CQC We and I Statements
Theme 1 – Working with People: Assessing needs
We maximise the effectiveness of people’s care and treatment by assessing and reviewing their health, care, wellbeing and communication needs with them.
I have care and support that is coordinated, and everyone works well together and with me.
I have care and support that enables me to live as I want to, seeing me as a unique person with skills, strengths and goals.
MANCHESTER SPECIFIC INFORMATION
June 2023: This chapter has been updated to include information from Improving Directing Payments Oversight published by the Local Government Association.
- 1. Introduction
- 2. Making Direct Payments Available
- 3. Steps to Take Following a Request to Receive a Direct Payment
- 4. Assessing Mental Capacity
- 5. Consideration of the Request
- 6. Managing Direct Payments
- 7. Paying Family Members
- 8. Short Term Stay in a Care Home
- 9. Long Term Stay in a Care Home
- 10. Becoming an Employer
- 11. Direct Payments and Hospital Stays
- 12. Direct Payments for Local Authority Services
- 13. Direct Payments Using Pre-paid or Pre-payment Cards
- 14. Coordinating Direct Payments
- 15. Reviewing Direct Payments
- 16. Ending Direct Payments
- 17. Reasons for Discontinuing Direct Payments
- 18. Discontinuing Direct Payments and Mental Capacity
- 19. How to Discontinue Direct Payments
- 20. Further Reading
- Appendix 1: Influencing the Success of Direct payments
Direct payments are financial payments made to people who ask to receive one, to meet some or all of their eligible care and support needs (see Eligibility chapter). They were set up under the Care Act 2014. They are the preferred means of paying for personalised care and support and allow people to commission their own care and support, therefore promoting their independence, choice and control. Adults should be encouraged to take ownership of their care planning and should be free to choose how their needs are met, whether through local authority or third party provision, by direct payments or a combination of the three approaches (see Personal Budgets chapter).
For direct payments to have the maximum impact, the processes involved in administering and monitoring them should be kept to a minimum whilst still making sure the local authority meets its legal requirements. These processes should not restrict choice or suppress creative care and support interventions by requiring that the adult’s needs are met by a particular provider and should not place unnecessary burdens on them to provide information to the local authority. An effective monitoring process should also go beyond just financial monitoring and should include aspects such as identifying wider risks and issues, for example non-payment of tax and providing employers’ liability insurance where this is appropriate.
The local authority should also make sure that adults are given relevant and timely information about direct payments, so they can decide whether to request such a payment and, if they do, that they are supported to use and manage the payment appropriately.
The person should request a direct payment, but the local authority should support the person’s right to make this request by providing information and advice as outlined above. People should not be forced to take a direct payment against their will, but should be informed of the choices available to them.
Key findings from the Improving Directing Payments Oversight (Local Government Association) notes key areas of concern are:
- initial information for those using direct payments;
- how a personal budget is set, including a fair contribution, determining the direct payment;
- the level of flexibility around how a direct payment can be used;
- accounting for the money including contingency;
- reasonable expectations of those actually using or organising direct payments including family members, recognising that they are often employers;
- having a supportive culture that sees direct payments as a positive option and written and verbal communication that reflects this;
- initial set up time;
- oversight of direct payments in a way which values co-production.
Local authorities should keep these findings in mind when working with people requesting and receiving direct payments.
2. Making Direct Payments Available
The availability of direct payments should be covered by the information and advice service that all local authorities are required to provide (see Information and Advice chapter). This should set out:
- what direct payments are;
- how to request one including the use of a nominated person or an authorised person to manage the payment;
- explanation of the direct payment agreement and how the local authority monitors the use of the direct payment;
- the responsibilities involved in managing a direct payment and being an employer;
- making arrangements with social care providers;
- signposting to any local organisations and the local authority’s own internal support, who offer support to direct payment holders, and giving information on local providers;
- case studies and evidence of how direct payments have been used locally to meet needs innovatively.
This will allow people to be fully aware about what direct payments are and whether they might be of interest to them. The local authority must also explain to people which type of needs could be met by direct payments during the support planning process.
Local authorities have a crucial role to play in promoting the use of direct payments, and enabling people to make requests to receive direct payments in an efficient way. However, the 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 quality of the initial information given to people enquiring about direct payments was an area of concern noted by the LGA: see Key findings from the Improving Directing Payments Oversight.
