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Professional Deputies and Direct Payments

Community Care Law

If your client receives care at home, you may be entitled to request a Direct Payment from Health or Social Services. This means you would receive a cash payment to allow you to arrange and pay for your client’s care package, rather than Health or Social Services commissioning and paying for your client’s care package. Direct Payments allow you flexibility and control to get the best package of care to meet your client’s needs.

The right to a Direct Payment

Your client who lives at home must be eligible for support from Health or Social Services. There are some limited circumstances in which a request for a Direct Payment can be refused. The money has to be spent on meeting your client’s assessed, eligible care and support needs. You will usually be required to operate a dedicated Direct Payment bank account and submit returns to Health or Social Services on a monthly or quarterly basis.

How much will the Direct Payment be?

The amount of the Direct Payment will be determined by the assessment of your client’s eligible needs. If Social Services agree they have a legal duty to meet your client’s needs, they will set a social care Personal Budget indicative figure as part of the care and support assessment and support planning process. If however, it is the local Clinical Commissioning Group that have a legal duty to meet your client’s needs, they will set a Personal Health Budget indicative figure as part of the health and wellbeing assessment and support planning process.

Can I challenge a personal budget figure?

The indicative personal budget figure must be sufficient to cover the actual cost of meeting your client’s eligible needs. You can challenge an inadequate personal budget figure if the Direct Payment will be insufficient to meet your client’s eligible support needs. If your client receives social care Direct Payments, a financial assessment will be undertaken to assess the weekly contribution you need to pay from your client’s income towards their care package. If your client is eligible for NHS Continuing Healthcare, there will be no financial assessment as NHS services are not means-tested.

Topping up Direct Payments

Health and Social Services only have a duty to meet your client’s needs and not your client’s preferences. This may mean that the Direct Payment doesn’t cover all of the care that you have put in place for your client. If there is still a shortfall between the actual cost of care and the amount paid by Health or Social Services after you have challenged the personal budget calculation, it may be necessary to consider providing a top up. A top up may be the only way to ensure there is a sustainable care at home package for a client complex needs.

It is lawful and quite common to have a top up with social care Direct Payments. It is unlawful for the NHS to require a top up for a person who receives a Personal Health Budget. You will need specialist advice about how to navigate the top up issue for a client who receives NHS CHC.

Direct Payments and employing family members

Both Health and Social Services have rules that prevent Direct Payments being used to pay family members living in the same household as the cared for person. This is unless there are “exceptional circumstances”. Guidance issued at the start of the Coronavirus pandemic introduced some flexibility and as Professional Deputy you will need to ensure your client’s case fits within this Guidance or meets the relevant criteria for exceptional circumstances.

How we can help you

Our experienced Community Care Law team can assist you in making a public law challenge in relation to any negative decision made about your client’s Direct Payments or if the amount of the Direct Payment is insufficient to meet your client’s needs.

For expert advice on Direct Payments, contact our Services for Professional Deputies team today on 01273 609911, or email deputyservices@ms-solicitors.co.uk.

Martin Searle Solicitors, 9 Marlborough Place, Brighton, BN1 1UB
T: 01273 609 991 info@ms-solicitors.co.uk

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