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Health and Social Care Act 2001

Direct payments

272.Direct payments are cash payments given to persons entitled to social services in lieu of services that would otherwise have been arranged for them by social services departments. Social services clients are then expected to arrange their own care.

273.Sections 57 and 58 enable regulations to be made in connection with making direct payments in respect of services under section 47 of the 1990 Act, section 2(1) of the Carers and Disabled Children Act 2000 and in respect of children. Section 57 deals with direct payments in respect of adults. Section 58 deals with direct payments in respect of children.

Section 57: Direct Payments

274.Section 57 deals with direct payments in respect of adults. Under the current system local authorities are permitted but not required to offer direct payments to people who meet the eligibility criteria.Subsection (1) allows regulations to make provision for and in connection with requiring or authorising a local authority to make direct payments to an individual who fulfils the requirements of the scheme and agrees to be part of it.

275.Subsection (2) specifies the persons to whom direct payments may be made. These are: a person who the local authority has decided under the 1948 Act needs a particular community care service; and a person for whom the local authority has decided to provide a service under the Carers and Disabled Children Act 2000.

276.Subsection (3) gives particular instances of what the regulations may provide. In particular, regulations may specify the situations in which a local authority is not required or authorised to make a direct payments. It does, however, allow for flexibility: for example, regulations could provide that an individual who has previously made mistakes or misspent may still be able to get a direct payments.

277.It also enables regulations to be made that concern: making direct payments either as gross or net payments; determining the payee’s means and any contribution they will make; conditions that the local authority may impose in respect of the direct payment; circumstances when the payments may be terminated or required to be repaid ; and authorising direct payments to be paid to a third party on behalf of the payee.

278.The subsection also enables regulations to be made displacing, to such extent as may be prescribed, the functions and obligations of the local authority with respect to the provision of the service for which the direct payment is made. This will enable the effect of section 2 of the Community Care (Direct Payments) Act 1996 to be reproduced.

279.Subsection (4) defines gross payments as payments that are made at a rate that the local authority estimates is equivalent to the reasonable cost of securing the service concerned. It also specifies that they may be made subject to the condition that the recipient will reimburse the local authority in respect of part of that cost.

280.Subsection (5) defines a net payment as a payment that is made on the basis that the recipient will himself pay a contribution direct to the person providing the service. Thus the payment will be made at a rate below the equivalent to the reasonable cost of securing the provision of the services concerned in order to reflect the contribution made by the recipient.

281.Subsection (6) requires regulations to ensure that no contribution may be sought for services which are provided under section 117 of the Mental Health Act 1983 (after care). This is because local authorities are not able to charge for after-care services provided under that section, and therefore no financial contribution can be sought from the client.

282.Subsection (7) makes provision for regulations to limit the maximum period for which residential care may be purchased with a direct payment. It will be possible for direct payments to be used to purchase short-term rehabilitation care.

Section 58: Direct payments in respect of children

283.Section 58 deals with direct payments in respect of children. It substitutes a new section 17A in the Children Act 1989.

284.Within the revised section 17A of the Children Act 1989:subsection (1) enables regulations to make provision for and in connection with requiring or authorising a local authority to make a direct payment to an individual who fulfils the requirements of the scheme and agrees to be part of it.

285.Subsection (2) specifies the persons to whom a direct payment may be made. These persons are: a person with parental responsibility for a disabled child; a disabled person with parental responsibility for a child; and a disabled 16 or 17 year old. It also specifies that the local authority must have decided for the purposes of section 17 of the Children Act 1989 that the needs of the child in question call for them to provide services.

286.Subsection (3) provides that section 57(3) to (5) and (7) of this Act apply in relation to regulations under the revised section 17A.

287.Subsection (4) provides that regulations under this section must specify that direct payments to the categories of people that this subsection applies to are to be gross payments with no contribution being required from them (see subsection (5)).

288.Subsection (5) specifies the persons from whom a contribution may not be required. They are: a person with parental responsibility for a disabled child, or a disabled person with parental responsibility for a child, where the child is aged 16 or 17; or a person who is in receipt of income support, working families’ tax credit or a disabled person’s tax credit under Part 7 of the Social Security Contributions and Benefits Act 1992 or of an income-based jobseeker’s allowance.

289.Subsection (6) defines “disabled” in relation to an adult by reference to the meaning given by section 17(11) of the Children Act 1989 in relation to a child.

Section 59: Interpretation of Part 4

290.Section 59 defines the terms used throughout Part 4 (sections 49 to 59).

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