Luke Clements

Luke Clements is the Cerebra Professor of Law at Leeds University and is a solicitor.

Direct Payments

Briefing by Luke Clements ~ updated December 2019.  For corrections or suggested additions please contact anjames57@gmail.com

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The 2014 Act specifies how an entitlement to a social services funded direct payment arises, how the amount of a direct payment is to be calculated and how the payment is to be administered.  The detail of the scheme is spelled out in regulations – The Care and Support (Direct Payments) (Wales) Regulations 2015.  Section 53(9) of the Act makes a material change to the previous law – in that it enables direct payments to be used to purchase care and support from (among others) ‘the authority which made the payment’.  Guidance on the scheme is provided in the Part 4 Code of Practice (Meeting Needs) – although, disappointingly this is less detailed than the guidance under the previous legislative regime.

The Act extends direct payments to cover residential care costs.  There is little explanation as to how this will work in practice.  In fact it is only acknowledged in the Part 11 Code of Practice (Miscellaneous and General) which makes it clear, when discussing the ordinary residence deeming rule (page 31), that this is the case (namely by stating that the rule ‘also applies where a person takes a direct payment and arranges their own care and support’).  The potential problems that will arise by permitting direct payments to be used for long periods of residential care, would appear to outweigh any benefits.[1]  The complexity of the resulting scheme has caused the English Government to postpone such payments until 2020:[2] the Welsh Government appears to have no such concern.

 

Direct Payments and s117 Mental Health Act 1983

The 2014 Act s53(11) and Sch A1 provide for the making of direct payments to people who are eligible for support under s117.  The Care and Support (Direct Payments) (Wales) Regulations 2015 (SI 1815) reg 15 states that there is a duty to make such payments – subject to certain conditions being satisfied.

 

Welsh Independent Living Grant (WILG).

The Independent Living Fund (ILF) was closed in June 2015 and the funding devolved to English local authorities and the Scottish, Welsh and Northern Irish Governments.The WILG was set up in 2015 following a consultation exercise and gave the Welsh Government a period of moratorium to decide on how to proceed.

In November 2016, it was announced that the WILG would close in March 2019 and that all recipients would be assessed by their Local Authority for care and support under the Social Services and Well-being (Wales) Act (SSWBA) 2014 by March 2018.The #SaveWILG campaign spearheaded by Nathan Davies was successful in getting the Deputy Minister for Health and Social Services to announce a policy reversal in respect of the  WILG. She announced an ‘immediate pause’ to the winding down of the WILG to allow for revised arrangements – see http://www.lukeclements.co.uk/welsh-independent-living-grant-wilg-policy-reversal/

The revised arrangements offer an assessment to previous recipients of the WILG by an independent social worker. The outcome of the assessments and its implications for the future provision of social care for WILG recipients remains unclear.

 

NHS Continuing Healthcare (NHS CHC) and direct payments

A direct payment can be made if the person is jointly funded by social services and the NHS.  However the situation is different, in Wales, if the person is eligible for full NHS CHC funding.

Although direct payments for people receiving NHS CHC funding is legal in England, the Welsh Government has made it clear that it has no plans to replicate this in Wales.[4]

The Court has however held[5] that there is nothing in principle in the NHS Acts to preclude a health body from making direct payments to an Independent User Trust (IUT) which would then arrange for the health care needs of the person eligible for NHS CHC funding.

In relation to Direct Payments, the Welsh Government’s 2014 Framework guidance advises (paras 4.46 – 4.50):

  • … if an individual has existing DP arrangements, these should continue wherever and for as long as possible within a tailored joint package of care.
  • It is currently unlawful for Direct Payments to be used to purchase health care which the NHS is responsible.
  • Where an individual whose care was arranged via DPs becomes eligible for CHC funding, the LHB must work with them in a spirit of co-production.
  • Although DPs will no longer be applicable … this should not mean that the individual loses their voice, choice and control over their daily lives. Every effort should be made to maintain continuity of the personnel delivering the care, where the individual wishes this to be the case.
  • An individual in receipt of DP retains the right to refuse to consent to CHC assessment and /or care package …
  • In such cases, partner agencies must work together with the individual and their family/carers to ensure that the risks are fully understood and mitigated as far as possible.

 

 

[1] These problems include the potential uncertainty about the ‘ordinary residence’ of people who enter residential care using direct payments and the risk that such residents may be more vulnerable to demands by providers that they ‘top-up’ local authority payments.
[2] In January 2016 the English Government announced that it had decided to postpone the ‘national rollout of direct payments in residential care’ until 2020 – see www.local.gov.uk/web/guest/care-support-reform/-/journal_content/56/10180/7643648/ARTICLE
[3] Welsh Government Written Statement – Future Support Arrangements in Wales for Former Independent Living Fund Recipients: Rebecca Evans Minister for Social Services and Public Health 3rd November 2016.
[4] The First Minister (Carwyn Jones ) First Minister’s Questions 25 March, 2014 – see National Assembly’s Record of Proceedings.
[5] Gunter v SW Staffordshire PCT [2005] EWHC 1894 (Admin) 26/08/05.