Personalisation and Individual Budgets Workshop

1
Personalisation and Individual BudgetsWorkshop
deployment options, safeguarding, and liability
Belinda Schwehr Legal and Training
Consultant belinda_at_careandhealthlaw.com www.carean
dhealthlaw.com Tel [phone]
2
Lawful deployment options

• Traditional (and non-traditional) contracting by
  LA staff, with LA money, for LA functions under
  statute but stretching them to their fullest
  possible interpretation.
• Common law and s2 LGA well-being agency
  arrangements with LA staff, for use of the Direct
  Payment for community care type things and for
  non-community care type things (but subject to
  well-being policy).
• Formal direct payments for capacitated people
  using helpers as managers, and for incapacitated
  peoples surrogates. Both these have legal
  authority to manage.
• Formal direct payments for incapacitated people
  using representatives, with arrangements for them
  to pledge the credit of the service user.
• Indirect payments, through contract, to circles
  of support, voluntary organisations, user
  independent trusts, user controlled trusts and
  self-employed individuals, etc.
• Direct payments to carers for unfettered Carers
  Services and also for some community care
  services for the end user, within the rules about
  intimate services.
• S2 well-being financial assistance and service
  provision to individuals, subject to policy.
• Simply processing payments where a best interests
  decision maker has pledged the incapacitated
  persons credit, in their virtual IB.
• Grants for voluntary organisations to do things,
  below the eligibility threshold, or outside of
  community care functions.

3
What are Indirect Paymentsfor social care
services? 

• Proper LA Indirect Payments do not require
  capacitated consent on the part of the service
  user, and are legal under the terms of s30 NAA
  payment to an individual, so long as they are
  carrying on a trade or business, or to a
  voluntary organisation, such as a UIT that is a
  company, limited by guarantee as agent for the
  local authority for welfare decision making and
  provision. 
• An indirect payment tends to be a payment to an
  organisation not merely to provide the care, but
  to decide what to provide, and to organise it,
  either by buying it or employing it.
• A real life example is found in the East Sussex
  case involving a company limited by guarantee,
  directed by 5 people, the mother, stepfather,
  disability rights worker, advocate and LA care
  manager. 

4
The drawback of a s30 vehicle

• Unfortunately it is highly probable that the fact
  that the provider acts as agent for the
  authority, even if an individual, triggers the
  duty to register the provider as a domiciliary
  care agency see the Care Standards Act for the
  trigger scenario, which is arranging (not merely
  providing) personal care, for people who cannot
  do it for themselves. 
• This would mean that the indirect payment
  recipient had to CRB anyone it was thinking of
  employing to do the care work which would
  actually be good from the perspective of
  protection, but off-putting to relatives who
  would otherwise wish to employ unregistered
  personal assistants, perhaps.
• And off-putting to government and the Care
  Quality Commission because of the economics of
  staffing up to do this much regulation?

5
The National Assistance Act and the relationship
of agency it creates when money is given away by
an LA to a voluntary organisation in an indirect
payment

• s30. Voluntary organisations for disabled
  persons welfare.
• (1) A local authority may, in accordance with
  arrangements made under section 29 of this Act,
  employ, as their agent, for the purposes of that
  section
• any voluntary organisation or
• any person carrying on, (professionally or by way
  of trade or business), activities which consist
  of or include the provision of services for any
  of the persons to whom section 29 above applies,
• being an organisation or person appearing to the
  authority to be capable of providing the service
  to which the arrangements apply.

6
The arrangements can be summarised as follows

• Thus
• i) No payments are made by ESCC either to A and B
  or to X and Y. All payments under the Contract
  are made to the Company the user independent
  trust.
• ii) The Company is a legal entity quite distinct
  from both A and B and from X and Y Salomon v
  Salomon Co 1897 AC 22.
• iii) X and Y do not control the Company. They do
  not have a majority of the votes on the Board
  and, since the Trustees act by majority, nor do
  they have a veto.
• iv) The Company is a non profit-making
  organisation. It can make no distribution to its
  members and any surplus on winding-up has to be
  repaid to ESCC. Thus this is not a trust that can
  be 'broken' by the family under the rule in
  Saunders v Vautier (1841) 4 Beav 115.

7
The judge said that that contracts with user
independent trusts were a legal way to provide
social care

• See for yourselves http//www.bailii.org/ew/cases
  /EWHC/Admin/2002/2771.html
• LA payment to a user independent trust is on the
  face of it, within the scope of the statutory
  power in section 29(1) of the 1948 Act to "make
  arrangements" for the provision of the relevant
  services. The use of a user independent trust in
  this context is intra vires a local authority. It
  is within the powers expressly conferred on a
  local authority by section 30(1).
• Whats one of these, then?
• A 'User independent trust' is not, as I
  understand it, a term of art but merely a label
  conventionally used to describe the key component
  in a certain type of arrangement. The particular
  arrangement under consideration in the present
  case can be briefly described. It consists of two
  components.

