. The Carers and Disabled Children's Act 2000 also allows Local Authorities to make Direct Payments to Carers including 16 and 17 year old carers.
These criteria must be met in addition to meeting the Directorate's eligibility criteria for services.
The individual must:
- Be aged 16 or over and have assessed care needs; or
- Have parental responsibility for a disabled child/young person of any age who has assessed needs under Section 17 of the Children Act 1989;
- Have assessed needs in respect of their role as carers to support the child/young person or adult in this role and maintain their own health and well being. This can include carers aged 16 and 17 years;
- Demonstrate that he/she is willing to have Direct Payments and is able to direct how the payments are to be managed, if necessary, through a third party. This means that the young person or parent/carer must be able to show that he/she is able to retain ultimate control over the money given to them by the Directorate because only the individual is legally accountable for the way in which it is spent. However, it does not mean that the individual has to oversee every transaction. The Directorate has an obligation to be sure that anyone managing his or her own care is willing and able to do this, either alone or with assistance;
- Also to note The Community Care (Direct Payments) Regulations 1997 exclude certain people who are subject to mental health or criminal justice legislation from receiving direct payments. See Eligibility Restrictions;
- Direct Payments are not available for people who have received compensation to pay for their care (also see Section 3, Who Cannot Receive Direct Payments);
- Direct Payments are not to be used to meet health needs, which are the responsibility of the NHS.
See Section 3, Who Cannot Receive Direct Payments for full list of those not eligible.
7. Quick Guide to Organising Direct Payments – Aide Memoire
- Child/Young Person meets eligibility criteria for CDT (except those in long term care), or children would meet the criteria for receiving a service under the Children in Need thresholds as used by the Children's Specialist Services Division, District Teams;
- Assessment of need for child/young person (Assessment Framework) and carer assessment completed where this is an existing case complete on an updated initial assessment. Ensure leaflets and booklets provided to young person and/or parent/carer;
- Child/Young Person meets Dudley eligibility criteria for Direct Payments (See Section 6, Criteria for Direct Payments);
- Parent/carer or young person assessed for ability to choose and manage direct payments (with or without help) (see 2.5), also the requirements for employing personal assistants, including the need for CRB checks are able to be met;
- New or updated assessments to be discussed with team manager - gain agreement to send to Head of Service CWD;
- Complete Care Plan and Costing Form. (Appendix 8, Child in Need Plan following Initial Assessment);
- Contact A4e regarding visit to young person or parent/carer to introduce support scheme, agree aims/benefits of direct payments. Follow up with referral (Appendix 7, Direct Payments Support Services Referral Form) and copies of above. Send to Mandy Gardiner at Queens Cross for her to log onto system and forward to A4e;
- If the young person is 17 years plus, a question needs to be asked whether they meet the criteria for ILF funding? Liaise with ILF advisors who can assist, tel 0845 601 8815. This is where packages exceeding £200 per week;
- Complete Hazard ID (Appendix 9, Social Services Hazard Identification Form). Copy to young person or parent/carer. Referral to be sent to Moving and Handling Team if necessary, tel: 01384 813090, plus any training needs identified must be discussed;
- Agreements made on contract (Appendix 1, Direct Payments Contract) and signed;
- Authorisation to make direct payment form (Appendix 2, Authorisation to make Direct Payment Form ) completed firstly to children and families admin then forwarded to direct payment admin at Queens Cross, tel 01384 813465;
- Care Account set up and direct payment banking form (Appendix 4, Change of Circumstances and Appendix 5, Direct Payment Banking Details) completed. To be sent to children and families admin then to Mandy Gardiner at Queens Cross, tel 01384 813465;
- Job descriptions, tasks, person specifications, adverts, interviews prepared between young person or parents/carers and A4e. Note once personal assistant identified complete CRB check - forwarded to Human Resources (employment cannot commence until satisfaction checks received - families need to be advised of this);
- Review in line with CIN process and any changes to be authorised by Heads of Service and changes notified to children and families admin and adult admin/finance at Queens Cross.
8. Referral Flowchart
9. Direct Payments – Consent
Previous guidance advised that service users had to be 'able and willing' to consent and manage a direct payment (with assistance if necessary). This excluded a large group of service users from the benefits of direct payments by virtue of their disability (eg. those with a learning disability or dementia). More recent guidance on consent was issued by the Department of Health in September 2003 and in March 2004 'Direct Choices What Councils Need to Make Direct Payments Happen for People with Learning Disabilities' advised Councils and workers to take a more flexible approach to the issue of determining consent, which is summarised below. Social workers/nurses need to think of this advice in relation to parents of disabled children.
