2014 No. 2871
The Care and Support (Direct Payments) Regulations 2014
Made
Laid before Parliament
Coming into force in accordance with regulation 1
The Secretary of State makes these Regulations in exercise of the powers conferred by sections 33(1) and (2), 75(7), and 125(7) and (8) of the Care Act 20141.
Citation, commencement and interpretation1
1
These Regulations may be cited as the Care and Support (Direct Payments) Regulations 2014 and, subject to paragraph (2), come into force immediately after section 33(1) of the Care Act 2014 comes fully into force2.
2
Regulation 11 comes into force immediately after section 33(1) of the Care Act 2014 comes fully into force unless section 75(7) of that Act comes fully into force later in which case it comes into force immediately after section 75(7) of that Act comes fully into force.
3
In these Regulations—
“the Act” means the Care Act 2014;
“care home” has the meaning given by section 3 of the Care Standards Act 20003.
Cases where a local authority must not meet needs by making a direct payment2
Conditions which must apply to the making of direct payments3
1
Direct payments must be made subject to the condition that they must not be used to pay any person mentioned in paragraph (3) to meet the needs of the adult in respect of whose needs the direct payment is made.
2
Except that, if the local authority considers it is necessary to do so, direct payments may be used to pay a person mentioned in paragraph (3)—
a
to meet the care needs of the adult; or
b
to provide administrative and management support or services for the purpose of enabling a person to whom the direct payments are made to—
i
comply with legal obligations arising from the making of and use of the direct payment, or
ii
monitor the receipt and expenditure of the direct payment.
3
The persons referred to in paragraph (1) are—
a
the spouse or civil partner of the adult;
b
a person who lives with the adult as if their spouse or civil partner;
c
a person living in the same household as the adult who is the adult’s—
i
parent or parent-in-law,
ii
son or daughter,
iii
son-in-law or daughter-in-law,
iv
stepson or stepdaughter,
v
brother or sister,
vi
aunt or uncle, or
vii
grandparent;
d
the spouse or civil partner of any person specified in sub-paragraph (c) who lives in the same household as the adult; and
e
a person who lives with any person specified in sub-paragraph (c) as if that person’s spouse or civil partner.
4
A direct payment made under section 32 must be made subject to the condition that the authorised person7 must—
a
notify the local authority if the authorised person reasonably believes that the adult no longer lacks the capacity to request the making of direct payments; and
b
if paragraph (5) applies, obtain—
i
an enhanced criminal record certificate issued under section 113B (enhanced criminal record certificate) of the Police Act 19978, or
ii
verification that a satisfactory certificate of that type under that Act has been obtained,
in respect of any person from whom a service in respect of which a direct payment is made is secured.
5
This paragraph applies if the authorised person is—
a
a body corporate;
b
an unincorporated body of persons;
c
an individual who is not a person mentioned in paragraph (3); or
d
an individual who is not a friend of the adult who is involved in the provision of care for the adult.
Conditions which may apply to the making of direct payments4
1
A local authority may make a direct payment subject to other conditions.
2
The conditions referred to in paragraph (1) may, in particular, require that—
a
the needs may not be met by a particular person;
b
the adult or authorised person (in the case of direct payments made under section 32 of the Act) must provide information to the authority.
3
The conditions referred to in paragraph (1) may not require—
a
the needs of the adult to be met by any particular person; or
b
information to be provided to the authority—
i
more frequently and in more detail than is reasonably required by the authority for the purpose of enabling it to ascertain that—
aa
making direct payments is an appropriate way to meet the needs in question, or
bb
the conditions upon which it is made are complied with, or
ii
in a format which is not reasonably practicable for the adult or authorised person to provide.
Steps which a local authority must take before making a direct payment under section 32 of the Act5
1
A local authority must take the steps in paragraph (2) before it can be satisfied that condition 5 in section 32 of the Act is met (the local authority to be satisfied that making direct payments to the authorised person is an appropriate way to meet the needs in question).
2
The steps referred to in paragraph (1) are that the authority must—
a
so far as is reasonably practicable and appropriate, consult and take into account the views of—
i
anyone named by the adult as someone to be consulted on the matter of whether direct payments should be made to the authorised person;
ii
anyone engaged in caring for the adult or interested in the adult’s welfare; and
iii
any person who is authorised under the Mental Capacity Act 20059 to make decisions about the adult’s needs for care and support; and
b
so far as is reasonably ascertainable, consider—
i
the adult’s past and present wishes and feelings (and, in particular, any relevant written statement made by the adult when the adult had capacity10 to request the local authority to meet his or her needs by making direct payments);
ii
the beliefs and values that would be likely to influence the adult’s decision if the adult had such capacity; and
iii
other relevant factors that the adult would be likely to consider if he or she were able to do so; and
c
obtain an enhanced criminal record certificate issued under section 113B of the Police Act 1997—
i
in respect of the authorised person if he or she is an individual who is neither a person mentioned in regulation 3(3) nor a friend of the adult who is involved in the provision of care for the adult; and
ii
(in a case where the authorised person is a body corporate or an unincorporated body of persons) in respect of the individual who will, on behalf of that body, have overall responsibility for the day to day management of the adult’s direct payments.