3. Steps to Take Following a Request to Receive a Direct Payment
Most requests to receive a direct payment will occur during the support planning stage, as this is when the local authority must inform the person of their needs that could be met through direct payments. However, local authorities must consider requests for direct payments at any time, and have clear and quick processes in place to respond to such requests. For example, an adult may request a direct payment before a planned review. In these cases, the local authority should assess the request in the same way as a request made during care planning. In practice, it may be convenient to consider the request at the same time as a review of the support plan. In these cases, the review should be brought forward so as not to delay the consideration of the direct payment request (see Review of Support Plans chapter).
4. Assessing Mental Capacity
See also Mental Capacity chapter
The following considerations should be made when assessing a person’s capacity to make a decision:
- 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?
Under the Mental Capacity Act 2005, a person lacks capacity in relation to a matter if, at the time, they are unable to make a decision in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
Assessments of capacity must always be made on a case by case basis, in relation to the specific decision to be made.
Consideration should also be given to whether capacity is constant or likely to fluctuate. Where it is clear that a person has fluctuating capacity, or is likely to have, this should be covered in the support plan which details the steps to take where capacity fluctuates. The Care and Support (Direct Payments) Regulations 2014 allow for direct payments to continue to be made in cases of fluctuating capacity (see Section 16, Terminating Direct Payments).
4.1 Adults with mental capacity
Where the local authority is satisfied that the person has mental capacity to make a request for direct payments to cover some or all of their care and support needs, it must consider each of the four conditions in the Care Act. These conditions all need to be met; a failure in one would result in the request to receive a direct payment being refused. The conditions are:
- the adult has capacity to make the request, and where there is a nominated person, that person agrees to receive the payments;
- the local authority is not prevented from meeting the adult’s needs by making direct payments to the adult or nominated person;
- the local authority is satisfied that the adult or nominated person is capable of managing direct payments either by themself, or with whatever help the authority thinks they 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 their care and support needs.
The authority must clarify at the earliest stage possible where the request originates from. Where a nominated person has been requested to receive the direct payment, the authority should involve them as appropriate in the support planning process, such as the development of the support plan, as long as the person with support needs agrees to this. Where the person does not specifically request this involvement, the local authority should consider whether to encourage the person to make that request. During this process, the nominated person should receive information regarding the local authority’s direct payments processes, as well as information and advice on using and managing the direct payment, so that the nominated person understands their legal responsibilities as the direct payment recipient to act in the best interests of the person requiring care and support (see also Section 10, Becoming an Employer and Direct Payments: Nominated and Authorised Persons chapter).
4.2 Adults who lack mental capacity
In cases where the adult in need of care and support has been assessed as lacking capacity to request a direct payment, an authorised person can request the direct payment on the adult’s behalf. In these cases, the local authority must satisfy itself that five conditions are met in full. Failure to meet any of the conditions results in the request being declined. The conditions are:
- where the person is not authorised under the Mental Capacity Act 2005 but there is at least one person who is so authorised, that the person who is authorised supports the person’s request;
- the local authority is not prevented by regulations from meeting the adult’s needs by making direct payments to the authorised person. If regulations give the local authority discretion as to whether to meet the adult’s needs by making direct payments to the authorised person, it chooses not to use that discretion;
- the local authority is satisfied that the authorised person will act in the adult’s best interests in arranging for the provision of the care and support for which the direct payments would be used;
- the local authority is satisfied that the authorised person is capable of managing the direct payment by themself or with whatever help the authority thinks they will be able to access;
- the local authority is satisfied that making direct payments to the authorised person is an appropriate way to meet the care and support needs of the person in question.
5. Consideration of the Request
After considering the suitability of the person requesting the direct payment as per the conditions in the Care Act, the local authority must decide whether to provide the person with a direct payment. When accepted the decision should be recorded in the adult and carer’s support plans. The person who has been successful in their application for a direct payment is sometimes known as the direct payment recipient. Where refused, the person or person making the request should be provided with written reasons that explain the decision and made aware of how to appeal the decision through the local authority’s complaints process (see Complaints chapter).