10. Advice/Good Practice
When offering a direct payment:
- Explain direct payments as simply and fully as possible, use appropriate symbols;
- Give people time and support (parents/carers/young people) to consider the options;
- Consult fully;
- Provide information that is understandable and relevant;
- Provide information about existing services;
- Take an individual approach to consent and the suitability of direct payments;
- Consider parents/carers/young persons own views and experiences;
- Ensure equality of access to direct payments;
Remember:
- Direct payments are a way of offering choice. They are simply a mechanism, which can support parents/carers/young people move towards independent living;
- Don't make assumptions about an individual;
- Start from the point of view that most parents/carers/young people can consent to a direct payment;
- Consider the support someone may need to take on and manage a direct payment. The ability to consent is separate from the ability to manage. People are entitled to as much help as they need to manage their direct payment;
- Put the individual at the heart of the process;
- Involve others;
- Getting consent may be part of a continuing discussion rather than a single event;
- Direct payments may not be right for everyone - don't pressure people into accepting a direct payment, but do ensure that everyone has the information, time and support they need to make the choice that is right for them;
- Remember, anyone can indicate sadness, happiness or indifference to their situation. If someone could benefit from the choice, control and flexibility of direct payments.
11. Support Options
Parents/carers/young people are entitled to have help in managing their Direct Payment, both in securing the service they need and support in detailing with the financial arrangements. There is no restriction placed on the amount and type of help a person may receive with managing their Direct Payments. According to Department of Health guidance the ability to direct is more important than the ability to manage.
The following support arrangements are currently available to Dudley Service Users, particularly those who wish to employ personal assistants rather than use any agency.
11.1Standard Support Arrangements
These are provided by our support agency A4e. Their Independent Living Advisors (ILAs) can assist with opening a bank account, determining staff costings, recruitment and employment issues (including contracts and health and safety). They offer a payroll service and can assist with the completion of quarterly financial returns to the Directorate. In this option the Direct Payment recipient directs the personal assistant themselves unaided. If the recipient chooses to employ personal assistants rather than use an agency, they are liable for all employment and health and safety matters. They are also accountable to the local authority for how the money is spent.
11.2 Extra Support Arrangements
In some circumstances, ILAs can provide additional support with writing cheques and ensuring the Direct Payments account balances. The Direct Payment recipient will direct the personal assistant themselves and is still in charge of their own finances. All other liabilities and accountability remain unchanged.
11.3 Third Party Supported Account by A4e
This is a higher level of support where A4e receive and manage payments on behalf of the Direct Payments recipient but the Direct Payment recipient still directs his or her own care package or their child's package. The recipient will still be involved with the recruitment of staff, but only has to sign time sheets. A4e take responsibility for paying staff and all financial matters. The direct payments recipient is still the employer and responsible for all employment and health and safety matters. Both A4e and the Direct Payments recipient are jointly accountable to the local authority for how the money is spent.
11.4 Third Party Managed Account
This is where the direct payment recipient nominates a third party (eg. a relative or friend) to help manage the Direct Payment. The Direct Payment recipient still has control over how services are delivered. The nominee (relative or friend) may have some joint liability with the Direct Payment recipient for employment/health and safety matters.
Remember, you need to be confident that the third party chosen by the Direct Payment recipient will act in the service users best interest.
PLEASE NOTE: The relative or friend who manages the Direct Payment CANNOT also be the personal assistant (in other words the same person cannot manage the Direct Payment and receive it).
11.5 Enduring Power of Attorney
A person with an EPA registered with the Public Trust Office can manage the Direct Payment, providing consent to the Direct Payment has been given whilst the person receiving the payment still has the capacity to do so. Payments to the attorney (ie. the EPA holder) can then continue on the recipient's behalf.
NB: If circumstances change, the person with enduring power of attorney cannot consent to any changes in the Direct Payment on the recipient's behalf.
11.6 Independent Living Trust/User Controlled Trusts
This is where trustees are chosen by the recipient to manage the direct payment. The service user still has to consent to the Direct Payment. The trust can consist of relatives, peers, advocates and professionals (circles of support). They are constituted with trust deeds, which set out rules and regulations about financial arrangements and have the legal power to execute decisions based on the recipient's choice. The Trust would take on the responsibility for all employment and health and safety matters. They would also be financially accountable to the Local Authority. The Direct Payments Co-ordinators can give further advice and support where this is being considered.
Appendix 1: Direct Payments Contract
Click here to view Direct Payment Contract
Appendix 2: Authorisation to Make Direct Payment
Click here to view Authorisation Form
Appendix 3: Guidance for Staff re Start Up Costs if Personal Assistant(s) to be Recruited
The following amounts can be allowed in start up costs only if required
| £240 | for initial advertising |
| £84 | for employers' liability insurance |
| £20 | per personal assistant for moving and handling training if necessary and not available free of charge via HR. |
Appendix 4: Change of Circumstances (Change to Direct Payments)
Click here to view Change of Circumstances form
Appendix 5: Direct Payment Banking Details
Click here to view Direct Payment Banking Details Form
Appendix 6: Quarterly Returns
Click here to view Quarterly Returns
Appendix 7: Referral Form
Click here to view Referral form
Appendix 8: Child in Need Plan Following Initial Assessment/Care Plan
Click here to view Child in Need Plan Following Initial Assessment/ Care Plan
Appendix 9: Social Services Hazard Identification Form
Click here to view Social Services Hazard Identification Form
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