What to Say If: you are told “You can HAVE a direct payment, but the size of your budget for your direct payment will be calculated based on the cost for which we could meet your needs if we were buying the services.”

“…And if that’s not enough, well then, we guess that you’ll be withdrawing your request for a direct payment, yes? or else accepting the budget as less than you know is needed via a DP route, as a matter of your own choice…”

 

Anyone thinking that this is the bit of the Self Help guide that applies to them, needs to go take a wet flannel and sit down and commit to reading what follows, two or three times, using all their intellectual firepower.

It’s hard, because it has been left regrettably unclear, until someone brings a case to court about it.

The guidance says this:

11.25 The Act states the personal budget must be an amount that is the cost to the local authority of meeting the person’s needs. In establishing the ‘cost to the local authority’, consideration should therefore be given to local market intelligence and costs of local quality provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified in the budget.

To further aid the transparency principle, these cost assumptions should be shared with the person so they are aware of how their personal budget was established.

Consideration should also be given as to whether the personal budget is sufficient where needs will be met via direct payments, especially around any other costs that may be required to meet needs or ensure people are complying with legal requirements associated with becoming an employer (see chapter 12).

There may be concern that the ‘cost to the local authority’ results in the direct payment being a lesser amount than is required to purchase care and support from the local market due to local authority bulk purchasing and block contract arrangements. However, by basing the personal budget on the cost of quality local provision, this concern should be allayed.

11.26 However, a request for needs to be met via a direct payment does not mean that there is no limit on the amount attributed to the personal budget.

There may be cases where it is more appropriate to meet needs via directly-provided care and support, rather than by making a direct payment. For example, where there is no local market for a particular kind of care and support that the person wishes to use the direct payment for, except for services provided by the local authority.

It may also be the case

[ie no direct payment to be offered at all, and ONLY directly commissioned support offered in the first place, CASCAIDr would beg to be told?]

where the costs of an alternate provider arranged via a direct payment would be more than the for what the local authority would be able to arrange the same support, whilst achieving the same outcomes for the individual.

11.27 In all circumstances, consideration should be given to the expected outcomes of each potential delivery route. It may be that by raising the personal budget to allow a direct payment from a particular provider, it is expected to deliver much better outcomes than local authority delivered care and support, or there may be other dynamics such as the preferred option reducing the need for travel costs, or out of hours care.

In addition, efficiencies to the local authority (for example through an individual making their own arrangements) should also be considered.

Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.

11.28 In cases where making a direct payment is a more expensive option to meet needs, the care plan should be reviewed to ensure that it is accurate and that the personal budget allocation is correct.

[a wholly circular fudge, it seems to CASCAIDr!]

The authority should work with the person, their carer and independent advocate (if there is one) to agree on how best to meet their care and support needs.

It may be that the person can take a mixture of direct payment and local authority-arranged care and support, or the local authority can work with the person to discuss alternate uses for the personal budget.

Essentially, these discussions will take place during the planning process and local authorities should ensure that their staff are appropriately trained to support personalised care and support, and to facilitate decision-making.

 

So, what one might have to consider and/or ask, in order to get to the heart of the issue, is this:

“I get that the setting of the budget has to take account of local market rates but local market rates to YOU, the council, might logically and predictably be less than they would be to a person buying as an individual. So what are you really saying here?

  • Are you saying that my preference for having a direct payment so that I can buy services from a particular provider – who charges more than you can get the service for – is a ‘want’ and not a need?

 

  • Of course I get that if I choose to have a luxury or particularly high class quality service, then that MUST be a want and not a need, and then if I take the direct payment based on the cost of meeting my needs and not ‘wants’, then that’s down to me and I will have to make do and stretch the budget or else top up from my own or my family’s human or financial resources
  • Can I remind you though that the guidance says that councils could decide that the better outcomes that I can achieve through use of a direct payment and the council not having to commission for me, any longer, mean that the council paying out more for that route COULD WELL BE SEEN as BEST VALUE And that ‘Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.’

 

  • But honestly, there is no evidence that the provider I want, who’s offering to meet my needs as you’ve assessed them to be, for £x an hour, is going to be doing anything specially top notch or luxurious – it’s an ordinary provider who’s in business to provide services to ordinary people, which costs more than just fulfilling one large council volume-based purchase.

 

  • If I were to be getting anything special that is not part of ordinary reasonable expectations for a home care service out of this provider (like always having access to the same 2 workers, which would be lovely, but which I can’t honestly say is essential) I would agree with you that that would be down to me.

 

  • But no normal person would expect to have to go to bed at 6pm, and you are supposed to commission for a reasonable quality of service taking people’s wellbeing including their emotional and psychological wellbeing into account, in the first place.

 

  • If direct payment holders can’t choose providers like the one I have chosen, there will be no diversity in the market, which is something that you have a duty to have regard to as part of market management for the whole care market, not just the council’s commissioned for clients…

 

 

  • In so far as the Guidance hints that you can take cost differentials into account, when setting the budget, that bit of the guidance is unsupported by any reference to primary or secondary legislation.

 

  • It doesn’t actually say that you can offer it to me at the lower level, and still be acting within the legal framework for direct payments, does it? It sort of waffles (see paragraphs 11.25, 11.26, 11.27 and the Andrew example in the guidance) and begs the question when it comes to what should be done if nobody can innovatively make the money somehow stretch through negotiations….

 

  • I accept that it might make a difference to budget setting if the cost differential for the same thing via the different buying routes was going to be massive, but not if it is simply the effect of my being an individual purchaser in the local market, whilst you are a bulk buyer. It is wholly rationally predictable that a provider would charge more to an individual than to a council: the clients will be disabled and vulnerable people, not all of whom will manage their budgets perfectly, and there will be more phone calls for variations and more bad debts, in the end, for the provider.

 

  • If you stick to your position and offer me less – as a budget for this DP – less than we all know it will cost me to buy the service as a direct payment purchaser, how will you reflect that shortfall in the s25 care plan that you are obliged to give me even if I have a direct payment? How will you show that it actually meets my needs?

 

  • Are you effectively saying ‘Take it or leave it, and if you don’t want to take the budget for use as a direct payment, then that’s your choice, in the end, and that you will just crack on and meet my needs directly?’

 

  • I have been advised that that’s not a defensible approach if so, because it leaves your duty to promote my wellbeing wholly out of account – wellbeing including this notion here:

           S1(2)(d) control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided);

 

  • Remember, the guidance says that councils could decide that the better outcomes that I can achieve through use of a direct payment and the council’s not having to commission for me any longer, mean that the council paying more for that route IS able to be seen as BEST VALUE.

 

  • And that ‘Decisions should therefore be based on outcomes and value for money, rather than purely financially motivated.’
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