Under the Care Act, one of the conditions to be met is that the direct payment is an appropriate way to meet the person’s needs (or, in respect of aftercare services, an appropriate way to meet its duty under section 117 of the Mental Health Act 1983). However, local authorities must not use this condition to randomly decline a request for a direct payment. For example, there may be instances where a person has to receive services as a condition of mental health legislation (for example a community treatment order or leave of absence from hospital under the Mental Health Act). In such cases, although the person has to receive services rather than choosing to ask for services, it may still be appropriate to give them the responsibility of meeting their needs via a direct payment, if this is what is requested. In all cases, the local authority should decide whether direct payments are an appropriate way to meet most of the person’s care and support needs.
However, there may be cases where a direct payment is not appropriate to meet needs. The regulations state that direct payments cannot be made to adults for a drug or alcohol treatment programme as a result of a court order or similar scheme.
As the person or nominated person must be able to manage the direct payment by themself, the local authority has a duty to make sure this support is available. 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. Consideration should also be given to involving a specialist assessor in deciding on care and support requirements, particularly if one was used during the assessment process (see Assessment chapter). In all cases, consideration of the request should be concluded in as timely a way as possible.
In all cases, consideration of the request should be concluded in as timely a manner as possible. When a request for a direct payment is declined, the adult in need of care and support, and any other person involved in the request (that is a nominated or authorised person), should (subject to Data Protection Act 2018 requirements) receive the reasons in a format that is accessible to them (see Data Protection: Legislation and Guidance chapter). This should set 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 undertaken 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.
When a request for a direct payment is refused, the adult in need of care and support, or any nominated or authorised person, should receive the reasons in a format that is accessible to them. This should set out which of the conditions in the Care Act have not been met, the reasons why they have not been met and what the person may need to do in the future to be successful. This stage should be completed as quickly as is reasonably possible.
Where the request is refused, the local authority should continue the support planning process so that it can work towards agreeing with the person how best to meet their needs without the use of direct payments (see Support Planning chapter).
6. Managing Direct Payments
The local authority must be satisfied that the direct payment is being used to meet the care and support needs set out in the support plan and should therefore have systems in place to proportionally monitor direct payment use.
The Care and Support (Direct Payments) Regulations 2014 set out that the local authority must review the direct payments first within six months and thereafter every twelve months. It must not ask for information to be provided more often and in more detail than is reasonably required for the local authority to know it is still an appropriate way of meeting the person’s care and support needs.
Local authorities should not design systems that place a disproportionate reporting burden on the person. The reporting system should not be in conflict with the intention of direct payments encouraging independence, flexibility and innovation. For example, people should not be requested to duplicate information or have time-consuming monitoring requirements. Monitoring should be proportionate to the needs to be met and the care package.
The amount of the direct payment should be taken from the personal budget (see Personal Budgets chapter) as set out in the support plan (see Support Planning chapter) and, therefore, must be an amount which is enough to meet the person’s eligible needs. The direct payment amount will reflect whether the person is required to make any financial contribution or is requesting a direct payment for only a part of their care and support requirements. The local authority cannot require financial contributions to a direct payment for aftercare services under Section 117 of the Mental Health Act 1983; these must be provided without charge.
The amount of the personal budget and the contribution deciding the direct payment was an area of concern noted by the LGA: see Key findings from the Improving Directing Payments Oversight.
It is ultimately for authorities to decide whether payments are made on a gross or net basis in consultation with other relevant agencies. However, local authorities who provide gross direct payments should consider the benefits of moving to net payments as these reduce transaction and process costs for both the local authority and the person receiving the direct payment.
The local authority should consider whether there will be costs such as recruitment costs and Employers’ National Insurance Contributions. If so, their amount must be included in the personal budget (and therefore the direct payment). The local authority can include one off payments within the direct payment to cover these factors, and commission support services such as brokerage, payroll and employment advice as part of their general direct payment offer.
Where a person who is receiving a direct payment uses it to employ a personal assistant (PA) or other staff, the local authority should ensure that there are clear plans in place of how their care and support needs will be met in the event of the PA being absent, for example due to sickness, maternity or holiday. Local authorities still have a duty to ensure needs are being met, even if the person makes their own arrangements through the direct payment, so other plans may be needed. Where appropriate, these should be detailed in the support plan.
Specific information should also be given to people about the requirements to have plans in place for redundancy payments due to circumstances such as moving home, a change in care and support needs, or the result of the death of the direct payment holder. If the person meets their needs by directly employing someone, they will be responsible for all costs of employment including redundancy payments. This should be made clear to people as part of the information and advice process before they decide whether to request a direct payment. The local authority must ensure that the direct payment is enough to meet these costs, if it is appropriate for the adult to meet their needs by employing someone.
