Luke Clements

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

Direct Payments

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Briefing by Luke Clements ~ updated November 2017.  For corrections or suggested additions please contact anjames57@gmail.com

 

The 2014 Act specifies how an entitlement to a 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 in formal guidance[1]) in the Part 11 Code of Practice (Miscellaneous and General) which makes it clear, when discussing the ordinary residence deeming rule (page 33), 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.[2]  The complexity of the resulting scheme has caused the English Government to postpone such payments until 2020:[3] the Welsh Government appears to have no such concern.

The other major difference between the legislative arrangements for Direct Payments in England and Wales is their unavailability in Wales for people eligible for NHS Continuing Healthcare funding – a difference that the Welsh Government intends to retain.[4]

 

Welsh Independent Living Grant (WILG) scheme.

Although payments from the Independent Living Fund (ILF) ceased in England in June 2015 these have continued – in effect – in Wales for the short term through the WILG scheme.[5]  The existing ILF entitlements of disabled people will continue to be paid from the WILG until April 2018. From this date WILG recipients will be reassessed by local authorities ‘to identify the outcomes they are seeking to achieve and agree a package of support to meet these’ such that by 31 March 2019 ‘all recipients having their support needs met through a package provided by their local authority’.

 

 

[1] The Explanatory Memorandum to The Care and Support (Direct Payment) (Wales) Regulations 2015 [21 October 2015] (para 4) notes that ‘Direct payments may be used for any identified need for care and support which a local authority is to meet.  This includes community care and support and short term and long term residential care and support.’
[2] 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.
[3] 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
[4] The First Minister (Carwyn Jones ) First Minister’s Questions 25 March, 2014 – see National Assembly’s Record of Proceedings.
[5] 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.