Direct Payments

1. Promoting Direct Payments

The Care Act expects you to promote the use of Direct Payments. This means that whenever you identify that a Direct Payment may be an appropriate way to manage all (or part) of a personal budget you should discuss the benefits of doing so and support access to a Direct Payment.

This could apply:

1. When giving information and advice at any time;
2. During initial discussions about how eligible needs could be met;
3. When Care and Support Planning/Support Planning;
4. During statutory reviews; or
5. Throughout any process of monitoring.

2. Providing information and Advice about Direct Payments

General information and advice

You are expected to be able to provide general information and advice about Direct Payments whenever:

1. A person/carer asks for it (reactive); or
2. You have identified a need for it (proactive).

The following is a list of all the information that you should be able to provide:

1. When a Direct Payment can/cannot be provided;
2. How a Direct Payment can/cannot be used;
3. Who can/cannot manage a Direct Payment;
4. The process of arranging a Direct Payment;
5. How often a Direct Payment is normally paid;
6. How any assessed financial contributions should be made;
7. Where prepaid cards are available, how they work; and
8. How Direct Payments are monitored and reviewed.

This procedure will support you to provide general information and advice about the process of arranging, monitoring and reviewing a Direct Payment.

Details about when a Direct Payment can/cannot legally be provided, and how it can be used is available within the 'Direct Payments' section of the Care Act resource.

If you require any further support you should:

1. Speak to your line manager; or
2. Contact the team responsible for managing Direct Payments.

Information and advice about employing a Personal Assistant

Although you are expected to provide general information and advice about Direct Payments you are not expected to be able to provide specific information or advice about employer liabilities and responsibilities where a person intends to employ a Personal Assistant.

Where such information or advice is required you must however take steps to ensure that the person/carer has access to it, either:

1. From the team responsible for managing Direct Payments; or
2. From an independent Direct Payment advisor.

Consent

If you find yourself providing information and advice that is specific to the circumstances of a particular person/carer, you must consider who you are providing it to, and whether it is appropriate to provide it to them.

Normally it will only be appropriate to provide this information to:

1. The person/carer; or
2. Somebody else where clear consent of the person/carer has been given; or
3. Where the person lacks capacity, a Deputy appointed by the Court of Protection to make decisions about financial matters; or
4. Where the person lacks capacity, a Donee of a Lasting Power of Attorney who is authorised to make decisions about financial matters; or
5. Where the person lacks capacity, and there is no Deputy or Donee a person that you deem it in their Best Interests to provide the information to.

Accessibility

All information and advice that you provide must be given in a way that the person/carer receiving it will best be able to understand and use. This is a legal requirement of the Care Act.

See: How to Provide Information and Advice to read more about how to provide information in an accessible way under the Care Act.

If you provide information and advice but feel that the person/carer for whom it is intended will need additional support to understand it then you should consider:

1. Whether the information can be provided in a different way;
2. Whether you can take any additional steps to support the person/carer to understand it (for example talking through the information on the telephone or in person);
3. Whether it would be appropriate to appoint an independent advocate to support the person/carer to understand and use the information.

3. Direct Payments and Mental Capacity

General guidance

A person who lacks capacity to request or manage a Direct Payment is still legally entitled to receive one as long as:

1. A legally authorised person has deemed it in their Best Interests (a Deputy or a Donee of a Lasting Power of Attorney); or
2. Where no legally authorised person exists, you deem it to be in their Best Interests; and
3. There is a suitable person available to receive and manage the Direct Payment.

Fluctuating capacity

If a person has fluctuating capacity a suitable person must still be appointed to receive and manage the Direct Payment but:

1. They must agree to the person with Care and Support needs  making decisions about how the Direct Payment is used during periods where they have capacity to do so; and
2. You must be satisfied that this is going to be the case before arranging the Direct Payment.

Monitoring a suitable person

You must make appropriate and proportionate arrangements to monitor the Direct Payment when you have concerns that a suitable person:

1. May not be able to manage the Direct Payment; and/or
2. May not arrange support and services that are in the Best Interests of the person; and/or
3. Where the person has fluctuating capacity, may not permit them to make their own decisions about how the Direct Payment is used when they have capacity to do so.

