DIRECT PAYMENTS 1. Introduction 2. Eligibility for a Direct Payment 3. Employment of Relatives Living in the Same Household - Guidelines for Exceptional Circumstances 4. Consent 5. Financial Aspects of Direct Payments 6. Direct Payments and the Law 7. Operational Path for Direct Payments 8. Staff Guidance on Personal Assistant Costings 9. Monitoring and Review 10. Advice and Support 11. Direct Payments in Lieu of Multivouchers 11.1 Who can receive direct payments in place of Multivouchers? 11.2 How the scheme works

1. Introduction

The Lancashire County Council Direct Payment Scheme has been in operation since 1999 under the provisions of the Community Care (Direct Payments) Act and is designed to meet an individual's need by providing them with a financial payment to enable them to purchase their own care instead of providing them services in the traditional way.

The purpose of direct payments has been to put more control in the hands of people who need community care services. People using direct payments take on the responsibility for purchasing the services to which the payment relates. This involves ensuring that they receive the appropriate services to an acceptable standard. It may also involve taking on the legal responsibilities of an employer, or contracting with an agency.

This principle has been taken forward and further developed by the introduction of Self Directed Support and, for new service users who are offered a Personal Budget under Self Directed Support, a Direct Payment is one of the pathways through which they may receive their Budget.

Direct Payments are only to be offered to new service users within a Personal Budget arrangement. Whereas previously the amount of the payment was calculated by considering what the cost of a traditional care package might have been, it is now calculated using the Resource Allocation System to arrive at an Indicative Budget, the final amount being derived through the support planning process.

All service users who were previously in receipt of a traditional calculated Direct Payment are being reviewed in order to provide consistency and equity in light of the Self Directed support Policy.

For full details of Self-Directed Support see Section on Self Directed Support Direct Payments can now not only be made direct to the Service User but also to other people acting on their behalf. However such arrangements are subject to contractual obligations of the third party who need to be made aware of this. – See Section on Direct Payments

2. Eligibility for a Direct Payment

To qualify for Direct Payments, Service Users must be defined as a disabled person under section 29 of the National Assistance Act 1948. This includes people with any kind of impairment such as:

 Physical impairments including sensory disabilities.

 Learning disabilities.

 Those who are disabled by illness such as mental illness, arthritis, HIV/AIDS.

Disabled people who are ineligible for direct payments:

The regulations relating to exclusions from eligibility for Direct Payments have been updated with effect from November 2009 and exclusions are now limited to:

 People who are subject to drugs and alcohol-related provisions of some criminal justice legislation remain excluded from receiving direct payments.

 People who are on conditional discharge from hospital under the Mental Health Act 1983 or the Mental Health (Care and Treatment) (Scotland) Act 2003, where councils will now have a power (but not a duty) to offer direct payments.

 In respect of a service which a person is obliged to accept as a condition of relevant legislation*, councils are not required to offer direct payments for that particular service – but have a power to do so. This includes conditions attached to guardianship, leave of absence from hospital or a community treatment order under the Mental Health Act 1983 and certain provisions in criminal justice legislation. (This means that councils now have a duty to offer direct payments to such a person in respect of a service which is not the subject of a condition if the person is eligible.)

*(All the relevant legislation is listed in Schedule 2 of the new regulations. See also the bullet points in Annex B of the guidance.)

For full details see the Department of Health core guidance and regulations on http://www.dh.gov.uk/en/SocialCare/Socialcarereform/Personalisation/Directpa yments/DH_076522

A direct payment may not be used to purchase the following:

 Services provided by the Local Authority.

 Permanent residential care. It would not normally be expected that a person would be provided with a Direct Payment to purchase Community Equipment that would be provided by the Local Authority under the provisions of the Chronically Sick and Disabled Persons Act 1970. However it may be used to purchase equipment that falls outside the remit of this Act if it is agreed in the Support Plan

People using direct payments are not normally allowed to buy services from:

 Their partner (other member of a married or unmarried couple) if they are living in the same house.

 A close relative living in the same house.

However a relative in the same house may be employed in exceptional circumstances as follows:

3. Employment of Relatives Living in the Same Household - Guidelines for Exceptional Circumstances

In exceptional circumstances the Local Authority now has the discretion to agree direct payments to employ a spouse, partner or 'close relative' living in the same household as the direct payments recipient. This guidance has been written to ensure a consistent approach across all service areas when determining exceptional circumstances.

The Department of Health Guidance states that:

"Unless a council is satisfied that it is necessary to meet satisfactorily a person's needs, a council may not allow people to use direct payments to secure services from a spouse (husband or wife), from a partner (the other member of an unmarried couple with whom they live), or from a close relative (or their spouse or partner) who live in the same household as the direct payments recipient."