Normally, if someone dies any employment liabilities are met by the adult’s estate but with direct payments local authorities and adults are able to develop their own arrangements for dealing with this issue. This could include using any unspent direct payment to contribute to any redundancy costs, having insurance in place that covers redundancy or the local authority agreeing to cover redundancy payments through the direct payment amount.
Whatever arrangements are made, it is important that the local authority and direct payment holder are both clear as to their responsibilities about this, in order to avoid any disputes at a sensitive time for family and carers. Decisions made should be recorded in support plans.
Local authorities should also consider how to recover any money from unspent direct payment, if the recipient dies. For example, if someone wishes to pay an agency in advance for its services, the local authority should bear in mind it may be difficult to recover money paid for services that were not in fact delivered. In such circumstances, the local authority should also consider that, before their death, the direct payment recipient may have incurred costs that should legitimately be paid for using the direct payments (for example, they received care and support services which had not been paid at the time of their death). The local authority may need to consider any redundancy costs payable to personal assistants and be prepared to provide advice on how these might be met. As with other costs the personal budget must be enough to meet the person’s needs, including the provision of any redundancy costs.
Local authorities should ensure all direct payment recipients are supported and given information in regards to having the correct insurance cover in place. Direct payments recipients should be given support to understand the benefits that insurance cover can provide, and the direct payment should therefore include an amount to cover the cost of employers’ liability insurance and any other insurance that is required in order that the adult can meet their needs in the ways specified in the care plan.
The local authority must also consider where the direct payment can be integrated with other types of public funding, such as personal health budget direct payments. In such circumstances, the local authority should work with partners to combine the payments, as long as the person and all parties agree. For example, the local authority could agree with the NHS that social care and health direct payments are combined and that monitoring is performed solely by one organisation, reporting to the other as appropriate. This will avoid the adult needing to have a number of different bank accounts and having to supply similar monitoring information to different agencies to account for spending direct payments, whilst still enabling them to meet their statutory responsibilities.
7. Paying Family Members
Direct payments are designed to be used flexibly and innovatively and no unreasonable restriction should be placed on their use, as long as they are being used to meet the person’s eligible care and support needs.
The Care and Support (Direct Payments) Regulations (2014) do not allow the direct payment to be used to pay for care from a close family member living in the same household, except where the local authority considers it is necessary to do so and the payment will be able to cover either:
- the cost of meeting the adult’s needs; or
- the cost of providing administrative and management support / services for the person to whom the direct payments are made.
The distinction between ‘care’ and ‘administration / management’ allows an adult to pay a close family member living in the same household to provide management and / or administrative support to the direct payment holder where the local authority believes this is necessary. This is intended to reflect the fact that in some cases, especially where the person has multiple complex needs, the direct payment amount may be substantial.
The management and administration of a large payment, along with organising care and support, can be complicated and time consuming. Family members doing this can be paid a proportion of the direct payment, similar to what many direct payment holders pay to third-party support organisations, as long as the local authority agrees.
This is not meant to replace someone’s income and people interested in this option should be told of tax and employment implications, any impacts upon other state benefits and given (or signposted) to information and advice to help them decide (see Information and Advice chapter).
The local authority should be satisfied that it is necessary to make the payment to the family member to provide this service and that the direct payment will only be used for administration and management of the payment. The circumstances and payment amount should be decided and agreed with the adult requiring care and support, the family member, the local authority and any other person (for example an advocate), with the local authority taking steps to ensure all parties agree.
These decisions should be recorded in the care plan and include the amount of the payments, their frequency and the activities that are covered. This arrangement should also be taken into account during allocation of the personal budget so the amount remains sufficient to meet the person’s needs.
Local authorities need to have in place an agreement with all parties about what steps to take if there is a dispute regarding the management of the payment by a household family member. This will be especially relevant where the person providing administrative and management is also the nominated or authorised direct payment recipient.
It would not be appropriate to allow this where there is a risk that the direct payment may be abused or there are other sensitivities such as potential safeguarding issues (see Adult Safeguarding chapter).
8. Short Term Stay in a Care Home
Direct payments cannot be used to pay for adults to live in long term care home placements. They can, however, be made to enable adults to pay for short stays in care homes, provided that any stay does not exceed a period of four consecutive weeks in any 12 month period. This can be used to provide a respite break for a carer, for example.
