DoH, Care and Support Statutory Guidance - Issued under the Care Act 2014
AMENDMENTIn May 2017, this chapter was extensively updated and should be re-read throughout.
1. What are Direct Payments?
A Direct Payment is money given to the families or carers of children aged up to 18 yrs or to young people aged over 16 (or their nominated person) who have a disability. It is given by the authority to enable them to buy in support that has been assessed as being needed, instead of the authority providing that support through their own services. Direct Payments do not affect the recipient's wealth benefits.
Direct Payments can be made in lieu of special educational, health care and/or social care provisions.
Local authorities must offer the option of Direct Payments in place of services currently being received. For both education and social care the local authority must be satisfied that the person who receives the Direct Payments is able to manage the direct payments either by themselves or with whatever help the authority thinks the applicant or nominated person will be able to access; will use them in an appropriate way to meet the needs in question and that they will act in the best interests of the child or young person. In Luton, if this is a concern, or if the recipient struggles to manage this, there is the option to consider a managed account via the Disability Resource Centre.
Regulations governing the use of Direct Payments for special educational provision place a number of additional requirements on both local authorities and recipient before a Direct Payment can be agreed. These include requirements to consider the impact on other service users and value for money. Also to seek consultation and agreement from educational establishments where a service funded by a Direct Payment is delivered on their premises.
Direct Payments for health care require the agreement of eligibility and the assessment of health needs in a Care Plan between the Integrated Care Board and the recipient.
2. Who can get Direct Payments?
Those who have been assessed as meeting the criteria for disabled children's services and parents or carers of children and young people who have Education, Health and Care Plans have the right to request a Personal Budget, which may contain elements of education, social care and health funding, and may be delivered in full or part by way of Direct Payments. Under the Children and Families Act 2014, this covers those aged 0-25 having special educational needs and disabilities.
No-one can be forced to have a direct payment.
Direct payments can also be made to a willing and appropriate person on a disabled person's behalf if they lack the mental capacity to agree to and manage direct payments themselves. In most cases for children and young people under the age of 18 with disabilities, this would be the parents or carers.
Direct payments cannot be used to pay for services from a spouse, partner or a close relative living in the household unless the local authority consider it is necessary to do so. However, a direct payment can be used to employ a relative if they are not living in the household Providing the local authority are satisfied that the needs of the individual subject to the direct payments will be fully met and it is in their best interest.
3. How Often are Direct Payments Made?
Direct Payments are paid into a bank or building society account specifically set up for this purpose, on a weekly or four weekly basis (2 weeks in arrears and 2 weeks in advance). If the direct payment is assessed as being only needed or to increase at key times e.g. school holidays, then either a one-off payment will be made or payments will be adjusted accordingly.
4. What is the Process?
The arrangements for Direct Payments will be included in the child's/young person's Education, Health and Care Plan, following an Education, Health and Care Needs Assessment. See Children and Young People Aged 0-25 with Special Educational Needs and Disabilities Procedure.
Or will be included in their Child in Need Plan if only being used for short breaks.
5. Direct Payments Can be Spent on Employing a Personal Assistant (PA)
- To take the young person/child into the community to access an activity, support inclusion, going to a club etc;
- To work with the child directly within the home, to give parents and siblings a break;
- To provide personal care to the child/young person in lieu of agency;
- To stay overnight in the family home to give respite to parents;
- Or a registered childminder or child home carer (for children aged under 8).
6. Direct Payments Can also be Spent On
- Using an approved agency to provide direct care to meet your child/family's needs;
- After school clubs and holiday play schemes for your disabled child;
- Residential overnight breaks for your disabled child;
- By agreement with the Team Manager for direct payments, any service which meets your assessed need for a short break;
- Special educational provision specified in an Education, Health and Care Plan.
7. Hospital Stays
It could well be that those in receipt of Direct Payments require stays in hospital. This would not necessarily mean that the Direct Payments should cease or be suspended. Guidance advises that consideration should be given by the local authority, the carer, the recipient and NHS Trust to as to how the payments might be used to meet non-health needs, for example, the recipient may prefer some personal care tasks to be undertaken by the carer rather than hospital staff. However, the personal care and medical input need to be tailored so as not to interfere with the medical treatment. Also consideration needs to made to ensure that the existing employment arrangements can be maintained, for example where terminating or suspending the carer's employment may lead to a delay of continuity of care and a delay in discharge.In instances where the authorised or nominated person requires hospital treatment, the local authority must conduct an urgent review to ensure the recipient continues to receive the care and support they need. This might include the duties to be carried out by a temporary nominated person, or through short-term authority arranged care/support.
8. Direct Payments Can Not be Spent On
- Employing someone without satisfactory Disclosure and Barring Service and CPR checks or references, or someone subject to a drug or alcohol treatment requirement, youth rehabilitation order or released on licence;
- Permanent residential accommodation, though they can be used for occasional short breaks, if the local authority agrees, for up to 120 days in any 12 month period. (Note: where two periods of short term care are 4 weeks or less apart, then the cumulative total of the stays should be added and not exceed 4 weeks if the stay is to be funded by Direct Payments).
