Direct Payments. Alistair Mills Landmark Chambers 10 March 2015

Transcription

1 Direct Payments Alistair Mills Landmark Chambers 10 March 2015

2 Direct Payments: a change for the better? Previous regime combination of different Acts, as well as the 2009 Regulations Now to be replaced with the 2014 Act and the Care and Support (Direct Payments) Regulations 2014 Significant streamlining Helpful guidance in Chapter 12 of the Care and Support Statutory Guidance

3 Purpose of Direct Payments A direct payment is made on condition that it be used only to pay for arrangements under which the needs specified under s.25(2)(a) in the care and support plan or (as the case may be) the support plan are met. Care and support plan / support plan is mandatory step where local authority is required to meet needs, or decides to do so (s.24(1)) The plan must specify which needs are to be met by making direct payments, and the amount and frequency of direct payments (s.25(2)

4 Who is Entitled to Direct Payments? Set out in s.31 where adult has capacity Where a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and The adult requests the local authority to meet some or all of those needs by making payments to the adult or a person nominated by the adult Subject to Regulations, then direct payments must be made if 4 conditions are met

5 Person with capacity: 4 conditions (1) Adult has capacity, and where there is nominated person, that person agrees to receive payments; (2) Local authority is not prohibited by Regulations from meeting the adults needs by direct payments (or where this made subject to discretion, local authority does not exercise discretion) (3) Adult / nominated person capable of managing direct payments by himself / with accessible help (4) Local authority satisfied that making direct payments appropriate way to meet the needs

6 Regulation 2: Direct Payments Prohibited No direct payments to persons within Schedule 1 These are essentially persons with problems with drink or drugs in a criminal context Schedule 1 is very similar (as it relates to England) to Schedule 1 of the current (2009) regs), with the following changes: insertion of those with a drug testing/drug appointment requirement when released on licence under ss.64/64a of the Criminal Justice and Courts Services Act 2000 insertion relating to drug testing/drug appointment requirement in notice given under s.256aa of the Criminal Justice Act 2003 (supervision after the end of sentence of prisoners serving less than 2 years)

7 Mandatory Conditions: Regulation 3 Regulation 3 sets general rule that direct payments may not be made in order to pay certain persons These persons are: Spouse/civil partner Cohabitee Parent (or in-law) /child (or in-law / or stepchild) Aunt/uncle Grandparent Or spouse/civil partner/cohabitee of the above

8 Mandatory Conditions: Exceptions Exceptions apply to the prohibition on money being used to pay prohibited list where: Necessary that direct payments are made to such a person to meet the care needs; or Necessary to provide administrative and management support or services for the purpose of enabling the recipient of the direct payments to comply with legal obligations (e.g. employment) or monitor the receipt and expenditure of the direct payment

9 Optional Conditions: Regulation 4 A local authority may impose other conditions: general power These may (in particular) require: That the needs not be met by a particular person That the adult or authorised person (in the cases of lacking capacity) must provide information to the local authority

10 Prohibited Conditions: Regulation 4 Conditions may not require: That the needs be met by any particular person Provision of information more frequently and in more detail than reasonably required to ascertain that making direct payments is appropriate / conditions upon which they are made are complied with Information be provided in format not reasonably practicable

11 Reviews: Regulation 7 Must be review of appropriateness of direct payments at least once within first 6 months of direct payment, and at intervals not exceeding 12 months thereafter Where local authority considers there has been breach of condition, which may lead to it terminating direct payments or requiring repayment Where local authority considers that the adult no longer has capacity to request the direct payment, or the adult is not capable of managing direct payments, or making direct payments not appropriate

12 Reviews: Participation Regulation 7 sets out duties concerning involvement: Adult Carer Authorised person Person providing administrative / management support or services Person whom the adult asks the authority to involve Must take all reasonable steps to reach agreement as to the outcome of the review with the adult concerned

13 Provision for accommodation in care home: Regulation 6 General prohibition on long-term care home accommodation still maintained: not more than 4 consecutive weeks in any 12 month period (In calculating 4 weeks, if have a period of accommodation of less than 4 weeks, and then a gap of less than 4 weeks before another period of accommodation, then add those periods together, but not otherwise) Exceptions for trial certain local authorities in Schedule 2 (inc. Bristol, Surrey and 3 London Boroughs) aimed to be rolled out nationally in 2016