8
What the User Independent Trust really boiled
down to a contract with a company.

• The draft Memorandum of Association of the
  Company provides
• - by clause 3 that "The object for which the
  Company is established is for the sole purpose of
  providing, or arranging to be provided support,
  rehabilitation, recreational activities and care
  to A and B."
• - by clause 5 that no Trustee shall be
  appointed to any office of the Company paid by
  salary or fees or receive any remuneration or
  other benefit in money or money's worth from the
  Company".
• - by clause 8 that "If the Company is wound up
  or dissolved and there remains any money or
  property it shall not be paid to or distributed
  among the Members of the Company, but shall be
  given or transferred to the Statutory Authority
  responsible under Community Care Legislation to
  provide support, rehabilitation and care to A
  and B."

9
The other important bit of a s30 arrangement
which is legal, now

• The other component is a 'Contract for the
  provision of support to A and B' ("the
  Contract") to be entered into by the Company and
  ESCC.
• What is described as the basis of contract is set
  out in clause 2. Clause 2.1 provides that "This
  Agreement aims to enable as far as is possible
  flexible provision of care services to A and
  B to be arranged by the Company. These
  arrangements will in turn support X and Y in
  their role as carers."
• Clause 2.3 provides that "This Agreement
  establishes responsibilities on the part of
  ESCC and the Company, as set out in the
  attached Service Specification as it relates to
  the individual care plans for A and B".
• The draft Service Specification provides, that
  ESCC will pay to the Company the funding
  identified by ESCC's social services department
  to meet the agreed needs of A and B, as detailed
  in their individual care plans, and that the
  Company will ensure that all services purchased
  and arranged comply with the agreed care plans.

10
The judge said there are effectively 6 legal ways
to give social services to someone

• The 1948 Act, read in conjunction with the 1996
  Act, contemplates that section 29 services can be
  provided or paid for by a local authority in four
  different ways
• i) by the local authority itself providing the
  services section 29(1)
• ii) by the local authority arranging for another
  local authority to provide the services
  paragraph 3
• iii) by the local authority employing a suitably
  qualified voluntary organisation or individual to
  act as their agent section 30(1) or
• iv) by the local authority making a direct
  payment to the (capacitatedly consenting)
  end-user under the 1996 Act.
• AND
• iv) It would, by virtue of section 111 of the
  1972 Act, be intra vires ESCC to make use of a
  user independent trust it would, in my judgment,
  be intra vires ESCC to make payment of monies to
  the Company in accordance with the Contract.
• vi) It would, by virtue of section 2 of the 2000
  Act, also be intra vires ESCC to make use of a
  user independent trust it would, in my judgment,
  be intra vires ESCC to make payment of monies to
  the Company in accordance with the Contract.
• He missed out grants to community organisations
  to provide services which avoid eligibility, but
  never mind.

11
But is that the end of all our problems then?

• The crucial question is to what extent does s2
  allow us to do things that we are forbidden to
  do, under the community care framework?
• And what about the Dom Care registration point?
  Arranging personal care for incapacitated people
  cannot merely be regarded as helping them to help
  themselves (see following slides).

12
Capacitated vs incapacitated people why it
matters for personalisation

• Whatever we call it, a helping person, who is
  positively chosen or accepted by the client, with
  mental capacity, in the context of a direct
  payment, is a manager, a real representative,
  acting for that person as his or her agent.
• That means that the services are bought BY THE
  principal, ie the user, albeit with help, NOT
  arranged FOR that person, which is critically
  important, if we all want to avoid registration
  law, in my view.

13
But informal agency doesnt last forever

• A the service user recognises that he or she
  needs help sorting out their finances and staying
  on top of them, and getting services
• A recognises that B is better at it than A
  is and lets B get on with it or takes Bs
  advice
• A gives B certain rights, and a remit, and
  limits and constrains B in certain other
  respects
• If B misbehaves, and A has paid B for the
  help, or B has held themselves out for A to
  rely on for advice, A has a civil remedy
  against B, for breach of contract or negligent
  mis-statement.
• Bs right to act for A falls in once A can
  no longer manage giving instructions or revoke
  Bs authority
• How would anyone know A has lost capacity?

