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8.8 Direct Payments

SCOPE OF THIS CHAPTER

This chapter details what Direct Payments are (money given to parents/carers or young people, by the Local Authority, to enable them to buy in support that the/their disabled child has been assessed as needing).

It covers the eligibility criteria and what they funding can/cannot pay for.

RELEVANT LEGISLATION AND GUIDANCE

Children Act 1989

The National Health Service (Direct Payments) Regulations 2005

DoH, Care and Support Statutory Guidance - Issued under the Care Act 2014

AMENDMENT

In July 2016, Section 7, Hospital Stays was added.


Contents

  1. What are Direct Payments?
  2. Eligibility
  3. Assessment of Need
  4. How Often are Direct Payments Made?
  5. Direct Payments Can be Spent on Employing a Personal Assistant (PA)
  6. Direct Payments Can also be Spent On
  7. Hospital Stays
  8. Direct Payments Can Not be Spent On
  9. Safeguarding Children
  10. Points to Consider
  11. Role of the Support Service Provider
  12. Role of Payments Team
  13. Decisions Not to Make Direct Payments
  14. Monitoring and Review of Direct Payments
  15. Reducing the Amount of Direct Payments
  16. Repayment and Recovery of Direct Payments
  17. Ceasing Direct Payments


1. What are Direct Payments?

A Direct Payment is money given to children aged 16 years or over who have a disability and to parents/carers aged 16 or over of young people, by the Local Authority, to enable them to buy in support that their child has been assessed as needing, instead of the authority providing that support through their own services. Direct Payments do not affect benefits.

"The purpose of Direct Payments is to give the recipients control over their own life by providing an alternative to social care services provided by a local council. A financial payment gives the person flexibility to look beyond "off the peg" service solutions. This will help increase opportunities for independence, social inclusion and enhanced self-esteem."

Direct Payments can be made for special educational provision, health care and social care provision.

Local Authorities must offer the option of Direct Payments for in place of services currently being received. For both education and social care the Local Authority must be satisfied that the person who receives the Direct Payments is able to manage the direct payments either by themselves or with whatever help the authority thinks the applicant or nominated person will be able to access; will use them in an appropriate way to meet the needs in question and that they will act in the best interests of the child or young person.

Regulations governing the use of Direct Payments for special educational provision place a number of additional requirements on both Local Authorities and parents before a Direct Payment can be agreed. These include requirements to consider the impact on other service users and value for money and to seek agreement from educational establishments where a service funded by a Direct Payment is delivered on their premises.

Direct Payments for health require the agreement of a Care Plan between the Clinical Commissioning Group and the recipient.


2. Eligibility

Those who have been assessed as meeting the criteria for disabled children’s services aged 16 or over. Children and young people who have Education, Health and Care Plans and their parents have the right to request a Personal Budget, which may contain elements of education, social care and health funding, and may be delivered by way of Direct Payments. Under the Children and Families Act 2014, this covers those aged 0-25 having special educational needs and disabilities.

Direct payments are available if a child or young person is disabled and aged 16 or over or is a carer or parent aged 16 or over for a child with disabilities. No-one can be forced to have a direct payment. Direct payments can also be made to a willing and appropriate person on a disabled person’s behalf if they lack the mental capacity to agree to and manage direct payments themselves.

Direct payments cannot be used to pay for services from a spouse, partner or a close relative living in the household unless the local authority consider it is necessary to do so. However, a direct payment can be used to employ a relative if they are not living in the household.

A child or young person who meets the DDA definition of disability. The Act defines a disabled person as a person with "a physical or mental impairment which has a substantial and long-term adverse affect on his ability to carry out normal 'day to day' activities."

The arrangements for Direct Payments will be included in the child’s/young person’s Education, Health and Care Plan, following an Education, Health and Care Needs Assessment. See Children and Young People Aged 0 -25 with Special Educational Needs and Disabilities Procedure.