This restriction is not intended to prevent people using their direct payments to employ a live-in personal assistant. The restriction applies where the relationship between two people is primarily personal rather than contractual, for example, if the people concerned would be living together in any event.

Direct payments to employ a spouse, partner or 'close relative' living in the same household would not be considered where a person's needs can be satisfactorily meet through the provision of services. However, there may be some cases where the Local Authority is unable to satisfactorily meet a person's needs through the provision of services. Before a request for exceptional circumstances can be considered the person concerned should be able to demonstrate that they have made significant attempts to recruit a personal assistant (PA) with support from an Independent Living Advisor (ILA). This must be evidenced or corroborated by the ILA.

Exceptional circumstances can only be considered when the worker undertaking the assessment concludes that the Local Authority is unable to satisfactorily meet a person's needs through the provision of services or direct payments to employ a PA from outside the recipient's home. The allocated worker needs to contact the Direct Payment Officer for advice and if necessary to arrange a joint visit to obtain further information. Following this the Allocated Worker will provide a written report to the relevant funding panel and head of service for consideration. A panel member will inform the service user of the whether the panel agreed or rejected the application.

Any agreement for direct payments to be used under exceptional circumstances to employ a spouse, partner or 'close relative' living in the same household should be recorded on ISSIS details should include any relevant timescales. In order to ensure consistency across the county the above process should be used for all adult service user groups.

4. Consent

Previously people who lacked capacity to consent to Direct Payments were excluded. However with effect from November 2009 the rgulations have changed

All councils must now offer direct payments to certain eligible adults who lack the capacity to consent to receive them. Direct payments can now be made to a willing and appropriate ‘suitable person’, such as a family member or friend, who receives and manages the payments on behalf of the person who lacks capacity.

People benefiting from this extension of the direct payment scheme may include, for example, some adults with head injuries and some people with dementia. In addition, severely disabled children moving into adulthood, who would previously have lost the direct payments they received as a child, can now continue to receive them on reaching the age of 18.

Guidance is available on the Department of Health website at http://www.dh.gov.uk/en/SocialCare/Socialcarereform/Personalisation/Directpa yments/DH_076522

The guidance describes the process to be followed for appointing a suitable person, the conditions to be met by the suitable person, and includes advice on disputes, when advocacy may be appropriate, approaches to risk, and safeguarding. (See paragraphs 184 to 206 of the guidance for details.)

5. Financial Aspects of Direct Payments

The payment and management of a Direct Payment is subject to financial regulation and oversight. For example the Service User is required to set up a dedicated bank account to receive the direct payment and the use of the payment is subject to review and monitoring by staff from the Combined Finance Department. Full details can be found in the Service User Guide available on http://lccintranet/acs/groups/cft/guidance/nrcs/index.asp#anchor100990

6. Direct Payments and the Law The Social Worker will need to ensure that service users understand that any contract that they make for the provision of services will involve legal responsibilities.

The Carer employed by the service user is outside LCC responsibility regarding compliance with the Law. Inland Revenue Returns and compliance with minimum wage legislation etc, are the responsibility of the service user or, if self employed, the Carer. The service user is responsible for ensuring that Employers liability insurance is in place. Advice on these matters will be available from the Lancashire Centre of Independent Living which has been appointed to act as an intermediary regarding direct payments.

7. Operational Path for Direct Payments

1. Social Worker/RASO establishes that the service user is eligible under Fair Access to Care Services (FACS) for social care services via an assessment.

2. Service user to be offered and given information on direct payments as a pathway for delivering self directed supports. Service users needing further information should be directed to Lancashire Centre of Independent Living Tel: 01772 250300.

3. In order to prevent a delay in setting up the Direct Payment Social Workers/RASOs should advise the Service User that it will be necessary to set up a separate Bank Account to manage the payments. They should advise the service user to start this process as soon as the decision is made that they will take a Direct Payment pathway.

In order that the Direct Payment can be monitored  The bank account should be a cheque account or an account from which a direct debit can be made  Statements should be issued at least quarterly  It would be helpful (but not essential) if the name of the account should include reference to Direct Payments - eg Joe Smith (Direct Payments)

4. Social Worker/RASO needs to agree with the service user which of their assessed needs will be met by direct payments and which, if any, will be met by another pathway and draw up a support plan accordingly.

5. Social Worker/RASO to submit assessment, support plan and FA1 to team manager (this may vary depending on the team that you work on). Where a service user intends to become an employer the FA1 should include a request for start up funds – Employer Liability Insurance (up to £135) and Advertising Costs (up to £350), CRB checks (£52) – initial payment £100 - £300 depending on need, to a maximum of £500 if required.

6. An application to the Independent living fund must be considered where the service user meets the eligibility criteria. o Receive of £320 worth of support a week or £16,640 per year. Be at least 16 and under 65 years old. o Receive the highest rate care component of Disability Living Allowance (DLA) o Expect to live in the community for the next six months. o Have capital of less than £23,000 (excluding the property the service user lives in). This amount includes any capital the service users partner may have. 7. If the Team Manager supports the package it will be submitted to panel (if in excess of RAS Band 7 or if actual budget in higher than indicative budget) for funding to be approved. If below band 7, the Team Manager can approve the package).

8. Panel (team manager with delegated financial authority) approves FA1 on ISSIS and advises finance section.

9. The Social Worker/RASO to arrange a care package as an interim measure until the service user has made arrangements to purchase their own care (if required)

10.Following approval for direct payments package the finance officer will send a copy of the ‘Service User Guide’ along with the FIN 107 (or equivalent) to the service user. Finance cannot make payment to the service user until the completed FIN 107 (or equivalent) has been received.

11.If the service user intends to become an employer a referral to Lancashire Centre of Independent Living should be made by the Social Worker/RASO. Referrals can be made by completing the online referral form. Referrals to be made after approval of Direct Payment by Panel or Team Manager with delegated financial authority

12.When finance receives the completed FIN 107 (or equivalent) they will send it to the team manager to sign and return.

13.Finance officer issues a letter to the service user detailing the date of the first payment, amount of the client contribution (if known) and the amount of the direct payment.

14.The first payment is paid directly into the service user bank account in line with the finance payment schedule. A payment may also be made to a Managed Bank Account if appropriate.

15.The direct payments package will be reviewed after three months. The Social Worker/RASO will review to ensure that the service users assessed needs are being met. Finance will carry out an audit to ensure the funds are being spent appropriately.

16.The finance section will continue to monitor the package, undertaking schedule reviews every twelve months or more frequently if required. 17.The service user’s package will now be open to review with the finance section and the Social Worker/RASO.

8. Staff Guidance on Personal Assistant Costings

There has been some confusion in relation to costing a support plan where an individual wishes to employ a personal assistant (PA). Whilst we do not want to restrict how an individual uses their personal budget we need some guidance to ensure that an individual has sufficient funds to cover all the costs associated with employing a PA.

It is recommended that staff use an hourly of £11 when calculating the cost of employing a PA. This rate is sufficient to cover the cost of the PA's wages and any additional costs an employer is likely to incur, including PA expenses. A referral should be made to Lancashire Centre for Independent Living (LCIL) who will be able to provide the individual with advice in relation to a PA hourly rate of pay.

A suggested hourly rate of £11 includes the following: (There may be cases where it could be appropriate to pay more than £11 per hour, but thought needs to be given to the fact that this could potentially limit the number of hours an individual is able to purchase)

 PA hourly rate of pay

 Employer’s National Insurance Contribution

 Statutory holiday entitlement (5.6wks per year)

 Enhanced Bank holiday pay (optional – not generally used)

 PA expenses

 Annual Employer’s Liability Insurance

 On-going recruitment costs, including CRB checks

 Training costs

 Admin costs.

Individuals using a personal budget to employ staff for the first time will need a one off payment to cover initial costs:

 Employer’s Liability Insurance (£135)

 Advertising costs (if applicable) (£350)

 CRB checks if required (£52 via Lancashire Centre for Independent Living)

Please note that inflationary uplifts may apply when calculating costs in future years. Rate of pay for the carer under the Direct Payment Scheme – Guidance Only

The rate of pay can only be advised by LCC and by Lancashire Centre of Independent Living as it will be down to the Direct Payment Recipient to actually set the rate of pay as they are the employer and not LCC or LCIL.

There are two rates to work on: a) 16% on top of rate of pay – this will cover tax and NI (if appropriate), admin and build up Employer Liability Insurance for second year. b) 25% on top of rate of play to include all of above and limited expenses

Previous suggestions are to pay a PA between £7.50 and £8.50ph

£8.50 plus 25% (£2.125) = £10.625 (£10.63ph)

LCIL suggest to pay a PA between £8.00ph and £9.00ph

Using 16% on top costs and using an all inclusive rate of £11ph his would mean that the maximum rate of pay would be £9.48ph.

Using 25% on top costs and using an all inclusive rate of £11ph his would mean that the maximum rate of pay would be £8.80ph.