9. What are the Benefits of Direct Payments?
Direct Payments allow parents and young people greater choice flexibility and control, to employ their own workers at times convenient to them and in the way they wish, to provide an individual service to meet their needs. Payments made do not affect welfare benefits.
10. Decisions Not to Make Direct Payments
Where the local authority decides not to make Direct Payments it must inform the applicant in writing of its decision and reasons in a format that is accessible to them and in line with the Data Protection Act. It must also advise of their right to request a review of the decision.
11. Monitoring and Review of Direct Payments
The local authority must monitor and review the use of Direct Payments by the recipient at least once within the first three months of Direct Payments being made, and when conducting a review or a re-assessment of an Education, Health and Care Plan. In addition, a recipient may make a request for the local authority to review the making and use of Direct Payments and the local authority must then consider whether to carry out a review.
When carrying out a review, the local authority must consider whether:
- It should continue to secure the agreed provision by means of Direct Payments;
- The Direct Payments have been used effectively in order to meet the needs assessed for the individual;
- The amount of direct payments continues to be in line to meet the needs assessed for the individual and remains sufficient to secure the agreed provision;
- The recipient has complied with their obligations on the use of the Direct Payment.
Following a review the local authority may:
- Substitute the person receiving the Direct Payments with a nominee, the child's parent or the young person, as appropriate;
- Increase, maintain or reduce the amount of Direct Payments;
- Require the recipient to comply with either or both of the following conditions:
- Not to secure a service from a particular person;
- To provide such information as the local authority considers necessary.
- Stop making Direct Payments.
(See also Hospital Stays).
12. Reducing the Amount of Direct Payments
Where the local authority decides to reduce the amount of Direct Payments, it must provide reasonable notice to the recipient, and it must set out in the notice the reasons for its decision.
The local authority must reconsider its decision, where requested to do so by the recipient, but is not required to undertake more than one reconsideration of a decision. When conducting its reconsideration, the local authority must consider the representations made by the recipient (and where the recipient is a nominee, any representations made by the child's parent or the young person) and must then provide written reasons to the recipient (and to the child's parent or young person, where the recipient is a nominee) of its decision following the reconsideration. The local authority may reduce Direct Payments following reasonable notice despite the fact that a request for reconsideration has been made.
13. Repayment and Recovery of Direct Payments
The local authority may require the recipient to repay part or all of the direct payments, where:
- The circumstances of the child or young person have changed in a manner which has an impact on the appropriateness of the agreed provision;
- All or part of the Direct Payments have not been used to secure the agreed provision;
- Theft, fraud or another offence may have occurred in connection with the Direct Payments;
- The service package has cease whether that be the agreed proposed end date or by mutual agreement with all parties.
It must give notice in writing to the recipient, setting out the reasons for the decision, the amount to be repaid and a reasonable timescale within which the amount must be repaid.
The local authority must reconsider its decision where requested to do so by the recipient (but is not required to undertake more than one reconsideration of a decision). When conducting its reconsideration, the local authority must consider the representations made by the recipient (and where the recipient is a nominee, any representations made by the child's parent or young person) and must then provide written reasons of its decision following the reconsideration to the recipient (and to the child's parent or young person, where the recipient is a nominee).
The local authority may only seek repayment of any portion of the Direct Payments that has not already been spent on the agreed provision or the value relating to theft, fraud or misuse.
14. Ceasing Direct Payments
The local authority must stop making Direct Payments if:
- The child or young person moves out of the local authority's area of responsibility;
- The child or young person has died;
- The recipient has notified the local authority in writing that he or she no longer consents to receive the Direct Payments;
- The recipient ceases to be a person to whom a Direct Payments may be made;
- Following a review, it appears to the local authority that:
- The recipient is not using the payment to secure the agreed provision;
- The agreed provision can no longer be secured by means of Direct Payments.
- At any point the local authority becomes aware that the making of Direct Payments is:
- Having an adverse impact on other services which the local authority provides or arranges for children and young people with an Education, Health and Care Plan which the authority maintains; or
- No longer compatible with the authority's efficient use of its resources.
- It has taken reasonable steps to ascertain whether the young person consents to Direct Payments and the young person has not notified the local authority of their consent.
Where the local authority decides to stop making Direct Payments, the local authority must first give notice in writing to the recipient setting out the reasons for its decision.The local authority must reconsider its decision where requested to do so by the recipient (but is not required to undertake more than one reconsideration of a decision). When conducting its reconsideration, the local authority must consider the representations made by the recipient (and where the recipient is a nominee, any representations made by the child's parent or young person) and must then provide written reasons of its decision following the reconsideration to the recipient (and to the child's parent or young person, where the recipient is a nominee).