14
Capacitated vs incapacitated people why it
matters

• An incapacitated person cannot appoint or choose
  an agent he can only have a statutory agent
  appointed by the Court of Protection.
• Anyone else ( apart from a deputy or attorney
  who are lawful surrogates who count AS the person
  - ) ie a carer, relative, spouse or agency, or
  trustees, contracting supposedly for that
  person, do so, in law, as either someone elses
  agent (ie the LAs, under an indirect payment) or
  in their own name.which is kind of important, I
  feel, for identifying things like who should be
  taking out insurance, who is liable for injury to
  client or car worker, who is liable for debts to
  providers, etc...!

15
The Care Standards REGISTRATION consequences of
small entities arranging or providing personal
care

• In England, the arranging of, or the providing of
  personal care, by 'an undertaking', triggers
  registration as a domiciliary care agency under
  the Care Standards Act.
• There are similar rules covering the provision of
  nursing services (not for merely arranging of
  them, mind you).
• These registration steps involve expense, a level
  of bureaucracy and the recruitment of only
  registered care workers for hands-on personal
  care tasks.
• The staff, in turn, have to do NVQs etc - so it
  is not a popular route to go down, even if a
  'third party' or 'indirect' payment, as it is
  known in social care circles, under s29 and s30
  of the NAA, has been embraced by the Local
  Authority, to enable the close family (either
  informally as individuals, or from within a
  voluntary organisation), to be in charge of the
  care of someone too incapacitated to say yes to
  a Direct Payment for themselves, and accept help
  from a relative to manage the money.

16
Could it be legal for third parties to be paid to
arrange care for incapacitated people, without
being registered as a DCA?

• The definition of an undertaking in s121 CSA is
  as follows
• An undertaking includes any business or
  profession and
• - in relation to a public or local authority -
  includes the exercise of any functions of that
  authority, and -
• in relation to any other body of persons,
  whether corporate or unincorporated, includes any
  of the activities of that body.
• So informal groups such as circles of support or
  Trusts, whose support activities amount to
  arranging personal care for incapacitated people,
  could clearly count.
• Whether it is being done for profit is not an
  essential part of the concept see next slide,
  s121(5). Neither is whether the activity being
  done is in the nature of a trade or profession,
  unlike in s29 NAA, by an ordinary contractor.
• The notion of an undertaking must also be able to
  include private individuals, because individuals
  come within the definition of excepted
  undertakings, and that would make no sense, if
  individuals could not ever count as undertakings
  in the first place

17
Care Standards Act definitions of relevance

• s4(3) Domiciliary care agency means, subject to
  subsection (6), an undertaking which consists of
  or includes arranging the provision of personal
  care in their own homes for persons who by reason
  of illness, infirmity or disability are unable to
  provide it for themselves without assistance.
• s121(5) References in this Act to a person who
  carries on an establishment or agency include
  references to a person who carries it on
  otherwise than for profit.
• s(6) The definitions in subsections (2) to (5) do
  not include any description of establishment,
  undertaking or organisation excepted from those
  definitions by regulations.
• s4(5) Nurses agency means, subject to
  subsection (6), an employment agency or
  employment business, being (in either case) a
  business which consists of or includes supplying,
  or providing services for the purpose of
  supplying, registered nurses, registered midwives
  or registered health visitors.

18
Excepted undertakings (taken from the Dom Care
Regulations 2002)

• Reg 3.
• For the purposes of the Act, an undertaking is
  excepted from the definition of domiciliary care
  agency in section 4(3) of the Act if the
  undertaking is carried on by an individual who
• (a) carries it on otherwise than in partnership
  with others
• (b) is not employed by an organisation to carry
  it on and
• (c) does not employ any other person for the
  purpose of the undertaking.
• Reg 2
• (3) In these Regulations, the terms employed
  and employment include employment under a
  contract of service or a contract for services,
  or otherwise than under a contract and whether or
  not for payment.
• (ie, being engaged by an organisation, or even
  being grant funded, or doing it as a
  Representative under the new legislation for
  incapacitated peoples direct payments, may make
  no difference).

19
Legality of third parties being paid to arrange
care for incapacitated people, without being
registered

• An excepted undertaking includes an individual
  who even though he or she arranges or provides
  personal care, does not do so on
• a partnership basis, (this does bring in a notion
  of doing it for profit, so might let relatives or
  parents out, if spending their own money, I would
  say)
• and is not employed by an organisation
• nor engaged by an organisation to do so, (again
  this lets parents and relatives out, if they are
  spending their own money, but not if they are
  spending the Local Authoritys money)
• and does not employ anyone else (enables parents
  to buy (registered) services from agencies, but
  not employ people with an incapacitated persons
  direct payment or an IB.)
• So an individual care worker can physically
  provide care to someone else, and not register,
  if they are a one person set-up, just providing
  care to people on direct payments, for instance.
• An individual parent, however, providing by way
  of arranging or employing personal care for an
  incapacitated person, as agent of the authority,
  would seem to me to be plainly outside this
  exception to registration.

