Challenging demands to repay direct payments

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Introduction

The Care Act 2014 requires that adults with eligible needs are provided with care and support which is detailed in a Care and Support Plan.  A similar duty exists in relation to disabled young people under the Children Act 1989. Care and support for disabled people (regardless of age) can be provided either by the local authority providing or commissioning the necessary services or by way of a direct payment. Local authorities are however finding ever more imaginative ways of cutting back on the care and support they provide.

 

Cutting back through reassessment

One way of cutting back on support is simply to reassess and then state that the needs no longer exist (or no longer require the same level of support).  This might also involve saying that family carers can and should do more themselves or even suggesting that they pay for the disabled person’s care and support needs.   This directly conflicts with the Care Act 2014 stipulation (section 10(5)) that there be no assumption that carers are willing or able to provide or continue to provide care: legally they do not have to do this.[1]  For an advice note on what to do in this situation click here.

A 2017 ombudsman’s case concerned a reduction to direct payments support package, not because the person’s needs had changed, but because the local authority considered that some of her eligible needs (relating to the ‘nutrition’ and ‘maintaining a habitable home’ outcomes) should be paid from her Disability Living Allowance (DLA).  This was held to be maladministration: there is ‘nothing in the Care Act 2014 or the statutory guidance which allows the Council to require a person to use their benefits this way’.[2]

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Record keeping

It is the responsibility of the person receiving a direct payment to ensure that it is spent on services to meet the assessed need. Some authorities have adopted overly bureaucratic systems that place unreasonable burdens on providing evidence that every penny of expenditure has been spent on its precise interpretation of what that need is.  In this respect the ombudsman has found fault with a council that sought to define in too narrow terms what might be a ‘community activity’ (report No. 17 013 291 against Norfolk).

In relation to the precision with which records have to be kept, the statutory guidance to the Care Act 2014 advises that (para 12.4):

For direct payments to have the maximum impact, the processes involved in administering and monitoring the payment should incorporate the minimal elements to allow the local authority to fulfil its statutory responsibilities. These processes must not restrict choice or stifle innovation by requiring that the adult’s needs are met by a particular provider, and must not place undue burdens on people to provide information to the local authority.

In the same vein, at para 12.24 the guidance states:

Local authorities should not design systems that place a disproportionate reporting burden upon the individual. The reporting system should not clash with the policy intention of direct payments to encourage greater autonomy, flexibility and innovation. For example, people should not be requested to duplicate information or have onerous monitoring requirements placed upon them. Monitoring should be proportionate to the needs to be met and the care package. Thus local authorities should have regard to lowering monitoring requirements for people that have been managing direct payments without issues for a long period.

Evidence of a local authority being over-zealous in its requirement for documentary evidence of their expenditure was given by the former chair of the Commission for Social Care Inspection who cited an example a council that wrote a threatening letter to a direct payment recipient ‘because they had been unable to provide two KFC receipts’.[3]

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Misspending direct payments/personal budgets and repayments

Another way is to state that the direct payments/personal budgets have been misspent and require that they be refunded – because they have not been used to purchase the precise service specified by the authority.  For example:

  • an authority may have identified a need for a carer to have a ‘break – and the carer then uses the direct payment to help pay for a caravan holiday with the person for whom they care (as this is the type of ‘break’ that works best for her); or
  • an authority may have identified a need for a disabled person to have a community based activity – and he then spends the direct payment on a taxi fare to an activity (which is free).

In each case the local authority then demands the repayment of the money[4] as it was not spent on the precise need for which it was assessed (ie the carer having a break on their own; the disabled person paying for an activity).

There are a number of reasons why this approach is unattractive and arguably a breach of public law.

  1. It contradicts a key principle / purpose of direct payments/personal budgets: namely to provide personalised care – putting the carer/ disabled person in control of the way their needs are met. As the Statutory Guidance to the Care Act 2014 explains:

12.3 Direct payments … provide the platform with which to deliver a modern care and support system. People should be encouraged to take ownership of their care planning, and 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 3 approaches.

At para 12.4 the Statutory Guidance notes that the processes adopted by local authorities to manage direct payments ‘must not restrict choice or stifle innovation’ (a point reiterated at para 12.59 when emphasising that the use of pre-payment cards cannot be mandatory nor may they ‘limit choice and control’ as direct payments should ‘encourage flexibility and innovation’.

