The Community Care, Services for Carers and Children’s Services (Direct Payments) (Wales) Regulations 2004

Explanatory Note

(This note is not part of the Regulations)

These Regulations require Welsh local authorities to make direct payments to certain persons in order that they may themselves secure the provision of certain social services. The services in question are listed in regulation 5(2).

Regulation 3 prescribes certain persons for the purposes of the Regulations, in so far as they apply to persons whose needs a local authority have decided call for the provision of community care services or in respect of whom a local authority has decided to provide a carer’s service. A person is prescribed under regulation 3 if he or she appears to the local authority to be capable of managing direct payments and falls within any of the descriptions in regulation 3(2), unless he or she is a person to whom Schedule 1 to these Regulations applies.

Regulation 4 prescribes certain persons for the purposes of the Regulations, in so far as they apply to services for children in need and their families. Regulation 4 should be read in conjunction with s.17A(2) of the Children Act 1989. Under s.17A(2) of the 1989 Act direct payments may only be made to persons of the following descriptions and in cases where a local authority has decided that the needs of the child concerned call for the provision of a service under section 17 of the 1989 Act: (i) a person with parental responsibility for a disabled child; (ii) a disabled person with parental responsibility for a child; (iii) a disabled child aged 16 or 17. Regulation 4 sets out which of these persons are prescribed for the purposes of the Regulations. A person is prescribed under regulation 4 if he or she appears to a local authority to be capable of managing a direct payment and is not a person to whom Schedule 1 to these Regulations applies.

Regulation 5 confers duties upon local authorities in Wales to make direct payments to prescribed persons. It should be read in conjunction with section 57(1) of the Health and Social Care Act 2001 and s.17A(1) of the Children Act 1989. Under those provisions, direct payments may not be made to a person without his or her consent.

From 1 November 2004, under regulation 5 a local authority must, if the conditions in regulation 5(3) are met, make direct payments to: (i) persons prescribed under regulation 3 to whom section 29 of the National Assistance Act 1948 applies (section 29 applies to adults who are, for example, substantially and permanently handicapped by illness, injury or congenital deformity or suffering from mental disorder); (ii) persons prescribed under regulation 3 for whom the local authority have decided to provide services under section 2 of the Carers and Disabled Children Act 2000 (services for carers); and (iii) persons prescribed under regulation 4. And from 1 March 2005 a local authority must make direct payments to other persons prescribed under regulation 3 who are aged over 65 and in respect of whom the local authority has decided to provide community care services.

Regulation 6 provides that a direct payment shall be made either as either a gross payment, or net of such amount determined by the authority as being due by the person in respect of the service. It also provides that in certain cases only gross payments may be made. Regulation 6 further provides that a payment may be made to the prescribed person or to such other person nominated by that person.

Regulation 7 specifies conditions upon which direct payments may or shall be made. In particular, it prohibits a direct payment from being used to secure a service from the persons listed in regulation 7(2), except in the circumstances specified in regulation 7(1).

Regulation 8 specifies the maximum periods of residential accommodation that may be secured by means of a direct payment.

Regulation 9 provides that where an authority makes a direct payment it does not lose its responsibilities towards the prescribed person under the enactment under which the authority has decided the person is to receive services. However, where a local authority is satisfied that the needs of the prescribed person will be met by arrangements made by the recipient of the direct payment, it shall not be under any obligation with respect to the provision of the services secured by the direct payment.

Regulation 10 provides for the circumstances in which an authority may require a direct payment to be repaid.

Regulation 11 provides for the circumstances in which an authority shall, or may, terminate direct payments.

Regulation 12 and Schedule 2 amend various Regulations.

Regulation 13 revokes various Regulations.

Schedule 1 specifies persons to whom direct payments may not be made under these Regulations.