DIRECT PAYMENTS
TO A SUITABLE PERSON (DPSP)
STAFF
PRACTICE GUIDANCE
AND
PROCESS
WHERE THE PERSON LACKS ‘CAPACITY’ (Mental Capacity Act 2005) TO CONSENT TO RECEIVING
DIRECT PAYMENTS
PRACTICE GUIDANCE
Index
1 BACKGROUND
2. DELIVERY OF DIRECT PAYMENTS
3. ESTABLISHING LACK OF CAPACITY
4. ABILITY TO MANAGE
5. APPOINTING A SUITABLE PERSON
6. CONDITIONS TO BE MET BY THE SUITABLE PERSON
7 PRACTITIONER KNOWLEDGE
8 SETTING THE AMOUNT OF MONEY IN DIRECT PAYMENTS
9 COUNTY COUNCIL PAYMENTS OF THE DIRECT PAYMENTS
10 CUSTOMER CONTRIBUTION
11 PROVIDING A SUPPORT SERVICE TO AN APPOINTED SUITABLE PERSON
12 CONTINGENCY ARRANGEMENTS
13 EMERGENCIES
14 ADDITIONAL EXPENSES
15 SPENDING THE DIRECT PAYMENTS
16 PURCHASING FROM A REGISTERED INDEPENDENT CARE PROVIDER
17 PAYING FOR ITEMS OF EQUIPMENT TO ASSIST INDEPENDENCE AND/OR SUPPORT PERSONAL CARE
18 SPENDING A DIRECT PAYMENTS ON PROPERTY ALTERATIONS
19 PURCHASING SUPPORT – PAYMENT METHOD
20 IMPLICATIONS FOR TAX AND BENEFITS
21 WEST SUSSEX COUNTY COUNCIL DIRECT PAYMENTS AGREEMENT TO A SUITABLE PERSON
22 MONITORING RESPONSIBILITIES
23 REVIEWS
24 BUILD UP OF FUNDS (ACCRUALS) AND RE-CLAIM
25 ADJUSTMENTS TO THE DIRECT PAYMENTS AMOUNT
26 REPAYING DIRECT PAYMENTS MONEY
27 SUSPENDING OR STOPPING DIRECT PAYMENTS
APPENDIX 1 DPSP GUIDANCE Identifying and recovering substantial accruals
APPENDIX 2 DPSP GUIDANCE Termination of DP Agreement for non-return of financial monitoring information
APPENDIX 3 - Direct Payment to a Suitable Person (DPSP) Process
APPENDIX 4 - Practitioner Checklist for DP/DPSP set up process
APPENDIX 5 - Direct Payment Suitable Person (DPSP) Independent Care Provider Only (ICP) Process
PRACTICE GUIDANCE
INTRODUCTION
In West Sussex we use the term ‘Direct Payments to a Suitable Person’ (DPSP) where the person who is eligible to receive social care support lacks the mental capacity (see paragraph 3 below) to consent to direct payments. The guidance is for use by practitioners to aid them in understanding and delivery of DPSPs in West Sussex.
1 BACKGROUND
1.1 What are direct payments to a suitable person?
A DPSP is one way of delivering all or just some of the Personal Budget to someone who is eligible to receive social care support. A DPSP is only made when that person lacks capacity as defined under the Mental Capacity Act 2005 for the purpose of consenting to receive direct payments. This may be because of an impairment of or disturbance in the functioning of the mind or brain, for example, caused by dementia or an acquired brain injury.
1.2 Delivery of the Personal Budget
With a DPSP the County Council gives all or some of the Personal Budget to another person who under the Regulations (see paragraph 1.3 below) has to be ‘suitable’ (see paragraph 5 below) and gives their consent to direct payments on behalf of the person lacking capacity. Having a Personal Budget delivered through a DPSP means the suitable person has choice, control and flexibility over how to meet the social care needs and personal outcomes of the individual eligible to receive social care support. The individual receiving the payments on behalf of someone else who does not have capacity is accountable to the County Council for the way in which the money is spent.
