Confusion over health budgets and health direct payments for people lacking capacity

I have had this enquiry in from an anxious parent:

“Despite caring for my son for 31 years with no problems concerning receipt of payments from Social Services and the ILF I have now been told that a Power of Attorney or Court Protection Order is required by our Health Trust in connection with payment of a Personal Health Budget for his care.

A solicitor has informed me that the first option is a no-go as he does not consider my son to have mental capacity to complete this, leaving a Court of Protection Order as the only option.

I am absolutely flabbergasted at this situation, especially having been told this will cost around £3,000.

When benefits are paid on the basis that the claimant needs the amount paid to live on and doesn’t include extra to save, it seems that responsibility for payment falls on me, my son’s main carer, who is unable to work due to the complex care he needs.

I would be very interested to hear any comments regarding this situation, in particular from anyone who has been in this situation.”

This is my response:

The advice is fundamentally incorrect, in my view, but for complicated reasons.      So stick with it if you want to save £3000!

First of all there is no way that a person in a position of parent for a person with undoubted incapacity, should ever have been GETTING Direct Payments from social services if the person on whom they were going to need to be spent lacked capacity to consent to having one, knowing what it meant – which was that the person with needs was letting the council off the purchasing hook, and taking charge of their own purchasing, and all the liability that goes with it. There is not a parent in this country with a son or daughter with significant disabilities who would actually accept that the son or daughter him or herself is really IN CHARGE. That was what was so amusing, with all due respect, about the admittedly well-intentioned In Control movement being called ‘IN CONTROL’ – because the common law has always treated it as too obvious even for discussion that a person lacking capacity cannot conceivably be regarded as being or made to take the consequences, of being in control of complex purchasing, or an employment liability. It was the person’s circle of support who was put in control by the national policy of rolling out direct payments regardless of mental incapacity issues, albeit for the best possible motives! A direct payment ALWAYS – even back to 1996, involved a person having capacity to consent.

From 2009 it was appreciated that this was causing difficulties and the status of Suitable Person was invented by the 2009 Regulations. This development meant that a person could be chosen or put themselves forwards, and then authorised by the council to take a sum of money in their own name for the benefit of the needy person. NOT, please note, in legal terms, on behalf of them, as would be the proper analysis, if the ‘managing’ person was merely HELPING a person with reduced but still fundamentally functional cognitive decision making capacity –  or if the managing person was a statutory agent for a person accepted to lack capacity. The regulations never went that far. These regulations constituted a formal set of rules about that whole question, which most councils (in my experience as a trainer) never got round to using properly, despite the obvious safeguarding implications.

HOWEVER – now that the Care Act and Health Budgets and direct payments for CHC are in force, both systems enable a person to be given the budgets to spend on another person, without formally being a deputy or an attorney.

The whole point of these systems is that a person need not incur the expense of deputyship or pretend that a person has got capacity to grant a power of attorney) in order to spend this type of care related money.

Any CCG saying otherwise, with respect, needs to read the governing regulations and get proper legal advice.

Anyone given this sort of a brush-off needs to write to the Health Trust and say that they do not believe that there is any justification under the National Health Service legislative framework (or to the council, mentioning the Care Act instead, if the person is getting a direct payment for social care or a split package) for insisting that a person needs the formal status of deputyship to have a direct payment; and that they believe that the regulations enable a person to be a person’s recipient of the budget, if the CCG [or council] thinks after proper consideration that the person is suitable. If the paying organisation regards the applicant as unsuitable, however, the organisation needs to give the applicant evidence-based rational reasons that are defensible in public law terms – as their stance, requiring deputyship or power of attorney – whether deliberately adopted or not, risks defeating the very purpose of the health budget/social care direct payment regulations…

But – please note, for comprehensiveness, that Deputyship doesn’t cost THAT much money either, even if one did apply for it via the Court. The benefit of going in for it would be that the applicant would then be legally authorised to spend other assets belonging to the incapacitated person and also sign contracts or tenancies in their name which is not what happens when one is merely authorised to spend the person’s Health budget or Personal Budget – because in THAT situation, one always signs contracts as principal ie in the recipient’s OWN name and not legally “on behalf of” the incapacitated person, using the direct payment to discharge the liability. If such an authorised person does a runner or misuses the money, then the contracting provider of a service, or the landlord, and even the paying council or CCG has direct rights of recovery against the dodgy person the organisation authorised, which is SO much better than treating the needy person as responsible for what the authorised person has gone and done with the money.

We have seen the same sort of issues arising with regard to tenancies for people put into Supported Living, in the undoubted interests of normalising their lifestyles but also saving councils money too, on the housing element of care – no attention paid to the legal niceties of the difference between a council’s placement and an individual’s contract of tenure.

NB ILF was different, by the way, because it was a grant from the government’s trust fund, and it could always be paid to a person FOR someone else – which is why councils often applied for it, for incapacitated people – and then used it to arrange care – so as to save money on the unmet need bit of the package that the council had to pay for, even though it sometimes made the person worse off financially, because of the different operation of the ILF and Fairer Charging social care charging regimes! A really interesting notion of conflict of interest there, in relation to best interests decision-making, some would say THAT was, but not now!

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

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