When the interim period between two stays in care homes is less than four weeks, the two stays should be added together and should also not exceed four weeks if it is to be paid for with direct payments. On the other hand, if two stays in care homes are more than four weeks apart they should not be added together.
Once a direct payment recipient has had four consecutive weeks in care homes or two or more periods separated by less than four weeks that added together total four weeks, they cannot use their direct payments to pay for any more care home services until 12 months have passed (from the start of the four week period). On the other hand, as long as each stay is less than four weeks and there is an interim period of at least four weeks between two or more stays which added together exceed four weeks, the person may use their direct payments to pay for residential breaks throughout the year.
People can receive additional weeks in a care home once they have reached the four week maximum. They cannot purchase the stay using their direct payments, but if the local authority and the person agrees that a longer stay is needed, it can still arrange and fund stays for the person. There is no restriction on the length of time for which the local authority may arrange such accommodation for someone (see Charging and Financial Assessment chapter for guidance on choice of accommodation).
The time limit is to promote people’s independence and to encourage them to remain at home rather than moving into a long term care home placement. Where a person is constantly using the direct payment to pay for a short term care home stays, the local authority should consider whether to conduct a review of the support plan to make sure it is still meeting the adult’s needs.
9. Long Term Stay in a Care Home
Adults who are living in care homes may receive direct payments in relation to non-residential care services. For example, they may have temporary access to direct payments to try out independent living arrangements before making a commitment to moving out of their care home. Direct payments can also be used by adults living in care homes to take part in day time activities. This can be particularly empowering for young people in transition (see Transition to Adult Care and Support chapter).
Direct payments cannot be used to pay for long term stays in a care home.
10. Becoming an Employer
Local authorities should give clear advice about the responsibilities involved in managing direct payments, and whether the person receiving direct payments needs to register with HM Revenue and Customs (HMRC) as an employer.
Becoming an employer holds certain responsibilities and duties, in particular to HMRC; people need to be aware of these before agreeing to take up a direct payment. Disability and Tax: A Guide provides information on being an employer.
The local authority should consider whether to carry out checks to make sure any PAYE income tax and National Insurance contributions deducted from an employee’s pay are paid to HMRC and that employment payments do not breach the national minimum wage and conform to pension requirements, if relevant. Some people may not need this check to be performed, but it may be more appropriate in other cases.
Where it becomes clear that payments, or returns detailing employee deductions, have not been made or that the person is failing to meet their obligations as an employer generally, the direct payment scheme should be reviewed and consideration given to whether alternative arrangements need to be made and the direct payment recipient is no longer an employer. Not doing so may result in the person building up arrears of tax and National Insurance due to HMRC, which may then lead to enforcement action to recover any debt. This situation should be able to be avoided by effective monitoring where appropriate, and by providing – in advance – clear, accessible information about the responsibilities of becoming an employer.
Where people are interested in using direct payments to become an employer, for example directly employing a PA, the local authority should ensure that the person is given information and advice that explains the difference between a regulated and unregulated provider to help them to make a fully informed decision on how best to meet their needs. Where a direct payment is made, the local authority must also ensure that the authorised person is aware of how to access Disclosure and Barring Service checks on individuals they wish to employ, for example, by ensuring that a check has been made by the agency providing the service, the local authority or by another body; individuals cannot apply for DBS checks on other individuals. The local authority should make people aware of this and the importance of thorough checks and employment references in the recruitment process.
Where the person wishes to employ their own personal assistant directly, the local authority should also have regard to the guidance published by Skills for Care (Individual Employers, Skills for Care) which details minimum levels of support for individual employers and personal assistants. This guidance recommends local authorities should provide ongoing support through access to training activities, promoting the Workforce Development Fund and encouraging apprenticeships for personal assistants.
11. Direct Payments and Hospital Stays
There may often be occasions when direct payment recipients require a stay in hospital. However, this should not mean that the direct payment must be suspended.
Where the direct payment recipient is also the adult requiring care and support, consideration should be given to how the direct payment may be used in hospital to meet non-health needs or to ensure employment arrangements are maintained. Suspending or even terminating the payment could result in the person having to break an employment contract with a trusted personal assistant, causing distress and a lack of continuity in their care when they are discharged from hospital.