1.3 The legislation and our statutory duty
Direct payments are governed by the Health and Social Care Act 2001 (as amended by the 2008 Act) and The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009. Local Authorities are obliged by law to make direct payments to people who are eligible for them and who choose to receive the money.
A DPSP arrangement only applies to people over the age of 18, so those who are eligible to receive an assessment under section 47 NHS & Community Care Act 1990 and who lack capacity on the issue of receiving a direct payment.
The Department of Health has published Guidance on Direct Payments (2009) about how the law should be implemented, and in West Sussex we follow this guidance as closely as possible.
Link to Guidance:
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_104840
The 2009 Guidance replaces that of 2003 and reflects the changes introduced by amendments made to section 57 of the 2001 Act by section 146 of the Health and Social Care Act 2008, and also changes introduced by the Mental Capacity Act 2005 and by the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009.
There is now a duty for the County Council to offer direct payments to people lacking capacity providing there is an appointed ‘suitable’ person to receive the direct payments (see paragraph 5 below). It is this ‘suitable person’ who will receive and manage the money on behalf of the incapacitated person. It is therefore only possible to make direct payments where people lack capacity to consent to receive and manage one, if there is an appropriate and willing ‘suitable person’.
1.4 Where the County Council has a power but not a duty to make direct payments to people with eligible needs
A number of exclusions previously placed upon individuals subject to mental health legislation have now been lifted as part of the wider shift towards more included social care services. This means that most people with eligible needs have the opportunity to have direct payments through the duty placed on the County Council. However, in respect of people subject to certain sections of mental health legislation the County Council has a power, as opposed to a duty, to provide direct payments. More detail about these exceptions can be found in http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_104840 page 96.
1.5 Specific exclusions
People who have been placed under certain conditions or requirements by the courts in relation to drug and/or alcohol dependencies are excluded from receiving direct payments. More detail about those people excluded can be found in http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_104840 page 97
1.6 A support service for direct payments suitable person customers
It will be the appointed suitable person who chooses how to use the direct payments to pay for care in order to provide support to the customer. This may be through the use of Personal Assistants. However, there are other ways in which direct payments can be spent.
If the suitable person chooses to engage a Personal Assistant/s for the individual with the social care needs this could either be someone who is self-employed or employed by the suitable person. In either case, the suitable person is likely to require skilled intervention for relevant information, advice and guidance, as they must comply with employment legislation. It is important that in the recruitment and employment of Personal Assistants the suitable person can access and receive timely and appropriate support to assist them in the employer role.
Social Care or Health Workers are not expected to have, or to give information to customers or anyone else on employment related matters. The County Council makes available to unpaid suitable person’s a funded service that provides a range of employment related information, advice and guidance.
1.7 Contracted service provider for the support service
The contract for the direct payments support service in West Sussex is currently held by the Independent Living Association (ILA), a local user-led organisation. When the current Service and Funding Agreement expires in 2010, a competitive tendering process will be undertaken to determine future service provider/s.
2. DELIVERY OF DIRECT PAYMENTS
2.1 Informing the public
It is part of the professional duty of Social Care or Health Workers to inform people who are eligible to receive direct payments that this is one of a range of options available to them and to support them in reaching a decision as to how to access care services. .
3. ESTABLISHING LACK OF CAPACITY
3.1 What is ‘Mental Capacity’?
Someone who has eligible care needs but who lacks the capacity to consent to direct payments can still receive one through a suitable person. However, capacity must be presumed which means the County Council must therefore assess and record whether or not a person has capacity on specific issues. In relation to direct payments the issue to be assessed is consent to receiving a direct payments. There are likely to be a range of other decisions that may need additional assessment under the Mental Capacity Act 2005. .
Link to the Act:
http://www.opsi.gov.uk/ACTS/acts2005/ukpga_20050009_en_1
3.2 Assessing the customer’s capacity to receive direct payments
The starting assumption must be that a person aged 16 or over has capacity to make a decision, unless it can be established that they lack capacity. Under the 2005 Act, a person should not be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success. Therefore, before concluding that someone lacks capacity to consent to the receipt of direct payments, the County Council should satisfy themselves that they have taken all practical steps to help the person be able to reach a decision for themselves.