2018 guidance issued by the National Institute for Health and Care Excellence (NICE) suggests[5] that direct payment plans should be flexible to ‘accommodate changes to a person’s priorities, needs and preferences’ and that in order to facilitate this, local authorities should consider ‘agreeing a rolling 3‑monthly budget so that people can use their money differently each week’.

  1. There is a need in such cases for the authority to have identified clearly the outcome for which the direct payment is made. If the need for a ‘break’ is to enable the carer to de-stress / have a break from her usual routine – then a holiday with the disabled person may meet that need (particularly when the Care Act 2014 s1(3)(a) states that carers / disabled people must be assumed to be best-placed to judge their well-being).  In similar terms, if the need is for the disabled person to be able to socialise / address his sense of isolation, then the taxi fare to an activity he wants to attend will be an appropriate way of achieving this outcome.
  2. The care and / or support plan must be drafted in such a way that makes clear what is, and what is not, a permitted use of the direct payment and there must be evidence that the individual has had this explained to them and that they have understood any restrictions;
  3. Any restrictions on the use of the direct payments must be rational and ‘the minimum necessary for achieving the purpose for which the’ direct payment was made (Care Act 2014 s1(3)(h)).
  4. The care and/or support plan must be reviewed (at least annually). The local government ombudsman[6] has held it to be maladministration for a local authority not review a direct payment arrangement for 3 years and then to reduce it without a sufficiently detailed assessment (or without sufficiently cogent evidence and reasons to justify the reduction for the individual in question).

Although authorities are able to seek a repayment[7] of a direct payment in certain situations although 2009 guidance[8] stressed that:

repayment should be aimed at recovering money that has been diverted from the purpose for which it was intended or that has simply not been spent at all, or where services have been obtained from someone who is ineligible to provide them. It should not be used to penalise honest mistakes … .  Councils may wish to take into account hardship considerations in deciding whether to seek repayments.

In such cases it must be appreciated that most people receiving direct payments are not qualified accountants and many of them are struggling with multiple commitments and some have not insignificant intellectual impairments.  Councils therefore have a duty of care in such cases – to keep notify individuals if misunderstandings or errors (or excess balances[9]) arise and to take timely action to address such problems.  If the council fails to take action of this kind it must be prepared to accept some responsibility in such cases.[10]

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Terminating / suspending direct payments

The statutory guidance to the Care Act 2014 advises that ‘payments should only be terminated as a last resort’ and that ‘authorities should take all reasonable steps to address any situations without the termination of the payment’ (para 12.67). Where a decision is taken to cease making payments, authorities ‘must ensure there is no gap in the provision of care support’ and there should be a revision of the care and support plan, or support plan, to ensure that the plan is appropriate to meet the needs in question’ (para 12.68).

The ombudsman has held that it will in general be maladministration for a payment to be suspended without first establishing how the assessed care and support needs of the person for whom they are paid will be met when payments stopped (and whether it needed to make direct provision).[11]

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[1] The legal position in relation to the parents of disabled children is little different – see Local Government Ombudsman complaint against Kent County Council No. 14 015 230 7 June 2016.
[2] Complaint No. 16 012 715 against Haringey LBC 12 June 2017 (para 36)
[3] A comment by Denise Platt, chair of Commission for Social Care Inspection (CSCI) in G Carson, ‘Dirty hospitals are important, but excuse me!’ Community Care Journal, 5 January 2006 p5.
[4] The Care Act 2014 s33(3) and the Children Act 1989 s17A (and the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 reg 7(1)(c)) requires that a direct payment be spent on services to meet the individual’s assessed need.
[5] NICE People’s experience in adult social care services: improving the experience of care and support for people using adult social care services NICE guideline [NG86] (2018) para para 1.3.11.
[6] Complaint No. 16 016 423 against Cornwall Council 7 August 2017.
[7] Care Act 2014 s33(5).
[8] Department of Health, Guidance on direct payments for community care, services for carers and children’s services England (2009) paras 245–247 – the Statutory Guidance is silent on this question.
[9] Complaint No. 17 015 934 against Kent County Council 13th August 2018.
[10] See for example Complaint No. 17 013 204 against Poole Borough Council 4 September 2018.
[11] Complaint No. 17 006 568 against Redbridge LBC 10 April 2018.