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Discussion Document - Policy and Practice Guidance to support the...
Discussion Document - Policy and Practice Guidance to support the

Community Care, Carers and Children's Services (Direct Payments)

(England) Regulations [2002].

ADSS welcomes the opportunity to respond to the consultation period on

the new Policy and Practice Guidance to support the Community Care,

Carers and Children's Services (Direct Payments) (England) Regulations

[2002]. In general terms we found the draft guidance to be very

positive. We have highlighted some key points initially and then

commented on the two documents in more detail.

- We welcome the changes which should ensure that direct payments are

offered to all individuals who are potentially eligible to receive them.

We place great importance on the choice and flexibility that direct

payments can bring and strongly believe that this option should be

available to everyone.

- We welcome the guidance on making jointly funded payments with Health

but feel that an opportunity has been missed for placing a duty on

Health to fund this, through a direct payment, leaving it open for them

not to do so.

- Some direct payment users have indicated, through the consultation

processes, that they would welcome the opportunity to employ close

relatives, particularly in emergency situations. However, although we

may support some individuals to employ close relatives when no

alternatives are available, we feel the guidance should state that this

remains an exception and close relatives should not be employed as a

rule, as we share the concerns of those organisations of disabled people

who wish to promote the independence of the disabled person.

- Although we view direct payments positively, we have difficulty in

seeing how they will work for short term periods, such as rehabilitation

after hospital discharge and feel that the guidance does not cover this

new area, in sufficient detail or with clarity.

- One of the things which the policy and practice guidance does not deal

with is in relation to performance indicators. You will be aware at

the current time that the performance indicator for intensive homecare

specifically excludes direct payments in calculating the authority's

performance against this indicator. Clearly we would see this as a

disadvantage to the take up of direct payments as currently many of the

people using the service would meet the criteria for this performance

indicator, i.e. in excess of 10 hours a week with 6 or more visits.

- We have discovered that the charging issue is equally problematic for

all local authorities. It would be particularly helpful to have clear

guidance on how direct payments should be treated in terms of financial

assessment. In addition to this we believe that there maybe particular

cases in relation to people who have received compensation for their

injury or accident who maybe need to be dealt with in a different way.

Again we would welcome further guidance in this area.

- We would stress the importance of direct payments being seen to

promote independence within a social model of disability and not being

used to reinforce impairment specific views of groups of disabled

people, e.g. people with learning difficulties, older people etc.

1. The rest of this response is divided into the two sections:

Response to the Draft Policy Guidance and Response to the Draft Practice

Guidance. It will be indicated at the beginning of each paragraph,

which section of the Guidance is being referred to.

1.1 Introduction (Paragraphs 1-4): ADSS welcomes the introduction of

local councils having not just a power, but a duty to make direct

payments. The guidance suggests that direct payments should be offered

to everyone who is eligible and will impact on clients already in

receipt of services as well as on new referrals. However, more

structured guidance would be welcomed on timescales to implement these

arrangements, ensuring direct payments are offered at each assessment

and review, support in freeing up resources from in-house provision and

block contracts, and local councils and support services coping with the

volume of work in offering direct payments to everyone.

1.2 Scope of the Act (Paragraphs 9-13): One group who are excluded from

using direct payments are those on section 17 leave under the Mental

Health Act 1983. We recommend that direct payments should be available

at this time as part of the rehabilitation process and to assist in

discharge planning.

1.3 Requirement to make direct payments (Paragraphs 14-15): Councils

have a duty to make direct payments but this does not encompass a duty

on Health and other agencies to jointly fund, where appropriate. We

recommend this should be a duty, rather than a power, due to our

experience of past difficulties in achieving jointly funded packages.

1.4 Ability to Manage (Paragraphs 16-17): The Guidance states a

presumption should be made that a person will (with assistance if

necessary) be able to manage, unless there are compelling reasons

showing otherwise. Councils will no longer have to justify why a person

is willing and able, as this will now be presumed. We see this change as

very positive.

1.5 Close Relatives (Paragraphs 22-23): Regulations prevent people using

direct payments to secure services from their partner or a close

relative living in the same household. However, the definition of a

close relative is not 'all inclusive'. For example, it includes

'grandparent' but not 'grandchild' and it includes 'aunt' and 'uncle'

but not 'niece' and 'nephew'. It is recommended that this definition

becomes an example list, rather than an exhaustive list.

1.6 Currently the relationship between the direct payment recipient and

their close relative is referred to in the guidance. However, the direct

payment recipient may now be the parent or the carer of the person for

whom services are intended. Therefore the relationship which needs to be

considered is the one between the person for whom services are intended

and their close relative.

1.7 Direct payments for healthcare (Paragraphs 33-34): The Guidance

promotes jointly funded direct payments and suggests ways in which

making these is possible. However, we suggest the regulations should

place a duty, rather than a power on Health to fund these payments, as


1.8 Direct payments for young disabled people (Paragraphs 41-46): A

presumption is made that all young people will have the capacity to

receive direct payments, which may not necessarily be the case. We feel

that it should be stated at this point in the guidance, that planning

for direct payments should begin from year 9, through the transitions


1.9 Purchasing intimate care for a disabled child using a direct payment

(Paragraph 54): We agree that 'local councils may wish to encourage

parents to give greater weight to the child's views' but see the child's

views as an essential component in making direct payments work

successfully. We therefore suggest 'local councils should ensure that

parents enable their children's views to be recognised and acted upon,

where appropriate'.

1.10 Short term breaks (Paragraph 55): We are not clear on the meaning,

in this context of 'established voluntary agency' and would recommend

that this is revised to 'registered voluntary agency'.

1.11 Criminal record checks (Paragraphs 56-61): The guidance refers to

criminal record checks for parents employing staff to care for their

disabled children. However, there is no mention of checks for adult

direct payment users or guidance around supporting vulnerable adults.

The time taken to get criminal record checks completed makes it

difficult to get packages set up over a short time period. Setting up

direct payments will usually take several months.

1.12 The guidance states the potential employee will usually pay the fee

for the criminal record check. We would question whether this is

realistically likely to happen for a job of this type, in an area of

high employment. To encourage employment of staff into this area, we

would recommend that the fee is usually paid by the local council.

1.13 We recommend that paragraphs 55 to 62 are reordered in the

following way: Criminal record checks, Short term breaks, then Limits

to residential accommodation.

1.14 Transition to adulthood for the disabled child (Paragraphs 63-67):

We recommend that the last sentence of paragraph 63 is revised to read

'Where there is a difference of views between children and their

parents, the local council should work together with the whole family to

try and resolve any dispute.' Paragraph 65 recommends that the

Transitions Plan should be used to 'inform decisions made about direct

payments to young disabled people.' We suggest the meeting should be

used to 'inform families about the choice and flexibilities that direct

payments can bring.'

2 Response to Draft Practice Guidance

2.1 Support Services (Paragraphs 9-19): We feel the guidance places an

important emphasis on the role of the support service in developing and

maintaining a successful scheme. The guidance places an onus on local

councils to carry out risk assessments for direct payment users and to

share these with the user, to enable them to develop their own health

and safety policies. However, further guidance and clarity is required

on responsibilities regarding health and safety with regard to disputes

which may arise between the council and the user, and the council's

overall duty of care. We see peer support as essential to making direct

payments work and developing a variety of support appropriate to

different care groups is essential. However, an assumption is made that

users will want to meet and support each other, whereas this may not

always be the case.

2.2 Assessment for direct payments (Paragraphs 20-32): An example

(number 4) is given of making direct payments for a short term period of

rehabilitation after a hip replacement operation. Although this shows

how direct payments could work where a neighbour is willing to be

employed for a temporary period, it is difficult to see how this could

work in other circumstances, for example, recruiting staff from a

hospital bed or finding temporary staff in an area of high employment.

We feel that the implications of making direct payments for short term

periods have not been thought through and that in many cases, they may

not be viable. We suggest a more helpful example may be a person with an

acquired injury who will have long term needs on discharge from hospital

and will have time to make the decision regarding whether direct

payments are the right option for them.

2.3 Paragraph 23 then goes on to state 'The potential recipient also

needs time to think through the implications of taking on direct

payments and to consider whether this is what he or she wants.' This

directly contradicts example number 4, where the person has little time

to consider whether direct payments are right for her. Paragraph 25

refers to the possibility of making the payment directly to a third

party, when someone needs assistance with financial management. We

suggest these circumstances appear more like indirect payments and that

the two should not be confused.

2.4 Deciding how direct payments are to be used (Paragraphs 33-36): The

guidance suggests that local councils may set conditions on direct

payments to ensure that a person's needs are met appropriately. However,

it is not always possible to establish whether the user is planning to

employ 'an appropriate person' and therefore it may not be possible to

set conditions until an inappropriate person has already taken up


2.5 Calculating the amount of direct payment (Paragraphs 40-42): We feel

that direct payment users should not be subject to VAT on personal care.

It is difficult to consider best value when the local council could

purchase the same care from an agency which the direct payment user is

planning to use, without being subject to the VAT charges, whereas the

direct payment user will be subject to the VAT and the local council

will be expected to provide for this.

2.6 Monitoring and reviews (Paragraphs 44-51): Further guidance is

sought from CIPFA on managing and monitoring bank accounts for direct

payments. Users have commented that it is simpler to have one account

for meeting their care needs but this account could have income from

direct payments, ILF, health, personal contributions and charity

payments etc. Local councils need to have clear auditing arrangements

which can be difficult when income is from a number of sources.

2.7 When difficulties arise (Paragraphs 52-57): An opportunity has been

missed to give clearer guidance on the direct payment user's and local

council's liabilities. We should ensure that control of the direct

payment is passed to the user but also have to take account of the

council's duty of care.

2.8 Direct payments to disabled adults (Paragraphs 68-71): Although we

support the proposal for making jointly funded health and social care

direct payments, an opportunity has been missed in making this a power

rather than a duty. Although we are willing to administer the payments

on health's behalf, we do not always have a willingness from health to

make these payments. Paragraph 70 is also misleading in implying that

health are able to offer direct payments.

2.9 Connexions (Paragraphs 83-84): We support the notion that the

concept of direct payments should be raised through Transition meetings

but would suggest that material needs to made available to the

Connexions Service placing importance on this process and giving

guidance on working in partnership with social services, parents and

young people using direct payments and the direct payments support



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