In these cases, the local authority should explore with the adult, their carer and the NHS the options to ensure that both the health and care and support needs of the adult are fully met in the best way possible. For example, they may prefer the personal assistant to visit hospital to help with their personal care. This may be especially so where there has been a long established relationship between the direct payment holder and the PA. This should not interfere with the medical duties of hospital personnel, but the PA could work alongside health staff.
In some cases, the nominated or authorised person managing the direct payment may require a hospital stay. In these cases, the local authority must conduct an urgent review to ensure that the person continues to receive care and support to meet their needs. This may be through a temporary nominated / authorised person or through short term care and support arranged by the local authority.
12. Direct Payments for Local Authority Services
As a general rule, direct payments should not be used to pay for local authority provided services from the adult’s ‘home’ local authority. Where an adult wishes to receive care and support from their local authority, it is easier to provide the service direct to them. This will also avoid possible conflicts of interest where the local authority is providing both the direct payment, but also promoting their services for people to purchase.
There may be cases where the local authority decides to provide care and support by receiving a direct payment amount. For example, this could be where a person who is using direct payments wants to make a one off purchase from the local authority, such as a place in day care. In such cases, the local authority should take into account the wishes of the adult requiring care and support when making a decision. It may be easier to accept the direct payment amount, rather than providing the service and then reducing the personal budget and direct payment accordingly.
This does not prevent adults from using their direct payment to purchase care and support from a different local authority. For example, an adult may live close to local authority boundaries and another local authority may be able to provide a particular service that their ‘home’ authority does not provide.
13. Direct Payments Using Pre-paid or Pre-payment Cards
Local authorities can use prepaid cards as a way of allowing direct payments without the need for a separate bank account, or to make the financial management of the payment easier. While the use of such cards can be a useful, they should not be the only way to take a direct payment The offer of a ‘traditional’ direct payment paid into a bank account should always be available if this is what the person asks for and this is appropriate to meet their needs. Consideration should be given to the pros and cons of this arrangement, as opposed to a prepaid card.
It is also important that where a prepaid card system is used, the person still has choice and control. For example, there should not be total restrictions on cash withdrawals from prepaid cards which could limit the person’s choice and control. The card must not be linked solely to an online market place that only contains selected providers in which to choose from.
14. Coordinating Direct Payments
In circumstances where it is in the adult’s interest to combine the support plan and budget with another form of state support (such as personal health budgets) and they agree that plans should be combined, consideration should be given as to whether the person is receiving direct payments from partner organisations, such as the NHS. If so, attempts should be made to coordinate the direct payments so the adult does not have multiple payments each with their own monitoring regime. For example, the local authority can work with the NHS partner to agree on a ‘lead organisation’ that oversees the overall budget and monitors the direct payments to ensure they are being used to meet both health and care needs, while still making sure both organisations are adhering to their legal responsibilities.
15. Reviewing Direct Payments
As well as monitoring direct payments generally to make sure they are being used to meet care and support needs, the local authority must also review the making of a direct payment within the first six months of making the first payment.
This is intended to be a ‘light touch’ review to ensure the adult is comfortable with using the direct payment and is not having any initial issues. Ideally it should be included in the initial review of the support plan, six to eight weeks after it has been signed off. It should include elements such as managing and using the direct payment and a discussion of any long term support arrangements that may be necessary, such as payroll, insurance cover and third party support. Local authorities should ensure that reviewing officers are appropriately trained to review direct payments (for example are familiar with the local authority’s financial procedures and employment laws).
This review is not a full review of the adult’s support plan. However, if this review raises concerns or requires actions that impact on the detail recorded in the support plan, then a full review of the plan would need to be carried out (see Review of Support Plans chapter).
If the direct payment recipient is employing people, the local authority should – as part of the review – consider checking, that the individual is adhering to their responsibilities as an employer, for example, that they are submitting PAYE returns to HMRC, as well as paying tax and National Insurance deductions they have made to HMRC.
After the six month review, the local authority must then review the making of the direct payment no later than every 12 months. In practice after the initial six month review period, local authorities may wish to consider conducting the annual review of the direct payment at the same time as the general review of the support plan (see Review of Support Plans chapter). This will reduce bureaucracy and allow the local authority to review both at the same time.
