Part 4 Social Care
Direct payments
I1I2I357 Direct payments
1
Regulations may make provision for and in connection with requiring or authorising the responsible authority in the case of a person of a prescribed description who falls within F17subsection (2A) to make, with that person’s consent, such payments to him as they may determine in accordance with the regulations in respect of his securing the provision of the service mentioned in F13subsection F18... (2A).
F11A
Regulations may make provision for and in connection with requiring or authorising the responsible authority in the case of a person (“P”) of a prescribed description—
a
who falls within subsection (2)(a), and
b
who falls within subsection (5A) or is reasonably believed by the authority to fall within that subsection,
to make, with the requisite consent, such payments as the authority may determine in accordance with the regulations to a suitable person other than P in respect of the other person's securing the provision for P of the service mentioned in subsection (2)(a).
1B
In subsection (1A) “the requisite consent” means—
a
the consent of the other person; and
b
where the other person is not a surrogate of P but there is at least one person who is a surrogate of P, the consent also of a surrogate of P.
1C
For the purposes of subsection (1A), a person (whether or not an individual) is “suitable” if—
a
that person is a representative of P;
b
that person is not a representative of P (or there is no-one who is a representative of P), but—
i
a surrogate of P, and
ii
the responsible authority,
consider that person to be a suitable person to receive the payments for the purpose of securing provision for P of the service concerned; or
c
that person is not a representative of P (or there is no-one who is a representative of P), and there is no-one who is a surrogate of P, but the responsible authority considers that person to be a suitable person to receive the payments for that purpose.
F192
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F122A
A person falls within this subsection if the person is under 18 and a local authority F20... have decided under section 47 of the 1990 Act that the person’s needs call for the provision by them of services under section 117 of the Mental Health Act 1983 (after-care).
2B
The local authority mentioned in F21subsection (2A) are referred to in this section as “the responsible authority”.
C53
Regulations under this section may, in particular, make provision—
a
b
for any payments required or authorised by the regulations to be made to a person by the responsible authority (“direct payments”) to be made to that person (“the payee”) as gross payments or alternatively as net payments;
c
for the responsible authority to make for the purposes of subsection (4) or (5) such determination as to—
i
the payee’s means F3in the case of direct payments under subsection (1) or, in the case of direct payments under subsection (1A), the means of the person (“the beneficiary”) in respect of whom the payments are required or authorised to be made, and
ii
the amount (if any) which it would be reasonably practicable for him to pay to the authority by way of reimbursement or contribution,
as may be prescribed;
d
as to the conditions falling to be complied with by the payee F4in the case of direct payments under subsection (1), or by the payee or by the beneficiary in the case of direct payments under subsection (1A), which must or may be imposed by the responsible authority in relation to the direct payments (and any conditions which may not be so imposed);
e
specifying circumstances in which the responsible authority—
i
may or must terminate the making of direct payments,
ii
may require repayment (whether by the payee F5in the case of direct payments under subsection (1), or by the payee or by the beneficiary in the case of direct payments under subsection (1A), or otherwise) of the whole or part of the direct payments;
f
for any sum falling to be paid or repaid to the responsible authority by virtue of any condition or other requirement imposed in pursuance of the regulations to be recoverable as a debt due to the authority;
g
displacing functions or obligations of the responsible authority with respect to the provision of the service mentioned in F15subsection (2A) only to such extent, and subject to such conditions, as may be prescribed;
h
authorising direct payments to be made to any prescribed person on behalf of the payee.
F6j
as to matters to which the responsible authority must, or may, have regard when making a decision for the purposes of a provision of the regulations;
k
as to steps which the responsible authority must, or may, take before, or after, the authority makes a decision for the purposes of a provision of the regulations;
l
specifying circumstances in which a person who has fallen within subsection (5A) but no longer does so (whether because of fluctuating capacity, or regaining or gaining of capacity) is to be treated, or may be treated, as falling within subsection (5A) for purposes of this section or for purposes of regulations under this section.
C54
For the purposes of subsection (3)(b) “gross payments” means payments—
C1C3a
which are made at such a rate as the authority estimate to be equivalent to the reasonable cost of securing the provision of the service concerned; but
C4C2b
which may be made subject to the condition that the payee F7in the case of direct payments under subsection (1), or the beneficiary in the case of direct payments under subsection (1A), pays to the responsible authority, by way of reimbursement, an amount or amounts determined under the regulations.
C55
For the purposes of subsection (3)(b) “net payments” means payments—
a
which are made on the basis that the payee will himself F8in the case of direct payments under subsection (1), or the beneficiary will in the case of direct payments under subsection (1A), pay an amount or amounts determined under the regulations by way of contribution towards the cost of securing the provision of the service concerned; and
b
which are accordingly made at such a rate below that mentioned in subsection (4)(a) as reflects any such contribution by the payee F9or (as the case may be) the beneficiary.
F105A
A person falls within this subsection if the person lacks capacity, within the meaning of the Mental Capacity Act 2005, to consent to the making of direct payments.
5B
In this section “representative”, in relation to a person, means such other person (whether or not an individual) as may be prescribed.
5C
In this section “surrogate”, in relation to a person, means—
a
a deputy appointed for the person by the Court of Protection under section 16(2)(b) of the Mental Capacity Act 2005, or
b
a donee of a lasting power of attorney created by the person,
whose powers, as deputy or donee, consist of or include such powers as may be prescribed.
6
Regulations under this section shall provide that, where direct payments are made in respect of a service which, apart from the regulations, would be provided under section 117 of the Mental Health Act 1983 (c. 20) (after-care)—
a
the payments shall be made at the rate mentioned in subsection (4)(a); and
b
subsection (4)(b) shall not apply.
C57
Regulations made for the purposes of subsection (3)(a) may provide that direct payments shall not be made in respect of the provision of residential accommodation for any person for a period in excess of a prescribed period.
F117A
For the purposes of subsection (3)(d), the conditions that are to be taken to be conditions in relation to direct payments include, in particular, conditions in relation to—
a
the securing of the provision of the service concerned,
b
the provider of the service,
c
the person to whom payments are made in respect of the provision of the service, or
d
the provision of the service.
F167B
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8
In this section “prescribed” means specified in or determined in accordance with regulations under this section.