4. Before Arranging a Direct Payment

In all circumstances

Before arranging a Direct Payment you must be satisfied that all of the following apply:

1. The person with Care and Support needs (or carer with Support needs) is not excluded from receiving a Direct Payment under the Care Act; and
2. Where the person with Care and Support needs (or carer with Support needs) is receiving or managing the Direct Payment, they are capable of managing it (with or without support); or
3. Where the person receiving or managing the Direct Payment is not the person with Care and Support needs (or carer with Support needs), they are willing and capable of managing it; and
4. Where the person with Care and Support needs lacks capacity, the Direct Payment will be used by the suitable person to arrange services that are in their Best Interests; and
5. The Direct Payment is the most appropriate way of arranging the required support or services; and
6. If the Direct Payment will be used to employ a Personal Assistant, that employer related costs have been taken into account; and
7. If being used to pay for respite in a care home, no more than 4 weeks of this will be taken consecutively in any 12 month period; and
8. The Direct Payment will not be used to pay for Care and Support (or Support) provided by a relative living in the same household; unless
9. This has been agreed through the Care and Support/Support Plan sign-off process.

Note: For guidance about the 4 consecutive weeks in a care home rule, see: Meeting Needs in a Care Home.

If you have any doubts about any of the above conditions you should:

1. Seek the support and advice of your manager; or
2. Seek advice from the team responsible for managing Direct Payments; and
3. Consider the need to apply or recommend that conditions are placed on the Direct Payment; or
4. Consider the need to make appropriate and proportionate arrangements to monitor the Direct Payment.

Direct Payments to purchase Section 117 After-Care

If a person is to be provided with Section 117 After-Care under the Mental Health Act 1983 they are legally entitled to receive a Direct Payment, and to use the Direct Payment to purchase After-Care so long as all of the above conditions apply.

Direct Payments if the person already has a Health Direct Payment

If the person with Care and Support needs already has a Health Direct Payment you should:

1. Speak to your manager; and
2. Explore whether the two Direct Payment's can be provided as a single payment; and
3. If so, follow any local processes for arranging this; but
4. If not, arrange for a separate Local Authority Direct Payment in the normal way.

5. Arranging a Direct Payment

When to use this section of the procedure

This section of the procedure should be used when:

1. A person or carer has requested a Direct Payment; or
2. You have deemed it to be in their Best Interests; and
3. You are satisfied that there is no reason why the person/carer, their nominated representative or a suitable person (if they lack capacity) should not receive a Direct Payment; and
4. The Care and Support Plan/Support Plan has been signed off.

Applying and recommending conditions

The Local Authority is legally permitted to place conditions on a Direct Payment if it feels it necessary and appropriate to do so. These include:

1. Prohibiting a named individual from providing care; and
2. That certain information must be provided to enable effective monitoring.

Indicators that conditions may be required include concerns about:

1. A person's/carer's ability to receive or manage the Direct Payment (even with support);
2. The ability of a nominated representative or suitable person to manage the Direct Payment;
3. In the case of a person with Care and Support needs who lacks capacity, whether the suitable person will arrange services based on what is in their Best Interests;
4. If the person has fluctuating capacity, whether the suitable person will permit them to manage the Direct Payment when they have capacity to do so; and
5. The Direct Payment being used to purchase care from a family member living in the same household (without agreement to do so).

If you feel that it is necessary and appropriate for a condition to be placed on a Direct Payment you should:

1. Seek the advice of your manager; and
2. If they are in agreement, advise the team responsible for managing Direct Payments of the condition that has been applied; and
3. Make appropriate arrangements to monitor that the condition is met; or
4. If the condition relates to the provision of information about expenditure, recommend that the team responsible for managing the Direct Payment apply and monitor the condition.

Arranging the Direct Payment

You should refer to available local processes and guidance to arrange the Direct Payment.

6. Delays

Delays in arranging the Direct Payment

Delays in arranging the Direct Payment must not lead to delays in the meeting eligible needs.

If a delay in arranging the Direct Payment occurs you must take steps to ensure that the statutory obligation of the Local Authority to meet eligible needs is met by arranging any interim services required.

Delays in employing a Personal Assistant or arranging services

The duty to meet eligible needs is not discharged until:

1. The Direct Payment is being provided; and
2. Services and support to meet eligible needs is in place.

If there are delays in employing a Personal Assistant or arranging the required service you should consider whether:

1. You are able to support in the arrangement of a service; or
2. Other support can be provided (for example an advocate); or
3. An independent person or organisation can support in the recruitment of a Personal Assistant.