14 Harmonisation with direct payments for NHS Continuing Care: Regulation 10 Direct payments can be made for personal health budgets concerning NHS Continuing Care under the National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012 Where this is so, local authorities must take reasonable steps to co-ordinate the systems, processes and requirements between the two sets of direct payment to minimise the administrative burden at the receiving end

15 Persons without capacity: s.32(1) Applies where personal budget specifies amount which local authority must pay towards cost of meeting needs to which the personal budget relates Adult lacks capacity to request the local authority to meet any of the needs Authorised person requests local authority to meet some or all of needs by making direct payments to authorised person (Authorised person defined s.32(4))

16 Persons without capacity: 5 conditions (1) Where authorised person is not authorised under Mental Capacity Act 2005, someone who is supports the request (2) Not prohibited by regulations / discretion not exercised against the making of direct payments by the local authority (3) Local authority satisfied that the authorised person will act in the adult s best interests in arranging for the provision of care and support for which direct payments would be used (4) Authorised person is capable of managing direct payments, either by himself, or with accessible help (5) Local authority satisfied that making direct payments to the authorised person is appropriate way to meet the needs in question

17 Mandatory Condition for Person Lacking Capacity: Regulation 3(4)-(5) The authorised person must notify the local authority if he reasonably believes that the adult no longer lacks capacity The following persons must obtain an enhanced criminal record certificate: Corporation Unincorporated body of persons A non-family member (to summarise) An individual who is not a friend of the adult involved in the provision of care for the adult

18 Persons without capacity: necessary preliminary steps; Regulation 5 Before deciding that Condition 5 (appropriate way to meet needs) is met, local authority must (so far as is reasonably practicable and appropriate) consult and take into account the views of: anyone named by the adult as someone to be consulted on this issue anyone engaged in caring for the adult any person authorised under the Mental Capacity Act 2005

19 Persons without capacity: necessary preliminary steps (2) The local authority must, as far as is reasonably ascertainable, consider: The adult s past and present wishes and feelings (especially any relevant written statement made by the adult when he had capacity) The beliefs and values that would be likely to influence the adult s decision Other relevant factors that the adult would be likely to consider if he was able to do so

20 Persons without capacity: necessary preliminary steps (3) The local authority must obtain an enhanced criminal record certificate in respect of the authorised person if neither a relative nor a friend of the adult involved in the provision of care for the adult Where the authorised person is a body corporate or unincorporated body of persons, the local authority must obtain an enhanced criminal record certificate in respect of the individual who will actually have overall responsibility for the day to day management of the direct payments

21 Falling out of capacity: Regulation 8 Where someone generally has capacity but will temporarily lose capacity, then for the purposes of ascertain whether the provision on termination of direct payments applies, then the person can be treated as having capacity where another person who appears to be capable of managing a direct a payment is prepared to accept and manage the payments during the period of incapacity

22 Falling into capacity: Reuglation 9 For the purposes of determining whether a person ceases to have capacity, an adult who no longer lacks capacity may be treated as lacking capacity where: The gaining of capacity is temporary The direct payments made during the period of capacity are made subject to an additional condition that the authorised person shall allow the adult to manage the direct payments themselves for the period of capacity

23 Reviews in cases concerning capacity The local authority must review: in the circumstances that it considers that the adult no longer lacks capacity Where informed by any persons of concerns that the direct payment may not have been used to meet the needs for which the payment was made Considers, or notified by any person of concerns, that conditions 3-5 (authorised person acting in best interests; authorised person capable of managing; direct payments appropriate way to meet the needs) are no longer met

24 Involvement in capacity cases Involvement as in cases without issues of capacity, but also must involve the person authorised under the MCA 2005 to make decisions about the adult s needs for care and support If no such person, then any person seeming to be interested in the adult s welfare Local authority must take all reasonable steps to reach agreement as to outcome of review with the person authorised under the MCA 2005, or, if no such person, any person seeming to be interested in the adult s welfare

25 Termination of Direct Payments: s.33(4) Where the conditions (1-4 in the case of those with capacity; 1-5 in the case of those who do not) are no longer met, the local authority must terminate the making of direct payments Where direct payments not being used for the approved purposes, the local authority may terminate them, and recoup some or all of the direct payment Where conditions in the Regulations breached, local authority may terminate direct payments, and recoup some or all of the direct payment