Maximum periods of accommodation in a care home which may be secured by means of a direct payment6
1
A local authority may not make a direct payment for the provision of accommodation in a care home for an adult for a period of more than 4 consecutive weeks in any 12 month period, unless the local authority is one that is mentioned in Schedule 2.
2
In calculating the period of 4 weeks mentioned in paragraph (1), a period of accommodation in a care home of less than 4 weeks shall be added to any succeeding period in such accommodation where the two periods are separated by a period of less than 4 weeks but not otherwise.
Review of direct payments7
1
A local authority must conduct a review for the purpose of ascertaining whether the making of direct payments is an appropriate way to meet the adult’s needs—
a
at least once within the first 6 months of the direct payment being made and at intervals not exceeding 12 months thereafter;
b
if it considers that there has been a breach of a condition and that it may exercise its discretion under section 33(5) of the Act (power to terminate payments or require repayment) in respect of that breach;
c
in the case of a direct payment made to meet the needs of an adult under section 31 of the Act, whenever the local authority considers that—
i
that adult no longer has the capacity to request it to meet any of those needs by the making of direct payments to the adult; or
ii
condition 3 (adult or nominated person is capable) or 4 (making direct payments to adult or nominated person is appropriate) of section 31 of the Act is no longer met;
d
in the case of a direct payment made to meet the needs of an adult under section 32 of the Act, whenever the local authority—
i
considers that the adult no longer lacks the capacity to request the local authority to meet any of those needs by the making of direct payments to the adult; or
ii
is notified by any person of concerns that the direct payment may not have been used to meet the needs for which the payment was made; or
iii
considers, or is notified by any person of concerns, that condition 3, 4 or 5 of section 32 of the Act is no longer met.
2
When complying with its duty in paragraph (1) the local authority must involve—
a
the adult;
b
any carer11 that the adult has;
c
the authorised person to whom the direct payment is being made (in the case of direct payments made under section 32 of the Act);
d
any person who is providing administrative or management support or services in accordance with regulation 3(2)(b); and
e
either—
i
any person whom the adult asks the authority to involve, or
ii
if the adult lacks the capacity to do that—
aa
the person who is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support (if different to the person in paragraph (c)), or
bb
if there is no such person, any person who appears to the authority to be interested in the adult’s welfare.
3
The local authority must take all reasonable steps to reach agreement as to the outcome of the review with—
a
the adult concerned; or
b
if the adult lacks capacity to reach such agreement—
i
the person who is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support, or
ii
where there is no such person, any person who appears to the authority to be interested in the adult’s welfare.
Making of direct payments for an adult who no longer has capacity to request the making of direct payments8
1
For the purpose of ascertaining whether section 33(4) (termination of direct payments) of the Act applies, an adult who lacks capacity to request the making of direct payments may nonetheless be regarded by a local authority as having capacity to do so in the circumstances in paragraph (2).
2
The circumstances are that—
a
the authority is satisfied that the adult’s lack of capacity to make the request is temporary; and
b
another person who appears to the authority to be capable of managing a direct payment is prepared to accept and manage such payments on behalf of the adult during the period of the adult’s incapacity.
Making of direct payments for an adult who no longer lacks capacity to request the making of direct payments9
1
For the purpose of ascertaining whether section 32(1)(b) of the Act ceases to apply, an adult who no longer lacks capacity to request the making of direct payments may nonetheless be regarded by a local authority as lacking capacity to do so in the circumstances in paragraph (2).
2
The circumstances are that—
a
the authority is satisfied that the adult’s capacity to request the authority to meet the needs to which the adult’s personal budget12 relates by making a direct payment is temporary; and
b
the direct payments made during the period that the adult has the capacity to make such a request are made subject to an additional condition that the authorised person shall allow the adult to manage the direct payments themselves for any period in respect of which the authority is satisfied that the adult has the capacity to request the making of direct payments.
Harmonisation with payments made under other legislation10
Where a direct payment is made for an adult for whom payments are made under section 12A (direct payments for health care) of the National Health Service Act 200613 (“the 2006 Act”), the local authority must take reasonable steps to co-ordinate the systems, processes and requirements which it applies or imposes in relation to the direct payment with those which apply in relation to the payments made under the 2006 Act with a view to minimising the administrative or other burdens which they place on the adult for whom, or the nominated or authorised person to whom, the local authority makes the direct payment.