If a delay persists you must take steps to ensure that the statutory obligation of the Local Authority to meet eligible needs is met by arranging any interim services required.

7. Monitoring how a Direct Payment is used

When monitoring may be needed

Appropriate and proportionate arrangements to monitor how the Direct Payment is being used should be considered when a one-off payment has been provided to make a specific single purchase, or conditions have been placed on the Direct Payment.

Monitoring should also be considered if there are concerns about:

1. Delays in arranging services and support to meet eligible needs; or
2. A person's/carer's ability to receive or manage the Direct Payment (even with support);
3. The ability of a nominated representative or suitable person to manage the Direct Payment;
4. In the case of a person with Care and Support needs who lacks capacity whether the suitable person will arrange services based on what is in their Best Interests;
5. If the person has fluctuating capacity, whether the suitable person will permit them to make their own decisions about how to use the Direct Payment when they have capacity to do so; and
6. The Direct Payment being used to purchase care from a family member living in the same household (without agreement to do so).

Depending on the nature of what is being monitored, it may be more appropriate for monitoring activity to be completed by the team responsible for managing Direct Payments.

Recording monitoring activity

Any monitoring activity that you carry out should be clearly recorded. In particular you should record:

1. Whether any specific item to be purchased with a one-off Direct Payment has been purchased as intended;
2. Whether concerns remain/exist;
3. Whether on-going monitoring activity is required;
4. Whether the on-going Direct Payment remains appropriate.

8. Concerns about an Existing Direct Payment

The following are some of the concerns that could exist regarding a Direct Payment:

1. The person/carer does not appear to be able to receive or manage the Direct Payment appropriately (even with support);
2. A nominated representative or suitable person does not appear able to manage the Direct Payment;
3. In the case of a person with Care and Support needs who lacks capacity the suitable person is not arranging services based on what is in the person's Best Interests;
4. If the person has fluctuating capacity, the suitable person is not permitting them to make their own decisions about how to use the Direct Payment when they have capacity to do so; or
5. The Direct Payment is being used to purchase care from a family member living in the same household (without agreement to do so).

Concerns about an existing Direct Payment can arise at any time and, if you are working with a person/carer who is using a Direct Payment you should:

1. Have conversations about how the Direct Payment is working as and when you feel they are required (not just during statutory reviews); and
2. Be vigilant to some of the possible concerns that could arise; and
3. Ensure that they are reported to the person best placed to respond (if this is not you).

Concerns can also be identified and raised by:

1. The person with Care and Support needs (or carer with Support needs);
2. The person receiving or managing the Direct Payment (if not the person/carer);
3. The team responsible for managing Direct Payments;
4. A healthcare professional (e.g. a community or district nurse);
5. Another social care professional or practitioner (for example a housing colleague);

If you identify, or become aware of any concerns you must:

1. Record the concerns and the evidence for them;
2. Seek the support and advice of your line manager as required;
3. Take steps to resolve any issues that you are able to resolve;
4. Notify your line manager of the concerns and action taken (if not already done so when first identified); and
5. Notify the team responsible for managing Direct Payments if steps cannot be taken to address the issue without their involvement.

If the team responsible for managing Direct Payments are notified they will normally decide (in consultation with you) the best course of action to take, which could include:

1. Placing a condition on the Direct Payment;
2. Increased monitoring activity;
3. Variation of the Direct Payment;
4. Suspension of the Direct Payment; or
5. Withdrawing the Direct Payment.

9. Reviewing a Direct Payment

The timing of a Direct Payment Review

Initial reviews of a Direct Payment must take place no later than 6 months after the first payment is made.

Further reviews must take place no less than every 12 months after that.

It is prudent to carry out more frequent reviews when:

1. There are conditions placed on the Direct Payment; or
2. The Direct Payment is being monitored because there are concerns.

Combining a Direct Payment Review with another review

If you are carrying out the Direct Payment review you should make arrangements to do so alongside any other statutory review that is taking place at that time, unless there is a valid reason not to do so.

This includes the review of:

1. A Care and Support Plan;
2. A Support Plan; or
3. An Education, Health and Care Plan (EHC Plan).

The purpose of a Direct Payment review

The purpose of the review is to:

1. Reflect on what is working and not working about the Direct Payment;
2. Consider what may need to change about the Direct Payment;
3. Make sure the Direct Payment remains the most appropriate way to provide the required services; and
4. Make sure the Direct Payment is supporting the person/carer to meet their outcomes as intended.

In order to achieve its purpose the following must all be reviewed:

1. How well the process of receiving payments is working;
2. How well the Direct Payment is being managed;
3. Whether records required by the Local Authority are being maintained by the person receiving/managing the Direct Payment;
4. Whether information is being provided to the Local Authority as required;
5. Whether the Direct Payment is being used as anticipated;
6. Whether the Direct Payment is supporting the person/carer to meet the outcomes in their Care and Support Plan/Support Plan.

Who must be involved

There is a legal requirement to involve the following people in a Direct Payment review:

1. The person receiving Care and Support; or
2. The carer receiving Support;
3. Any carer the person has;
4. The person to whom the payments are being made (if this is not the person receiving Care and Support or the carer);
5. Any person who is providing administrative or management support;
6. Anybody the person asks the Local Authority to involve;
7. In the case of a person who lacks capacity, anybody authorised by the Mental Capacity Act to make decisions about Care and Support provided to the person (a Deputy of Power of Attorney); or
8. Where no authorised person exists, anybody the Local Authority deems to be interested in their welfare.

The team managing the Direct Payment

It is not possible to carry out a Direct Payment review without the involvement of the team managing the Direct Payment because they are the only people who will be able to provide information about:

1. Whether records required by the Local Authority are being maintained by the person receiving/managing the Direct Payment; and
2. Whether information is being provided to the Local Authority as required.

They may also have been involved in monitoring existing concerns, or have gathered other information that may be prudent to any decision about the on-going appropriateness of the Direct Payment.

There are a number of options for involving the team in the review, ranging from:

1. Consultation only; to
2. A full joint review.

The nature of the team's involvement in the review will depend on:

1. The complexity of the Direct Payment;
2. The existence of any concerns or conditions; and
3. Should be agreed in advance with them.

Light touch reviews

It is possible to carry out a light touch review of the Direct Payment (even if any other review is not light touch), so long as:

1. The person/carer (or their representative) is happy to continue using and managing the Direct Payment;
2. The Direct Payment remains an appropriate way to meet the eligible needs identified in the Care and Support Plan; and
3. The Local Authority has no concerns about how the Direct Payment is being managed or used.

In order for the outcome of a light touch Direct Payment review to be sufficient you must be satisfied that the Direct Payment is:

1. Appropriate to meet the needs set out in the Care and Support/Support Plan;
2. Being well managed;
3. Being used appropriately to meet the needs and outcomes identified in the Care and Support/Support Plan.

Deciding the outcome of the review

Possible outcomes

There are 4 possible outcomes following a Direct Payment review:

1. No changes required to the Direct Payment;
2. Changes to one or more element of the Direct Payment;
3. Suspension of the Direct Payment; or
4. Termination of the Direct Payment.

Deciding the outcome

Throughout the process of review you should talk to the person (or their representative)/ carer and others involved about the likely outcome of the review, endeavouring to reach an agreement about this as the process progresses.

The Local Authority is however responsible for making the final decision about the outcome of the review. This is a decision that must be made with full regard for:

1. In agreement with the Direct Payments team; and always with regard for
2. The views of the person/carer about the outcome;
3. The impact of the outcome on the person/carer's Wellbeing; and
4. The views of anyone else consulted in the process.

Any decision that you make about the outcome of the review must be evidence based and robust. This means you must be able to demonstrate the information that you have used to reach a decision if challenged.

Managing disagreement about the outcome

There may be times when the person/ carer, their representative or another person disagrees with the decision that has been made about the outcome of the review.

In this situation you should be open to reviewing the available evidence to ensure that the decision is robust. You should be open and transparent about the evidence sources you have used and take steps to try and support the person/carer to understand the decision you have made.

Where ongoing disagreement persists you should you must make the person (or their representative)/ carer aware of their right to complain about the decision that has been made.

Complaints should be made in line with local processes.

Making a formal record of the review

Wherever possible, you should make a formal record of the review as part of the formal record of any other statutory review that is taking place at that time, unless there is a valid reason not to do so.

This includes the review of:

1. A Care and Support Plan;
2. A Support Plan; or
3. An Education, Health and Care Plan (EHC Plan).

You are responsible for establishing:

1. The current review framework used by the Local Authority for recording purposes; and
2. The timeframe for making a formal record; and
3. Any particular local requirements for recording a Direct Payment review.

If you are unclear you should speak to your line manager before proceeding to make a formal record of the review.

The following information about the Direct Payment should be clearly but proportionately recorded:

1. Any issues or concerns about how the processes of receiving and managing payments is working;
2. Whether records required by the Local Authority are being maintained by the person receiving/managing the Direct Payment;
3. Whether information is being provided to the Local Authority as required;
4. Whether the Direct Payment is being used as anticipated;
5. Whether the Direct Payment is supporting the person/carer to meet the outcomes in their Care and Support Plan/Support Plan;
6. Whether the Direct Payment is still the most appropriate way to meet the person/carer's eligible needs;
7. Whether any changes are required to the Direct Payment; and
8. Whether the Direct Payment will continue;
9. The views of the person/carer and the person receiving/managing the Direct Payment about all of the above.

The person/carer and anybody responsible for receiving or managing the Direct Payment must be provided with a copy of the formal record.

Actions following the review

Deciding the timeframe for the next review

If the Direct Payment is to continue the next statutory review must be carried out within 12 months. However, the date can be earlier and decisions about the timeframe must consider:

1. The need to monitor any aspect of the Direct Payment;
2. When other statutory reviews are scheduled to take place (as a combined review should be arranged wherever possible);
3. Whether the Care and Support Plan/Support Plan is stable.

The agreed timeframe for the next review should be clearly recorded on the formal review record and any Care and Support Plan/Support Plan.

If you are unclear about an appropriate timeframe for review you should:

1. Seek the advice of your line manager; and
2. Obtain the views of the team responsible for managing Direct Payments.

10. Varying, Suspending or Ending a Direct Payment

Varying a Direct Payment

Variations to a Direct Payment include:

1. The addition or removal of a condition;
2. An increase in the Direct Payment paid;
3. A decrease in the Direct payment paid;
4. A change to the person receiving or managing the Direct Payment.

You should refer to available local processes and guidance to vary a Direct Payment.

Suspending a Direct Payment

A Direct Payment may be suspended when there are concerns about:

1. A person's/carer's ability to receive or manage the Direct Payment (even with support); or
2. The ability of a nominated representative or suitable person to manage the Direct Payment; or
3. In the case of a person with Care and Support needs whether the suitable person will arrange services based on what is in their Best Interests; or
4. If the person has fluctuating capacity, whether the suitable person will permit them to manage the Direct Payment when they have capacity to do so; or
5. The Direct Payment being used to purchase care from a family member living in the same household (without agreement to do so).

The following must be clearly recorded:

1. The reason that the Direct Payment has been suspended;
2. How long the Direct Payment is likely to be suspended for;
3. The support that will be given to try and resolve the issue; and
4. How the situation will be monitored or reviewed.

Arranging alternative services and support

If a Direct Payment is suspended the duty to meet eligible needs for Care and Support/Support still applies. This means you must take steps to ensure that the statutory obligation of the Local Authority to meet eligible needs is met by arranging any interim services required.

Ending a Direct Payment

The Direct Payment must be ended if:

1. The person/carer no longer wishes to revive the Direct Payment (when it is being paid to them and they have capacity to make this decision); or
2. The person/carer becomes subject to a requirement, license or order to undergo drug or alcohol rehabilitation, behaviour therapy or testing; or
3. A person with Care and Support needs moves into a care home; or
4. The carer is no longer a carer as defined in the Care Act.

The Direct Payment must also be ended if any of the following situations apply and no resolution to continue the Direct Payment can be found:

1. The person managing the Direct Payment has breached a condition of the Direct Payment Agreement;
2. The person managing the Direct Payment has not been using the Direct Payment to meet eligible needs;
3. The person with Care and Support needs has become permanently incapacitated and there is no suitable person to manage the Direct Payment;
4. The Direct Payment is being used to pay for a family member living in the same household as the young adult to provide care without prior agreement;
5. A Direct Payment is no longer deemed the most effective way to meet the person/carer's needs.

You should refer to available local processes and guidance to end a Direct Payment.

Arranging alternative services and support

If a Direct Payment is suspended the duty to meet eligible needs for Care and Support/Support still applies. This means you must take steps to ensure that the statutory obligation of the Local Authority to meet eligible needs is met by arranging any interim services required whilst further Care and Support/Support Planning is undertaken.