The person who is administering the payment must:

  • Have Parental Responsibility for the child/young person and provide a substantial amount of care (N.B. This excludes Local Authority foster carers and private foster carers from receiving a Direct Payment);
  • Give consent to having a Direct Payment rather than a direct service;
  • Be able to manage the Direct Payment (with assistance if necessary);
  • Ensure that the use of the Direct Payment safeguards and promotes the child's welfare;
  • Not be subject to certain mental health and criminal justice legislation which limits the choices they can make.

16/17 year olds who are managing their own direct payment must:

  • Consent to having a Direct Payment;
  • Be able to manage or direct the use of the payment, with support as needed.

A Direct Payment cannot be used:

  • For a service that the child/young person has not been assessed as needing;
  • For a service that the carer has not been assessed as needing;
  • To employ a relative living in the same household as the child;
  • To purchase full time accommodation i.e. a period of more than 28 days as a block, or more than 120 days in any one year;
  • To meet a health need that is the responsibility of the Health Services;
  • To meet a housing need;
  • To purchase a package of care that is not sustainable in the community;
  • To fund childcare costs to enable a parent to work.  However, in this case NCC may be able to provide support with costs of care for a disabled child via the DCATCH scheme.


3. Assessment of Need

The possible outcome of the assessment in terms of services offered must always be discussed with the TM before being discussed with the family. This is to ensure, as far as is possible that there is a consistent response from the whole Department to the final proposed service plan. The following elements should be included as part of a Child and Family Assessment which will lead to Direct Payments (or other service provision).

  1. Assessment;
  2. The decision to make a Direct Payment should be informed by an assessment of need and the analysis will need to consider;
    • The parent's ability and willingness to manage a Direct Payment;
    • The parents understanding of safeguarding needs and potential risks in relation to selecting a carer for their child. (Also apply to any 16/17 year olds who wish to manage their own payment, in terms of their understanding of their own safeguarding needs);
    • For 16/17year olds: an account of how they will be involved in directing and choosing how the payment is used;
    • The level and amount of service needed, with clear and detailed arguments to support any recommendation that a higher than baseline level is required.

The needs of the carers, can be recorded under the dimensions of the family functioning in the assessment. Carers assessments should not be conducted in isolation.

ASSESSING LEVEL OF SERVICE REQUIRED

The child/young person/family may choose to use the Direct Payment either to pay a carer to provide an over-night short break, or to pay a carer to provide an extensive and more tailored support package which may or may not include the child spending nights away from home.

The Team Manager must agree and countersign the assessment and agree the authorisation form (CH/CDP1) which costs the proposed package. The assessment and CH/CDP1 should be included.

Once agreed the proposal, the completed DCP1 form is authorised by the CSM (CDS) and uploaded onto Framework. The social worker will be notified when this has happened. The social worker then creates and authorises services episode to payments section.


4. How Often are Direct Payments Made?

Direct Payments are paid in advance into a bank or building society account specifically set up for this purpose, as a one off payment or on a 4 weekly basis. If the direct payment is assessed as being needed at key times e.g. school holidays, then payment will be made accordingly.


5. Direct Payments Can be Spent on Employing a Personal Assistant (PA)

  • To take the young person/child into the community to access an activity, support inclusion, going to a club etc;
  • To work with the child directly within the home, to give parents and siblings a break;
  • To stay overnight to give a short break;
  • Or a registered childminder or child home carer (for children aged under 8).


6. Direct Payments Can also be Spent On

  • Using an approved agency to provide direct care to meet your child/family's needs;
  • After school clubs and holiday play schemes;
  • Residential overnight breaks;
  • By agreement with the CDS Team Manager/Direct Payments, Team Manager any service which meets the assessed need for a short break;
  • Special educational provision specified in an Education, Health and Care Plan.


7. Hospital Stays

When a child or young person under 16 yrs needs to go into hospital, the parent, carer or the person managing the Direct Payment, should advise the local authority straight away to discuss the continuation of the payment.