20
Who doesnt have to register?

• Here are some examples, reasoned through
• A) a brokerage agency merely supporting a person
  with capacity to spend a direct payment those
  people are just being helped to make
  arrangements, for their own careThe CSCI page on
  whether registration is necessary illustrates
  this distinction perfectly none of the people
  helping without any need to be registered, are
  helping incapacitated people
• B) parents, informally appointed by their own
  capacitated son or daughter, spending the
  persons own benefits money this is merely
  helping the person make their own arrangements,
  once again
• C) parents simply spending their own money on
  agency services for their own adult incapacitated
  son or daughter, because they are an excepted
  undertaking - they are not doing it in
  partnership, and are clearly not acting as any
  LAs or PCTs employee or agent.

21
Examples of very inconveniently registrable
entities, in my view

• A tenants association eg self-funding elderly
  people, contributing a monthly sum towards their
  combined care costs, clubbing together to arrange
  services, including some personal care services,
  for some of the owner-occupiers who are now
  incapacitated, without lawful surrogates.
• Possibly not - if all the occupants of the flats
  are capacitated, or if they are incapacitated
  with surrogates, because the association can then
  be seen as helping people to make their own
  individual arrangements.
• But bound to be registrable if the Association
  employs anyone to provide anything that could
  possibly be seen as personal care.

22
Examples of other very inconveniently registrable
entities

• Parents spending their own money to employ other
  people to care for their relative they score on
  two out of 3 of the requirements for exception
  from registration, but miss out on the third
  employing a person. How useless is that?
• A care broker acting for an incapacitated person,
  accessing social care monies for them and then
  formally contracting for the person the
  broker cant be their agent, in law, so would
  probably be seen as arranging on account of the
  LA.even if no SLA existed between it and
  him/her.
• A credit union, whether incorporated or
  unincorporated, actually contracting for personal
  care services, if any of the investors are
  incapacitated.

23
Why is Welsh regulation better?

• Under the 2004 Domiciliary Care Agencies Regs, in
  Wales, NOT in England please note, the
  regulations provide for a wider definition of
  excepted undertakings than exists in England
• Excepted undertakings
•  3.  - (1) For the purposes of the Act, an
  undertaking is excepted from the definition of
  "domiciliary care agency" in section 4(3) of the
  Act  - 
• (c) to the extent that it arranges the provision
  of personal care by an agreement with an
  undertaking which is registered under the Act and
  these Regulations.
• This flexibility allows for anyone to arrange
  personal care without being registered, even for
  incapacitated people, so long as it is doing it
  by way of an agreement with a registered entity,
  ie, under s30 of the National Assistance Act, via
  a contract with a registered local authority.
• Therefore, unregistered indirect payment
  arrangements to incapacitated people under s2
  Local Government Act 2000 or s30 National
  Assistance Act are already perfectly lawful, in
  Wales, because every LA can be registered and
  should be registered itself, as an arranger of
  personal care.

24
Points to remember when dealing with
so-called Trusts for using IBs  

• User Independent Trusts are Trusts that are
  independent of an incapacitated user they are a
  model form of voluntary organisation for use in
  s30 arrangements. Their existence and origins
  connote incapacity on the part of the client.
  Therefore when the members arrange something,
  they are doing it FOR the other person, not in
  the name OF the other person, as would a Deputy
  or an Attorney.
• Independent User Trusts are wholly different
  they are circles of support for service users who
  need help to run a direct payment, but who can,
  fundamentally, consent and understand that they
  are in charge. Calling this form of vehicle a
  User Controlled trust is much clearer and as
  such it can be seen simply as a management
  agreement as between the client and the circle,
  granting them dominion over the persons
  entitlement to direct payments.

25
The pros and cons of direct payments, right now

• With regard to Conditions on Direct Payments,
  clients need to know that LAs have these powers,
  already
• (4) A responsible authority may make a direct
  payment subject to such other conditions (if any)
  as they think fit.
• (5) The conditions referred to in paragraph (4)
  may, in particular, require that the
  payee - (a) shall not secure the relevant
  service from a particular person (this means
  company as well as an individual) and(b)
  shall provide such information to the responsible
  authority as they consider necessary in
  connection with the direct payment.

26
The law on what happens to the duty to provide,
when a person takes a direct payment

• Reg 8. (1) Except as provided by paragraph (2),
  the fact that an authority make a direct payment
  shall not affect their functions with respect to
  the provision under the relevant enactment of the
  service to which the payment relates.
• (2) Where a responsible authority make a direct
  payment, they shall not be under any obligation
  with respect to the provision under the relevant
  enactment of the service to which the payment
  relates as long as they are satisfied that the
  need which calls for the provision of the service
  will be secured by the payees own arrangements.

27
Why direct payments are no good for those needing
residential care

• Maximum periods of residential accommodation
  which may be secured by means of a direct
  payment    
• Reg 7.  (1) Subject to paragraph (2), a direct
  payment may not be made in respect of a person
  who falls within regulation 2(1) for the
  provision to him of residential accommodation of
  a period in excess of 4 weeks in any period of 12
  months.

28
The new extension of the DP system to
incapacitated people

• Draft Regulation 8 sets out the circumstances
  where an authority shall make direct payments to
  persons lacking mental capacity. It is a duty in
  just the same circumstances as it would be for a
  capacitated person, ie only if the authority is
  satisfied that it can meet the needs of the
  person concerned satisfactorily.
• This regulation contains steps which the
  authority must take before being satisfied as to
  the fitness of the managing recipient, one of
  which is getting a CRB, unless the person is a
  close relative of the service user. Another is
  consultation of people living with the service
  user, close relatives and any friend of theirs,
  involved in the care.

29
Criteria for choosing S, the recipient

• The authority must be satisfied that the other
  person
• will act in the best interests, within the
  meaning of the Mental Capacity Act 2005, of P
  when securing the provision of services in
  respect of which the direct payment is made and
• appears to the responsible authority to be
  capable of managing a direct payment and
• in all the circumstances it is appropriate for a
  direct payment to be made to S.
• Draft Regulation 10 sets out the amount and
  payment of direct payments to persons lacking
  mental capacity. There is a choice about paying
  gross or net.
• I think it would be better to pay gross, where
  there is any concern that the managing person may
  have an interest in the assets of the service
  user remaining as healthy as possible. The
  authority can still levy invoices for the charges
  against the person and recover them from the
  persons estate or through debt recovery, later.

30
Applying Conditions to Direct Payments . . . in
the future

• Draft Regulation 12 specifies conditions which
  shall be made in respect of direct payments to
  persons lacking the capacity to consent
  respectively. In all such cases, S shall
• (i) act in the best interests, within the meaning
  of the Mental Capacity Act 2005, of P, when
  securing the provision of services in respect of
  which the direct payment is made
• (ii) provide such information to the responsible
  authority as they consider necessary in
  connection with the direct payment
• (iii) if S is not a person mentioned in
  regulation 8(2)(a) (ie not a close relative or
  friend), obtain a criminal record certificate
  issued under section 113B of the Police Act 1997,
  or obtain verification that a satisfactory
  certificate 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
• (iv) notify the responsible authority if S
  reasonably believes that P no longer falls within
  section 57(5A) of the 2001 Act and
• (v) use the direct payment for securing
  the provision for P of the services for
  which the payment was made
• and the payment may be made subject to such
  other conditions (if any) as the authority think
  fit.

31
What does this mean for safeguarding and CRB
checks?

• This seems to me to mean that if the recipient
  manager is not a close relative, the LA shall
  insist that they get a CRB for anyone that is
  going to do the work.
• Ie the fact of a close relationship means that
  the recipient will somehow make a better choice
  from the small ads, without the benefit of a
  police check.
• Non-sensical, to my mind.
• A professional broker or an organisation (rather
  than a close relative or friend) chosen to be a
  persons representative will have to get a worker
  checked, even though that worker is going to be
  working for a beneficiary of a direct payment.

32
Relationship to ISA provisions

• This fits with the ISA rules coming into force
  soon
• Those who are closely working, or applying to
  work, with vulnerable adults will be required to
  make an application to the Secretary of State to
  be "subject to monitoring" .
• This will cover everyone engaging in what the Act
  refers to as "regulated activity" with the
  permission of a "regulated activity provider".
• There are a series of criminal offences to
• a.  prevent barred individuals from engaging in
  regulated activity in relation to children or
  vulnerable adults
• b.  ensure that people permitted to engage in
  regulated activity in relation to children or
  vulnerable adults with the permission of a
  "regulated activity provider" are subject to
  monitoring
• c.  ensure that relevant employers check an
  individual's status in the scheme before
  permitting an individual to engage in regulated
  activity in relation to children or vulnerable
  adults

33
Regulated activities and regulated activity
PROVIDERS

• For an activity to be considered as regulated
  activity, alongside the satisfaction of criteria
  relating to the activity and/or establishment
  where it takes place, it must be carried out by
  the same person, frequently or satisfy the
  period condition ie intensively.
• All care and supervision and training and
  instruction Is regulated activity.
• But the definition of a regulated activity
  provider excludes those on direct payments and
  those spending direct payments on close relatives
  or friends
• (5) P is not a regulated activity provider if he
  is an individual and the arrangements he makes
  are private arrangements.
• (6) Arrangements are private arrangements if the
  regulated activity is for, or for the benefit of,
  P himself. ie buying your own care
• (7) Arrangements are private arrangements if the
  regulated activity is for, or for the benefit of,
  a child or vulnerable adult who is
• (a) a member of P's family
• (b) a friend of P.
• ie individuals buying care for their family or
  friends do not have to check the list, but can do
  so if they want to
• AND if the worker works for this sort of an
  individual, the worker does not have to register
  to be subject to monitoring.

34
Other let-outs

• 58 Family and personal relationships
• (1) This Act does not apply to any activity which
  is carried out in the course of a family
  relationship.
• (2) This Act does not apply to any activity which
  is carried out
• (a) in the course of a personal relationship, and
• (b) for no commercial consideration.
• So if the recipient manager is not a close
  relative of the client, but chooses to employ
  someone who IS a close relative of the recipient
  of the service, the worker doesnt have to
  register for monitoring but they do need to be
  CRBd under the draft regulations for
  incapacitated peoples direct payments.
• Got that, now?

35
So where does this get us to, for the purposes of
personalisation?

• Anyone receiving care in their own home would be
  vulnerable
• Anyone providing frequent care, supervision or
  advice, with the permission of a RAP, would have
  to become registered to be subject to monitoring.
• A Local Authority could report anyone, even a
  direct payments worker, to the Independent
  Barring Board.
• BUT RAP status does not attach to anyone
  getting care or advice for themselves so a new
  DP worker who has never been subject to
  monitoring wont be obliged to become registered
  with the ISA to do their job, because they are
  not going to be doing the job with the
  permission of a regulated activity provider!
• A DP client could look to see if the person they
  want to employ was barred at some earlier point.
• A person buying care for a family or friend is
  not a RAP, so is not obliged to check that the
  person is subject to monitoring or barred and
  nor are they obliged to buy care from a person
  who is registered to be subject to monitoring
• A non-individual (ie a corporate structure)
  buying or organising care for a family member or
  friend is a RAP, so would have to check that a
  potential worker was not barred, and could not
  employ a person to offer to a client, unless the
  worker was subject to monitoring.
• A representative who is NOT a close relative must
  get a person CRBd but if the employee is a close
  relative of the service user then that person
  need not register to be subject to monitoring.

36
Carers Direct Payments.

• LAs can give a direct payment to a carer, for the
  carer to spend on themselves (and there are
  really no limits to what it can be spent on) or
  directly, on services directly for the persons
  benefit.
• But for the latter, there are rules about it
  needing to be for community care types of things,
  and about it not being intimate personal care
  services for the service user, unless they are
  asking for them or they are absolutely
  essential to avoid harm, which doesnt work very
  well for regular and ongoing personal care
  packages.
• We get round this in Richmond, by treating a
  person who can at least show displeasure, as
  asking for the service so long as they are NOT
  showing displeasure.
• As a matter of policy, we dont let the carer pay
  themselves for caring, down either of these
  routes.
• The idea that the carer is the employer, the
  employee and the decision-maker is just too
  boggling for the Revenue and for liability
  purposes, we think.

37
The exception from the prohibition in relation to
intimate personal care

• (2) Where a service is being delivered to the
  person cared for and
• (a) during the delivery of that service the
  person cared for asks the person delivering the
  service to provide a service of an intimate
  nature or
• (b) the person cared for is in a situation in
  which he is likely to suffer serious personal
  harm unless a service of an intimate nature is
  provided to him and
• the person cared for is unable to consent to the
  provision of that service, or
• the person providing the service reasonably
  believes it is necessary to provide that service
  because the likelihood of serious personal harm
  to the person cared for is imminent
• a service of an intimate nature may be provided.

38
Can a payment or a favour ever be made/done by
the authority, under other legislation? S2 LGA
2000

• The Local Government Act 2000 section 2 enables a
  local authority to do anything they consider
  likely to promote the wellbeing for social,
  economical or environmental reasons, subject to
  section 3 which prohibits the use of section 2 to
  raise money.
• In 2001 Paragraph 6 government guidance stressed
  that
• the purpose of introducing the well-being
  power is to reverse that traditional cultural
  approach, (ie that LAs need specific statutory
  authority to do anything) and to encourage
  innovation and closer joint working between local
  authorities and their partners to improve
  communities

39
What does it cover, in theory?

• 2 (4) The power under subsection (1) includes
  power for a local authority to
• (a) incur expenditure,
• (b) give financial assistance to any person,
• (c) enter into arrangements or agreements with
  any person, ie it could be an ordinary spouse or
  parent, because the person does not have to be
  carrying on a trade or a business or be a
  voluntary organisation
• (d) co-operate with, or facilitate or co-ordinate
  the activities of, any person,
• (e) exercise on behalf of any person any
  functions of that person, ie be the persons
  agent, with the persons capacitated consent and
• (f) provide staff, goods, services or
  accommodation to any person.

40
What are the limits to section 2 LGA 2000?

• Section 3 of the LGA 2000 limits the use of
  section 2.
• Section 3 prevents the use of the powers in
  section 2 if there is a prohibition or
  restriction or limitation in or under other
  statutory provisions, and prevents the use of
  section 2 to raise money (ie make profit).
• It does not prevent a local authority from
  charging for services provided under section 2
  LGA. Fairer Charging would not apply to anything
  that was not social care services provided to
  meet eligible assessed needs.

41
What can s2 be used for, then?

• The provisions of section 2 LGA, known as the
  well-being provisions, can be used to make
  payments to enable authorities to provide
  services or enable service users to access
  services that do not conform to the traditional
  model for the provision of social care services.
• It can I think be used to provide social care
  type services to people who would not be
  eligible for them, in the sense of Fair Access
  to Care Services thresholds.
• And it can be used for funding things that are
  nothing to do with social care, so long as they
  are to do with well-being.
• Crucially, if an LA is going to use this power,
  it needs to have a well-being policy and stick to
  it. It cannot simply be used in an ad hoc way,
  whenever anyone needs some money.
• So it is, an additional funding stream for other
  things. (ie If you happen to have any spare
  money.)

42
The limits to the use of s2

• If it is used to provide community care services
  or funding to meet eligible assessed needs, after
  a statutory assessment of a persons situation, I
  think its clear that it cannot be used to get
  around any of the restrictions, limitations or
  prohibitions in the existing legal framework,
  precisely because of what s3 says.
• Examples would be the requirement for ordinary
  residence, under s2 of the CSDPA, for instance,
  to justify the purchase of personal care
• Or the rule against LAs placing someone who needs
  a package of care together with accommodation, in
  unregistered accommodation.
• Or the rule that we do not give money to the
  client directly for community care services,
  outside of the Direct Payments Act (and hence s2
  could not be used to give someone the money to
  spend on long-term residential care and we could
  not give less than we think they are going to
  need to secure the service.)
• Or the rule that when we contract with an
  individual for care under s30 NAA, they must be
  someone doing it as trade or profession.
• Or the rule that when we in the LA, contract with
  a provider, then they must be seen to act, in
  legal terms, on our account, as our agent.
• Or the rule that when we charge for social
  services, we do it according to Fairer Charging,
  and not without regard to that guidance.

43
Unanswered questions, as yet

• If it is used to give people access to things
  that they would be eligible for, but we give them
  the money before we even get round to assessing
  them, so that community care duties are not
  triggered at all (and so we cant give a person a
  formal Direct Payment, because thats derived
  from a care plan after assessment), can it then
  be used to get round restrictions in that
  community care framework, or the wider local
  authority framework?
• I think not, personally, even if we could figure
  out why wed even want to. Examples
• giving a person the money to buy registered nurse
  nursing tasks
• topping up housing benefit so that the person has
  enough to pay the rent, despite having been
  landed by us with a tenancy of non-excepted
  accommodation (Commissioner Turnbulls decision)
  
• giving a person less money than we know they
  need, instead of insisting that our only offer
  needs to be a residential care setting. (ie cost
  capping the funding for home care to the
  equivalent residential care price, even when we
  know the person needs much more care).

44
Does use of s2 even help us get round the
registration problem?

• If it is used to provide money for traditional
  personal care services, (whether done prior to an
  assessment of need, or after one), the
  registration problem still arises where the money
  is given to someone to arrange care for an
  incapacitated person.
• Why? because even if youre an individual who
  is being given this financial assistance, for
  someone elses care, the excepted undertaking
  rules dont let you out, even if youre doing
  this via any kind of arrangement with an
  organisation (the LA) (other than in Wales). And
  this would be the LAs money youd be doing it
  with, after all.
• Even if you say its the new kind of direct
  payment, for the person, despite their lack of
  capacity, a non-surrogate third party hasnt got
  any legal rights over the money, and can only
  pledge the persons credit.
• Existing TUPE and employment cases tend to
  suggest that in this situation the real client or
  employer can turn out to be the local authority,
  not the service user.
• In my view, the only way we avoid the
  registration problem is to use proper surrogates
  (deputies and attorneys) for incapacitated
  peoples Direct Payments. And even thats a bit
  dodgy.

45
Other uses of s2 - Local Authority contracts and
finance staff acting as purchasing and paying
AGENTS for the citizen

• The client takes the direct payment in a formal
  sense, but makes the LA their agent for buying
  services, in which case the services are
  privately purchased services, and not community
  care services, albeit that the contractor and
  negotiator would be the LAs staff.
• The possibilities of this route are not mentioned
  in the CSIP toolkit (or are merely hinted at).
• Capacitated people can make the decision to have
  an agent, and LAs have legal power to be
  anyones agent, but that doesnt help for whats
  going to happen to incapacitated people

46
Pledging the persons credit?

• For difficult situations where none of the above
  apply pledging the credit of the user, may
  well work (and I want the other kind of credit
  for this idea!)
• What does this involve? An incapacitated persons
  relative or carer makes a best interests
  decision about what they think the person needs
  in the way of care, and promises a provider that
  they will get paid.
• Then the provider could get the money back from
  the authority, on the say-so of the promising
  relative or carer.
• This would work if the authority was corporate
  appointee for the person, or simply the holder of
  their IB.

47
Pledging the credit.

• This utilises the flexibilities in terms of the
  relative doing the organising, and avoids a
  formal contract for anything between anyone -
  which probably avoids a finding that registrable
  arrangements have been made, but leaves all the
  parties without any contract at all.
• It is not necessarily a direct payment and
  neither is it the council doing what it
  traditionally does, which is to contract for
  services.
• The liability issues would be interesting to
  explore thoughand it is a bit surreal that it
  would not have any contractual underpinning at
  all. How very modern not!!

48
Liability implications for organisations
considering becoming agents or brokers

• All true agents, acting for other people, owe
  duties they are called fiduciary duties, which
  is a word connoting the utmost good faith,
  loyalty, absence of a conflict of interest, the
  agent not benefitting himself, secretly, etc.
• Bad agents can be sued by disgruntled clients,
  just as any other professional service provider
  can be sued for inadequate work if it has
  caused physical harm or financial loss, or is a
  breach of the contract between the two.

49
Liability to the client for those acting as
brokers

• Breach of Contract (doing something not
  authorised at all, or doing something authorised
  but badly, so that a loss is suffered)
• Negligence liability for recommending a provider
  who was objectively able to be seen at the time
  as not right for the needs, or the clients
  situation, but is now itself not worth suing, or
  not insured..
• Negligence liability for inadequate advice on
  rights, insurance cover and/or health and safety
  or on the liability implications of the clients
  owing a health and safety liability to their own
  worker.
• Concerns about independence and corruption, if
  one or two providers are consistently favoured.

50
Shop for Support an example of agency and
pledging the credit

• A website offers adverts for all sorts of
  community based local services.
• The client or carer goes online and chooses a
  service.
• The provider provides the service ,or the
  opportunity or the seat, or the subscription etc.
  
• The client or carer tells the LA that theyve had
  the service.
• The LA pays the provider, and deducts the amount
  from the persons individual budget.
• Who is the contract between?
• IF the client is a direct payment recipient,
  him/her and the provider, with the authority
  simply acting as payment agent, with duties to
  the client in contract, notionally.
• If the client is not a direct payment recipient
  however, the authority is the contractor and is
  liable to the provider for payment, even if the
  client doesnt use the service.
• Would this be good enough for your peace of mind,
  if you were the provider?

51
What do the Powers That Besay about monitoring?

• CIPFAs update for IBs, links monitoring of the
  spend, with monitoring of the outcomes which is
  sensible, and open to sensible contraction and
  expansion, according to perceived risks.
• The Audit Commission says that once the money has
  been lawfully spent and proper processes have
  been put in, the external auditor will have no
  role to play, regarding the way the client spends
  the money!
• Can these two positions be reconciled?

52
Reconciling the positions

• I think it all depends on what LAs and the Audit
  Commission regard as the law on what a Direct
  Payment can be spent on, in the first place. That
  is, if LAs set up DPs lawfully, all the AC is
  saying is that the external auditors dont have
  to look any further.
• These statements very conveniently beg the
  question of what can a DP be spent on - lawfully.
  So there IS an issue that needs to be resolved
  urgently, in public.
• The current and future DP regulations implicitly
  require the DP to be spent on the type and extent
  of services which were in the care plan as a
  result of the assessment and which gave rise to
  the calculation of the level of the payment in
  the first place.

53
Monitoring 3 reasons why the LA needs to have
this set up, as part of the new structure

• Monitoring how the money is being spent is
  relevant to success of the care plan,
  safeguarding and financial audit
• