Direct payments were supposedly “the Government’s preferred mechanism for personalised care and support…
“They provide independence, choice and control by enabling people to commission their own care and support in order to meet their eligible needs” … making people “free to choose how their needs are met, whether through local authority or third-party provision, by direct payments, or a combination of the three approaches.”
But as we know – “People must not be forced to take a direct payment against their will, but instead be informed of the choices available to them”
Some basics here, then first:
You can’t have a direct payment, unless you have been allocated a personal budget.
You won’t have been allocated one of those, unless or until you have been found eligible for something. You may ALSO have persuaded the council to fund for some non-eligible need or ongoing preventive input, if you were fortunate, however.
The size of the budget will depend on what your assessed eligible unmet needs were found to be, and on what the council reasonably thought it would cost the council to meet those needs in an objectively appropriate manner.
You must have persuaded the council that a direct payment is an appropriate way of meeting the needs for which it is proposed to allocate the relevant amount of funding.
Appropriate is a woolly word – and no-one knows whether a council may lawfully take the economic impact of giving you one for your needs, on the rest of its functions, into account, as part of that consideration. I would say not.
In some parts of the Guidance, economic viability and value for money have crept back in to the ‘right’ to have a direct payment. One analysis is that this is deliberate, to match the references in the personal health budgets regs to the issues of both clinical and economic viability, on the basis of which a Health DP can be refused (‘value for money’).
The DH says not though – they knew that the Regs themselves say that a direct payment is mandatory, if the conditions in the regulations are met… so it all comes down the interpretation of the word ‘appropriate’ in the DP regulations.
You would need to have persuaded the council that even if it would cost the council more to meet the same need with the same outcomes, via a direct payment, than it would for them to just buy in the service and provide it to you, it’s still better value to give you a sufficiently funded personal budget as a direct payment, rather than directly provide for a want – eg in order to promote your control over day to day care and support – part of your well-being – according to s1 of the Act.
Otherwise, you would have to pay the difference, not the council – if it was a want, and not a need.
But if it is a need, and just costs more by way of a direct payment, can the council say NO?
Let’s assume that it is agreed that the service user’s needs can be met by a response that does x, y and z
The service user would prefer x, y and z with bells on, or x, y and z squared….or cubed, or in pink or blue…. And all with good reason – it’s part of their subjectively desired outcomes.
This is generally a ‘want’ vs a ‘need’ situation, a trigger for a self-funded top up.
Albeit that the person has a subjective reasonable preference for it, as a human being……
In that situation, the client/advocate needs either –
- To spend more of their own money
- To persuade the council that the preferred option really would be better value, albeit not necessary.
Now let’s assume (without thinking of it in terms of a direct payment vs a council contract at all at this point) that there are two alternative DIFFERENT objectively adequate ways of meeting a need: the council need only fund the cheaper of the two. This is because it is public money.
It should however ensure that it doesn’t allow cost to be the driving determinant, and engages with human rights and abides by MCA process and the Care Act Guidance.
The Council can fund the more expensive package, for better short or long term value, and should do either by calling it the meeting of a non eligible need, at Panel stage, or accepting that it is clear that it is in the best interests of the person, or that it would make a big difference to the person’s outcomes. It may also do so for reasons of compassion, for meeting a government target, etc
Now assume that there are two different DEPLOYMENT routes (one, a direct payment, the other with the council buying the response) for achieving the EXACT same service response or outcome, but a direct payment will cost more than it will if the council does the buying.
In CASCAIDr’s view the council needs either to
- Fund for sufficiency – on the basis that the direct payment deployment route is itself a part of promoting well-being BECAUSE it enhances control over day to day life: see s1
- Or – refuse a direct payment on the grounds that a direct payment would not be an appropriate way of meeting need – and risk judicial review
- If it did this where the difference is LARGE, or the benefit of having a direct payment was not articulated as being important in itself not important to the individual, a council might get away with it, we think.
- We do not think that it can say ‘you can only have what it would cost US’ if it cannot articulate why the item or service wanted is a mere want and not a need.
We don’t feel confident in saying this myth has been busted as yet, because there’s no case on it, but we do think that a council arguing that the cost of a Direct Payment is relevant to its appropriateness, such that it can say no to one when all the other conditions have been met, would be taking a legal risk, where the difference was not great.
We say that because the Personal Health Budgets regulations specifically mention financial non-viability – whereas the council Direct Payment regulations DON’T! A lawyer would make a lot of mileage out of that difference, because draftsmen don’t just leave things out for no good reason.