It is possible that the payment will continue for a time-limited period, if only to allow for the person managing the Direct Payment to ensure that any contractual obligations around termination of the support can be met. However, there might also an issue of continuity of care post-discharge to consider in some instances.

Where a young person is 16 yrs or older and in receipt of Direct Payments, hospitalisation may not necessarily mean that the Direct Payments should cease. Guidance advises that consideration should be given by the local authority, the carer, the holder and NHS Trust to as to how the payments might be used to meet non-health needs or to ensure that the employment arrangements can be maintained. For example, the holder may prefer some personal care tasks to be undertaken by the carer rather than hospital staff. However, the personal care and medical input need to be tailored so as not to interfere with the medical treatment. (Terminating or suspending the carer's employment may lead to a delay of continuity of care and a delay in discharge).

In instances where the authorised or nominated person requires hospital treatment, the local authority must conduct an urgent review to ensure the holder continues to receive the care and support they need. This might include the duties to be carried out by a temporary nominated person, or through short-term authority arranged care/support.


8. Direct Payments Can Not be Spent On

  • Duplication of service, e.g. Residential or Outreach support services;
  • For a service that the child/young person has not been assessed as needing;
  • For a service that the carer has not been assessed as needing;
  • To employ a relative living in the same household as the child;
  • To purchase full-time accommodation;
  • To meet a health need that is the responsibility of the Health Service;
  • To meet a housing need;
  • To purchase a package of care that is not sustainable in the community;
  • To fund childcare costs to enable a parent to work;
  • Employing someone without Disclosure and Barring Service and CPR checks or references, or someone subject to a drug or alcohol treatment requirement, youth rehabilitation order or released on licence;
  • Permanent residential accommodation, though they can be used for occasional short breaks, if the local authority agrees, for up to 120 days in any 12 month period. (Note: where two periods of short – term care are 4 weeks or less apart, then the cumulative total of the stays should be added and not exceed 4 weeks if the stay is to be funded by Direct Payments).


9. Safeguarding Children

Councils may need to withhold a Direct Payment if the suggested arrangements are likely to pose a risk to the child

  • It is considered that not to obtain checks would place the child at risk (some evidence would be needed).

The parent wishes to employ someone who had failed a DBS check

The social worker must discuss with the family the valuable part that DBS and framework checks, references and an interview all play in ensuring that the person employed is wholly suitable for caring for the individual child/young person.

The social worker should actively encourage the family to take up DBS checks.

All potential Direct Payments recipients will be offered a DBS check on potential carers/Personal Assistants (including relatives). These will be organised by the social worker and will be paid for by the council. The CSM (CDS) is the DBS signatory to whom the completed checks should be sent (Form: CH/CDP3).

Potential carers will be asked to give signed consent to Framework checks and to the revealing of any relevant information to the potential employer. Checks must be carried out by the social worker before the carer can start working with the child (Form: CH/CDP2).

If the parent or young person does not want to take up a DBS check in all cases, the parent/young person must sign the disclaimer form and the original signed form should be uploaded on to Framework with a case note explaining the reasons.

9.1 Use of Agencies

Direct Payments will be promoted for the use of individual carers or personal assistants, or care agencies

  • Any agency used by the family for services delivered to the disabled child or young person must be registered with the Care Quality Commission to provide domiciliary services to children.
  • There is a contract between the Council and the Direct Payment recipient, as with the employment of a PA. There will also need to be a written contract between the Direct Payment recipient and the agency for the services provided. There does not need to be a contract between the Council and the agency, nor between the family and the carer employed by the agency. The agency should cover all DBS checks and other employment issues.

9.2 Direct Payments For 16 and 17 Year Olds

  • One of the aims of the Direct Payments legislation is to increase the independence of 16 and 17 year olds by allowing them to manage their own Direct Payments, most often with some support from their parents.


