Community Care, Carers and Children's Services (Direct Payments)
(England) Regulations .
the new Policy and Practice Guidance to support the Community Care,
Carers and Children's Services (Direct Payments) (England) Regulations
. In general terms we found the draft guidance to be very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
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
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,
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