Where a direct payment is allocated to a nominated / authorised person, or where there is a family carer being paid for management / administrative support, the review should include all these people as well as the adult in need of care and support. This will ensure that the local authority receives views from everyone involved in the direct payment, so that it can satisfy itself that there are no initial issues that require resolving.
The outcome/s of the review should be written down and a copy given to all parties. Where there are issues that require resolving, the resolution should be agreed with all parties involved, as far as is reasonably practicable. Where appropriate, people should be advised of their rights to access the local authority’s complaints procedure (see Complaints chapter).
16. Ending Direct Payments
Direct payments should only be stopped as a last resort or where there is clear and serious breach of the Regulations or where the conditions in sections 31 or 32 of the Act are no longer met (except in cases of fluctuating mental capacity – see below). All reasonable steps should be taken by the local authority to address any situations arising without stopping the payment. Effective, but proportionate, monitoring processes will help local authorities to identify any potential issues before ending the payment is necessary.
If terminating a direct payment, the local authority must ensure there is no gap in the provision of care and support. Where such a decision has been made, the support plan should be updated by the local authority to ensure that it is appropriate to meet the needs in question (see Review of Support Plans chapter).
17. Reasons for Discontinuing Direct Payments
A person to whom direct payments are made, whether to purchase support for themselves or on behalf of someone else, may decide at any time that they no longer wish to continue receiving a direct payment. In these cases, the local authority should make sure there are no outstanding contract issues and conduct a review of the support plan to consider alternative arrangements to meet the adult’s needs.
A direct payment should also be discontinued if:
- the person no longer appears to be capable of managing it or of managing it with whatever support is necessary;
- when an adult no longer needs the support for which the direct payment was made. This might happen in situations where the direct payment was for short term packages when leaving a care home or hospital.
- direct payments for mental health aftercare services under section 117 of the Mental Health Act 1983 also cease when the integrated care board and the local authority are satisfied the adult concerned is no longer in need of such services;
- the local authority may discontinue direct payments temporarily, for example, when an adult does not require assistance for a short period because their condition improves and they do not require the care and support the direct payments were meant for. The local authority will need to discuss with the adult, their carer, and any other person how best to manage this. The adult should be allowed to resume responsibility for their own care after the interruption, if that remains their wish, unless there has been a change of circumstances which means that the conditions in the Act and / or Regulations are no longer met. If there is a change of circumstances that affects the support plan or support plan, the local authority must revise the plan to ensure it is still meeting needs;
- the local authority might also discontinue direct payments if the person fails to comply with a condition imposed under regulations to which the direct payments are subject or if for some reason the local authority no longer believes it is appropriate to make the direct payment. For example, the local authority might discontinue the direct payment if it is apparent that it has not been used to achieve the outcomes of the support plan;
- the regulations set out that direct payments must not be provided under certain conditions, such as where the recipient is placed by the courts under a condition or requirement relating to a drug and/or alcohol dependency;
- where direct payments are discontinued as a result of criminal justice legislative provisions, the local authority should make timely arrangements for services to be provided in lieu of the direct payments in order to ensure continuity of support.
18. Discontinuing Direct Payments and Mental Capacity
See also Mental Capacity chapter
Where someone with capacity was receiving a direct payment but then loses the mental capacity to consent, the local authority should discontinue the direct payment to that adult and consider making payments to an authorised person instead. In the interim, alternative arrangements should be made to ensure continuity of support for the adult concerned.
If the loss of capacity to consent appears to be temporary, payments may continue to be made if there is someone else willing to manage payments on the adult’s behalf. This situation should be treated as temporary and should be closely monitored to ensure that when the person has regained mental capacity they are able to exercise control over the direct payments as before.
If the adult’s loss of capacity to consent becomes prolonged, the local authority should consider making more formal arrangements for an authorised person to take over receipt of the direct payment on behalf of the adult. The local authority should make clear the arrangement is designed to be temporary so the person managing the direct payment does not enter into any long term contractual arrangements.
Direct payments should be discontinued if:
- the authorised person is no longer acting in the best interests of the adult for whom a direct payment is made;
- the local authority has reason to believe that authorised person is not meeting the requirements for managing the direct payment. The local authority may wish to consider if someone else can act as an authorised person for the adult lacking capacity or whether it will have to arrange services for them in place of the direct payment;
- someone who had lacked capacity to consent to direct payments has now regained that capacity on a long term or permanent basis.