10. Points to Consider

Direct Payments allow parents and young people greater choice flexibility and control, to employ their own workers at times convenient to them and in the way they wish, to provide an individual service to meet their needs.

10.1 Employing relatives as carers/personal assistants

Using relatives as paid carers to meet the assessed need is legal, and is allowed in the Children's Direct Payments scheme. Relatives in the same household are not allowed by law, (except in very exceptional circumstances at the discretion of the Council) and are not allowed under Nottinghamshire's scheme. Employing a parent (or other person with parental responsibility who lives at a different address from the child) is also not allowed.

The following applies to the employment of relatives, and should be discussed with any family thinking of employing a relative:

  • Relatives must be employed formally as any other carer would be;
  • Payments will be monitored in exactly the same way and the parent will be expected to keep records as with other carers.

All the responsibilities of an employer still fall to the parent. E.g. it would still be advisable to take out employers' insurance in case the carer makes a claim against the parent as employer.

10.2 Transferring between a Direct Payment and a direct service

There will be service users who currently receive a direct in house service who wish to transfer i.e. give up that service and have a Direct Payment instead. Assuming there is no request for an increase in services either in type or amount, this transfer should be able to take place without the need to demonstrate eligibility again.

Any such change will need to be agreed at a CIN review meeting, specially convened if necessary. Form CH/CDP1 should be completed fully by the social worker for authorisation by the DP team/CSM dependant on the level requested.

There may also be people who wish to transfer in the other direction and move from a Direct Payment to an in-house service. direct service. Again if there is no increase in type or amount of service involved, there should not be a need to prove eligibility for the in-house/direct service. However, some services may not be readily available, so the change will need to be agreed at a CIN review meeting as above.

For those families eligible for an over-night breaks service and wishing to move from a Direct Payment to an in-house service. A Child in Need Review should be convened (See Short Breaks (away from home) Procedure)


11. Role of the Support Service Provider

Support will be available from several support providers who will work with those adults, children, young people and their families who are Direct Payment recipients in the County. Families who wish to take up this support should be referred to the provider by their social worker completing a Referral Form which is sent by email direct to the organisation. A list of accredited providers is available on the Nottinghamshire County Council Public Website.

The role of the Support Officer will be to offer advice and support to Direct Payment recipients on all issues relating to the management of the Direct Payment. These issues include:

  • Offering advice and assistance with the recruitment, selection, management and retention of personal assistance staff;
  • Assisting with Departmental monitoring requirements where necessary;
  • Explaining and giving support with the elements of managing a personal assistance service, and being an employer, e.g.:
    • Health and safety;
    • Insurance;
    • Payroll service;
    • Personnel records.

The Support Provider offers a payroll service (a service which calculates correct tax and NI payments for the employer.) The Direct Payment recipient may choose to use this service, or operate their own payroll if they are confident and competent to do so. Payroll support can be offered, and will be funded by the Department, the cost will be calculated and added to the DP payment (four weekly) and the recipient will pay the provider directly from their DP account.


12. Role of Payments Team

The Payments team are responsible for:

Keeping a data base of all Departmental Direct Payment recipients, including the amount of each Direct Payment authorised and current payments. The Payments team puts each new Direct Payment recipient on the system and gets details about their bank account directly from them, so payments can be made

Initiating the first and subsequent payments to the recipient once authorisation by the appropriate manager has been given

 Making and recording payments for employers' insurance costs to FISH insurance

  • Receiving queries directly from Direct Payment recipients about any of these processes;
  • Forms.


13. Decisions Not to Make Direct Payments

Where the Local Authority decides not to make Direct Payments it must inform in writing the child’s parent or the young person of its decision and reasons and the right to request a review of the decision.


14. Monitoring and Review of Direct Payments

The Local Authority must monitor and review the use of Direct Payments by the recipient at least once within the first three months of Direct Payments being made, and when conducting a review or a re-assessment of an Education, Health and Care Plan. In addition, a recipient may make a request for the Local Authority to review the making and use of Direct Payments and the Local Authority must then consider whether to carry out a review.