Direct payments in respect of after-care under the Mental Health Act 198311
1
In respect of a direct payment to discharge the duty of a local authority under section 117 (after-care) of the 1983 Act14, these Regulations apply with the following modifications—
a
in regulation 2 for “meet needs” substitute “discharge its duty under section 117 of the 1983 Act”;
b
in regulation 3—
i
in paragraph (1), for “meet the needs of the adult in respect of whose needs the direct payment is made” substitute “provide after-care services to the adult to discharge the duty under section 117 of the 1983 Act”, and
ii
in paragraph (2)(a), for “meet the care needs of the adult” substitute “provide after-care services to the adult to discharge the duty under section 117 of the 1983 Act”;
c
in regulation 4—
i
in paragraph (2)(a), for “needs may not be met” substitute “after-care services may not be provided”,
ii
in paragraph (3)(a), for “needs of the adult to be met” substitute “after-care services to be provided”, and
iii
in paragraph (3)(b)(i)(aa), for “meet the needs in question” substitute “discharge its duty under section 117 of the 1983 Act”;
d
in regulation 5, in paragraph (2)(b)(i), for “meet his or her needs by making direct payments” substitute “make payments to the adult or a person nominated by the adult that are equivalent to the cost of providing or arranging for the provision of after-care services for the adult under section 117 of the 1983 Act”;
e
in regulation 7—
i
in paragraph (1), for “meet the adult’s needs” substitute “discharge its duty under section 117 of the 1983 Act”,
ii
in paragraph (1)(c), for “to meet the needs of an adult under section 31 of the Act” substitute “discharge its duty under section 117 of the 1983 Act”,
iii
in paragraph (1)(c)(i), for “meet any of those needs” substitute “make payments to the adult or a person nominated by the adult that are equivalent to the cost of providing or arranging for the provision of after-care services for the adult under section 117 of the 1983 Act”,
iv
in paragraph (1)(d), for “to meet the needs of an adult under section 32 of the Act” substitute “under section 32 of the Act to discharge its duty under section 117 of the 1983 Act”,
v
in paragraph (1)(d)(i), for “meet any of those needs” substitute “make payments to the adult or a person nominated by the adult that are equivalent to the cost of providing or arranging for the provision of after-care services for the adult under section 117 of the 1983 Act”,
vi
in paragraph (1)(d)(ii), for “to meet the needs” substitute “only to pay for arrangements under which after-care services for the adult are provided under section 117 of the 1983 Act”,
vii
in paragraph (2)(e)(ii)(aa) and (3)(b)(i), for “the adult’s needs for care and support” substitute “the provision of after-care services under section 117 of the 1983 Act”; and
f
in regulation 9, in paragraph (2), for “meet the needs to which the adult’s personal budget relates” substitute “make payments to the adult or a person nominated by the adult that are equivalent to the cost of providing or arranging for the provision of after-care services for the adult under section 117 of the 1983 Act”.
2
In this regulation “the 1983 Act” means the Mental Health Act 1983.
Signed by authority of the Secretary of State for Health.
SCHEDULE 1Adults Whose Needs the Local Authority Must Not Meet By Making Direct Payments
This Schedule applies to a person if they are—
a
subject to a drug rehabilitation requirement, as defined by section 209 (drug rehabilitation requirement) of the Criminal Justice Act 2003 (“the 2003 Act”)15, specified in a community order (as defined by section 177 (community orders) of that Act16, or a suspended sentence order (as defined by section 18917 of that Act);
b
subject to an alcohol treatment requirement, as defined by section 212 of the Criminal Justice Act 200318, specified in a community order (as defined by section 177 of that Act), or a suspended sentence order (as defined by section 189 of that Act);
c
released from prison on licence—
i
under Chapter 6 of Part 12 (sentencing: release, licenses and recall) of the 2003 Act19 or Chapter 2 of Part 2 (effect of custodial sentences: life sentences) of the Crime (Sentences) Act 1997 (“the 1997 Act”)20, subject to a non standard licence condition requiring the offender to undertake offending behaviour work to address drug or alcohol related behaviour; or
ii
d
required to comply with a drug testing or a drug appointment requirement specified in a notice given under section 256AA (supervision after end of sentence of prisoners serving less than 2 years) of the 2003 Act23;
e
required to submit to treatment for their drug or alcohol dependency by virtue of a community rehabilitation order within the meaning of section 41 of the Powers of Criminal Courts (Sentencing) Act 200024 or a community punishment and rehabilitation order within the meaning of section 51 of that Act;
f
subject to a drug treatment and testing order imposed under section 52 of the Powers of Criminal Courts (Sentencing) Act 200025;
g
required to submit to treatment for their drug or alcohol dependency by virtue of a requirement of a community payback or probation order within the meaning of sections 227 to 230 of the Criminal Procedure (Scotland) Act 199526 or subject to a drug treatment and testing order within the meaning of section 234B27 of that Act; or
h
released on licence under section 22 or section 26 of the Prisons (Scotland) Act 1989 (release on licence etc)28 or under section 1 (release of short-term, long-term and life prisoners) or 1AA (release of certain sexual offenders) of the Prisoners and Criminal Proceedings (Scotland) Act 199329 and subject to a condition that they submit to treatment for their drug or alcohol dependency.
SCHEDULE 2List Of Local Authorities Who Are Not Prohibited From Making A Direct Payment For The Purpose Of Securing Long Term Care In A Care Home
Bristol City Council
Cornwall Council
Dorset County Council
Gateshead Council
Hertfordshire County Council
Hull City Council
Lincolnshire County Council
London Borough of Enfield
London Borough of Havering
London Borough of Redbridge
Manchester City Council
Milton Keynes Council
Norfolk County Council
North Lincolnshire Council
Nottinghamshire County Council
Staffordshire County Council
Stockport Council
Surrey County Council
(This note is not part of the Regulations)