The authority should not end the direct payments to the authorised person before beginning to make direct payments to the adult themselves or to arrange services for them, according to their wishes. If the local authority is satisfied that the regaining of capacity will only be temporary, then it can continue to make direct payments to the authorised person if during the period that the adult has the capacity to make the request and is capable of managing the direct payment, the adult will manage the payments for him or herself.
19. How to Discontinue Direct Payments
In all cases and as soon as possible, the local authority should discuss with the adult, their carer and any person managing the direct payment if it is considering discontinuing direct payments to them, in order to explore all available options before making the final decision to terminate the direct payment. For example, if ability to manage is an issue, the adult can be given an opportunity to demonstrate that they can continue to manage direct payments, albeit with greater support, if appropriate.
The local authority should not automatically assume when problems arise that the only solution is to discontinue direct payments.
If the local authority does decide to withdraw direct payments, it will need to conduct a review of the support plan and agree alternative care and support provision with the adult, their carer and independent advocate, if they have one, unless the withdrawal was following a review after which the local authority concluded that the services were no longer needed.
A minimum period of notice should be agreed, that will normally be given before direct payments are discontinued. This should be included in the information provided to people who are considering receiving direct payments.
It will be extremely unlikely that a local authority will discontinue direct payments without giving notice, although in serious cases this may be warranted, (for example if the authorised person is not acting in the best interests of the person). Local authorities should explain to people, before they begin to receive direct payments, the exceptional circumstances in which this might occur and discuss with them the implications this might have for the arrangements that individuals might make.
If direct payments are discontinued, some people may find themselves with ongoing contractual responsibilities or having to terminate contracts for services (including possibly making employees, such as PAs redundant). Local authorities should take reasonable steps to make people aware of the potential consequences if direct payments end, and any obligations they may have.
There may be circumstances where the adult has lost the mental capacity to manage the direct payment and there is no one else to manage the payment on their behalf, or where the person needs additional support to terminate arrangements. In these cases, the local authority should have regard as to whether it needs to step in or provide support to ensure that any contractual arrangements are appropriately terminated and that additional costs are not incurred.
20. Further Reading
20.1 Relevant chapters
20.2 Relevant information
Appendix 1: Influencing the Success of Direct payments
This summary is taken from Influencing the Success of Direct Payments (TLAP)
- Long-term strategic leadership commitment is needed, and direct payments should fit with other strategic priorities. This strategic commitment should be agreed in co-production with people with lived experience and their organisations.
- Direct payments can work for all groups who access long term community-based care and support. Although there are risks of abuse with direct payments, if properly managed, there is no clear evidence they are riskier than other forms of care and support. Concerns that people will not spend the money on meeting their needs are not borne out in evidence.
- People’s voices should be heard throughout the assessment and support planning process. Where people are supported to use their direct payment flexibly and creatively, they can focus on using the money to live good lives – not just being clean, dressed and fed.
- The role of social workers and other assessment practitioners is pivotal in supporting people to take and manage a direct payment. Clear information and advice, supplemented with support from people who have lived experience in how direct payments work is essential, so that everyone is clear on the purpose of direct payments and how the local system operates.
- Practitioners should receive regular training, development and support. They need to feel confident in upholding the values and approach to self-directed support, whilst remaining sensitive to people’s individual circumstances and choices.
- When setting up a direct payment everyone involved should have a clear and shared expectation on the purpose of the direct payment and how it can be used, both within the council and with the person.
- Having people with the right qualities and motivations and a mix of skills and experiences within a direct payment support service is crucial.
- Peer support between direct payment recipients works really well to provide good support and information to all stakeholders. Disabled people often want to provide peer support to each other around direct payments, but whilst councils can and should do everything they can to support this, they can’t make it happen as if it were a commissioned service.
- Good support to direct payment recipients and personal assistants can mitigate and help address conflicts that can arise from the close personal nature of the relationship.
- Technology can help with taking and managing direct payments, but should not been seen as a panacea. There are limited examples of technology being used to connect people with direct payments to each other, or helping them to access information on the options available to assist their support.
- How individual local authorities approach their commissioning work affects the way direct payments can be fully realised, maximising choice and control.
- Innovative models of support like micro-provision and co-operatives can offer more tailored and personalised care and support than established types of provision. They need the support of commissioners for their full potential to be realised.