When carrying out a review, the Local Authority must consider whether:

  • It should continue to secure the agreed provision by means of Direct Payments;
  • The Direct Payments have been used effectively;
  • The amount of direct payments continues to be sufficient to secure the agreed provision;
  • The recipient has complied with their obligations on the use of the Direct Payment.

Following a review the Local Authority may:

  • Substitute the person receiving the Direct Payments with a nominee, the child’s parent or the young person, as appropriate;
  • Increase, maintain or reduce the amount of Direct Payments;
  • Require the recipient to comply with either or both of the following conditions;
    • Not to secure a service from a particular person;
    • To provide such information as the Local Authority considers necessary.
  • Stop making Direct Payments.


15. Reducing the Amount of Direct Payments

Where the Local Authority decides to reduce the amount of Direct Payments, it must provide reasonable notice to the recipient, and must set out in the notice the reasons for its decision. 

The Local Authority must reconsider its decision, where requested to do so by the recipient, but is not required to undertake more than one reconsideration of a decision. When conducting its reconsideration, the Local Authority must consider the representations made by the recipient (and where the recipient is a nominee, any representations made by the child’s parent or the young person) and must then provide written reasons to the recipient (and to the child’s parent or young person, where the recipient is a nominee) of its decision following the reconsideration. The Local Authority may reduce Direct Payments following reasonable notice despite the fact that a request for reconsideration has been made.


16. Repayment and Recovery of Direct Payments

The Local Authority may require the recipient to repay part or all of the direct payments, where:

  • The circumstances of the child or young person have changed in a manner which has an impact on the appropriateness of the agreed provision;
  • All or part of the Direct Payments have not been used to secure the agreed provision;
  • Theft, fraud or another offence may have occurred in connection with the Direct Payments;
  • The child or young person has died.

It must give notice in writing to the recipient, setting out the reasons for the decision, the amount to be repaid and a reasonable timescale within which the amount must be repaid.

The Local Authority must reconsider its decision where requested to do so by the recipient (but is not required to undertake more than one reconsideration of a decision). When conducting its reconsideration, the Local Authority must consider the representations made by the recipient (and where the recipient is a nominee, any representations made by the child’s parent or young person) and must then provide written reasons of its decision following the reconsideration to the recipient (and to the child’s parent or young person, where the recipient is a nominee).

The Local Authority may only seek repayment of any portion of the Direct Payments that has not already been spent on the agreed provision.


17. Ceasing Direct Payments

The Local Authority must stop making Direct Payments if:

  • The recipient has notified the Local Authority in writing that he or she no longer consents to receive the Direct Payments;
  • The recipient ceases to be a person to whom a Direct Payments may be made;
  • Following a review, it appears to the Local Authority that;
    • The recipient is not using the payment to secure the agreed provision;
    • The agreed provision can no longer be secured by means of Direct Payments.
  • At any point the Local Authority becomes aware that the making of Direct Payments is;
    • Having an adverse impact on other services which the Local Authority provides or arranges for children and young people with an Education, Health and Care Plan which the authority maintains; or
    • No longer compatible with the authority’s efficient use of its resources.
  • It has taken reasonable steps to ascertain whether the young person consents to Direct Payments and the young person has not notified the Local Authority of their consent.

Where the Local Authority decides to stop making Direct Payments, the Local Authority must first give notice in writing to the recipient setting out the reasons for its decision.

The Local Authority must reconsider its decision where requested to do so by the recipient (but is not required to undertake more than one reconsideration of a decision). When conducting its reconsideration, the Local Authority must consider the representations made by the recipient (and where the recipient is a nominee, any representations made by the child’s parent or young person) and must then provide written reasons of its decision following the reconsideration to the recipient (and to the child’s parent or young person, where the recipient is a nominee).

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