In assessing the customer’s capacity to make the decision the following two-stage test should be used:
· Does the person have an impairment of the mind or brain, or is there some sort of disturbance in the functioning of their mind or brain? (It does not matter if the disturbance or impairment is temporary or permanent.)
· If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?
If the customer has an impairment or disturbance in the functioning of the mind or brain and there is a specific decision to be made, then this should be treated as the trigger to assess capacity.
The Social Care or Health Worker is expected to consider the following questions when assessing a person’s capacity to make the decision in question:
· Does the person have a general understanding of what decision they need to make and why they need to make it?
· Does the person have a general understanding of the likely consequences of making, or not making this decision?
· Is the person able to understand, retain, use and weigh up the information relevant to this decision?
· Can the person communicate their decision (by talking, sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful? Can anyone else help the person make choices or express a view (for example, a family member, carer or advocate)?
· Is there a need for a more thorough assessment (perhaps by involving a doctor or other professional expert)?
3.3 Recording ‘lack of capacity’
Where it is assessed that an individual lacks the capacity to consent to receiving direct payments, it is essential that this is recorded using the FACE Mental Capacity Assessment. If there is any uncertainty concerning a person’s capacity to consent to the receiving of direct payments, a record needs to be kept of the steps taken to establish capacity.
3.4 Professional involvement
Professional involvement might be needed if:
· An assessor concludes that a person lacks capacity, and the person challenges the finding;
· Family members, carers and/or professionals disagree about a person’s capacity;
· The person being assessed is expressing different views to different people – they may be trying to please everyone or telling people what they think they want to hear; and
· The person has fluctuating capacity as below.
* This list is not exhaustive.
3.5 Fluctuating capacity
Capacity is not always constant and there will be some people who have fluctuating capacity. The customer may have a problem or condition that gets worse occasionally and affects their ability to make decisions, but at other times they may be perfectly capable of making such decisions. The Social Care or Health Worker therefore needs to keep the DPSP arrangement under review.
3.6 Long term regaining of capacity
If the Social Care or Health Worker is satisfied that a customer who previously lacked capacity has regained it on a long-term or permanent basis, then there is a responsibility to terminate the direct payments to the suitable person and instead make the payment to the customer. However, before doing so, the Health or Social Care Worker must consult with the customer about whether they themselves wish to receive direct payments and also, carry out and record a re-assessment of the customer’s capacity. Where the customer does wish to have direct payments, reference can be made to the County Council’s Direct Payments Guidance and Process for people who have the capacity to consent to direct payments. It is possible for the person to receive direct payments, but nominate a third party to receive and manage it for them. This is acceptable so long as the individual retains control for decision-making, but it is not a DPSP (just a DP).
3.7 Temporary regaining of capacity
Where the Social Care or Health Worker is satisfied that the regaining of capacity is only temporary (i.e. that the capacity will fluctuate) – on the advice of a medical practitioner - then the making of the direct payments to the suitable person can continue. However, in this situation, the suitable person must allow the customer to make decisions about how the direct payments will be managed during any time when they have regained the capacity to consent. In this way, arrangements for the making of someone’s direct payments do not have to be continually revisited as they lose or regain capacity on a temporary basis. This makes things easier in practical terms for the suitable person and the County Council, and provides continuity of arrangements for the customer. This temporary arrangement should however be reviewed no later than 6 weeks.
4. ABILITY TO MANAGE
4.1 The suitable person managing the direct payments
If a customer lacks capacity to consent to receiving direct payments and a suitable person is willing to receive the direct payments on behalf of that person, it is the suitable person who must be capable of managing the direct payments (either on their own or with available help). Managing direct payments is not simply about handling money. It is about making arrangements, with assistance if necessary, to obtain appropriate care and support for and on behalf of the customer who lacks capacity.