29 Adults without capacity to request direct payments
This clause makes similar provision as in clause 28 for adults who lack, or who the local authority believes lack, the capacity to request a direct payment. It requires the local authority to make a direct payment to an authorised person who requests one, provided the five conditions set out in the clause are met
(1) This section applies where—
(a) a personal budget for an adult specifies an amount which the local authority must pay towards the cost of meeting the needs to which the personal budget relates, and
(b) the adult lacks, or the authority believes that the adult lacks, capacity to request the local authority to meet any of those needs by making payments to the adult, but
(c) an authorised person requests the local authority to meet some or all of those needs by making payments to the authorised person.
(2) If conditions 1 to 5 are met, the local authority must, subject to regulations under section 30, make the payments to which the request relates to the authorised person.
(3) A payment under this section is referred to in this Part as a “direct payment”.
(4) A person is authorised for the purposes of this section if—
(a) the person is authorised under the Mental Capacity Act 2005 to make decisions about the adult’s needs for care and support,
(b) where the person is not authorised as mentioned in paragraph (a), a person who is so authorised agrees with the local authority that the person is a suitable person to whom to make direct payments, or
(c) where the person is not authorised as mentioned in paragraph (a) and there is no person who is so authorised, the local authority considers that the person is a suitable person to whom to make direct payments.
(5) Condition 1 is that, where the authorised person is not authorised under subsection (4)(a) but there is at least one person who is so authorised, a person who is so authorised supports the authorised person’s request.
(6) Condition 2 is that—
(a) the authorised person is not prohibited by regulations under section 30 from receiving direct payments, or
(b) where the regulations give the local authority discretion so to decide, it decides that the authorised person should not be prohibited from receiving direct payments.
(7) Condition 3 is that the local authority is satisfied that the authorised person will act in the adult’s best interests in arranging for the provision of the care and support for which the direct payments under this section would be used.
(8) Condition 4 is that the local authority is satisfied that the authorised person is capable of managing direct payments—
(a) by himself or herself, or
(b) with whatever help the authority thinks the authorised person will be able to access.
(9) Condition 5 is that the local authority is satisfied that making direct payments to the authorised person is an appropriate way to meet the needs in question.
Proposal for an additional subsection/condition
(10) Condition 6 is that the local authority may require the authorised person to maintain financial transactions of all direct payments used for inspection or review by the local authority.
As a front-line social care professional, I find it very difficult to review individual personal budgets and direct payments with poor maintenance of record keeping.
These comments are from Preston Learning Disabilities Forum comprising service users, carers and provider reps as well as some specific local authority post-holders
Concerns about the protection for vulnerable people over how their funding is managed for them and used applies to anyone managing on their behalf – provider, family or whoever.
The incapacitated person should be helped to understand as much as they can about the money and how it is to be used – time and effort should be given – and MCA expects that everything possible is done to help the person who lacks capacity to understand what they can too.
A plan and contract between the person and manager of the money should involves the person and makes it as accessible as possible.
Also look to some independent contact point whom they can use if concerned/who might scrutinise.
It makes for a broker or Circle of support offering protection as a preferred option for the money management.
There could be a spot check by the assessor at some point during the year relating to a part of the programme of individual support expected to be happening
Tokens instead of money were suggested but this would make the LA responsible when they are not in a position to be so – eg for a PA’s employment.
Concern to make sure the level of risk is identified in the assessment and the support plan identifies the safeguards – not making judgements about the provider/family but acknowledging the need for some independence in the plan somewhere