*Rate of pay can only be advisable by SSD as it will be down to Direct Payment Recipient to actually set rate of pay

*Existing pa's rates of wages should be maintained if commitment already exists

*£11ph is the suggested rate of pay but the maximum amount of Direct Payment cannot exceed £11.90ph.

The recommendation is that the 25% rate should be used as the contingency offered here should reduce SSD involvement if there is a problem.

9. Monitoring and Review

The Service Users Support Plan will be reviewed in the usual way – (See Section….)

For information on financial monitoring and review of Direct Payments see the Service User Guide http://lccintranet/acs/groups/cft/guidance/nrcs/index.asp#anchor100990

Where there are any discrepancies, if necessary, a joint visit can be undertaken by the Social Worker and Finance staff.

10. Advice and Support The Lancashire Centre of Independent Living

Lancashire County Council have entered into a Contractual Agreement with the Lancashire Centre of Independent Living to provide an advice and support service. They will provide information, advice and support for people who are considering direct payments and becoming an employer under the direct payment scheme. Anyone considering entering the scheme, should be given information about how to request advice from this organisation prior to making a commitment to enter the scheme.

This service is available to all service users who may choose whether or not to use it. They should be advised to use it if they are at all unsure of the Law etc. The organisation should not act as an advocate for service users or try to operate in a “lobbying” capacity. It will be there to offer technical advice.

Service users who are competent to manage their direct payment arrangements, without making use of this facility are at liberty to do so. They cannot, however, claim a “discount” on their contributions or a higher direct payment rate as a result.

The advice from the independent organisation is free at the point of delivery, and they will provide:

 Information about the scheme to individuals, voluntary organisations, local groups, Social Care Services staff, and a variety of outlets.

 Support to service users to enable those interested to access the scheme.

 Support with:

 Recruitment of staff

 Job Descriptions

 Person Specifications

 Adverts

 Short listing/Interviewing

 Letters of Appointment

 Employment Contract

 Information on Employment Legislation.

 Initial support to service users in managing the direct payment – this can be at the service user’s discretion, and can be as much or as little as required, and can be on-going.

 Salary and payroll service.

 Peer group support – groups/1:1/buddy system.  Management of Bank Account

The Lancashire Centre of Independent Living will also offer advice and support if requested, to current service users receiving a direct payment.

They may be contacted at:

Lancashire Centre of Independent Living

Preston Technology Management Centre

Cooper Road

Off Marsh Lane

Preston

PR1 8UQ

Tel: (01772) 250 300

Fax: (01772) 250 288

E-mail: [email protected]

Direct Payment Network

Advice and support for people who are already established on Direct Payments is offered by the Direct Payment Centre who are based at Temple Street Resource Centre in Burnley.

Tel: 0845 603 9760

Further Information

The Department of Health is funding the British Council of Disabled People (BCODP) to run a National Centre for Independent Living (NCIL), as a source of information and expertise. NCIL can be contacted at:

National Centre for Independent Living

4th Floor, Hampton House

20 Albert Embankment

London

SE1 7TJ

Tel: 0207 587 1663 Fax: 0207 582 2469

Text: 0207 587 1177

E-mail: [email protected]

11. Direct Payments in Lieu of Multivouchers

Direct payments in place of Multivouchers enables disabled people and carers to buy personal care services from a personal assistant or homecare agency of their choice. Carers and disabled people who receive respite care are therefore not limited to buying services from residential establishments and homecare agencies. Existing direct payment users have the choice of purchasing respite services from their personal assistants. The development of direct payments in place of respite Multivouchers offers greater choice and control to users of adult respite services.

11.1 Who can receive direct payments in place of Multivouchers?

Anybody who is eligible for Respite Vouchers (See Section on the Short Break Voucher Scheme) can be offered a Direct payment in lieu of the vouchers.

11.2 How the scheme works

 The amount of money received is calculated by considering the number of vouchers that would have been issued.

 The vouchers should be commissioned using the Direct Payment FA1. Financial approval can be given as for Short Break Vouchers

 If the service user is already in receipt of Direct Payments the payment will be made into their existing direct payment bank account. If they have not previously had a Direct Payment they will need to open a separate bank account.

 Details of how payments will be paid and monitored can be found in the Service User Guide on the Combined Finance Intranet site http://lccintranet/acs/groups/cft/guidance/nrcs/index.asp#anchor100990  The service user must be made aware that if they employ a carer this will carry legal responsibilities – including the provision of Employers Liability Insurance for which they are responsible.

 Direct Payments in lieu of vouchers can only be spent to provide carer respite

 Payments under this scheme cannot be used to purchase Residential Care.

Further detailed information can be found on the Combined Finance Intranet site http://lccintranet/acs/groups/cft/guidance/nrcs/index.asp#anchor100990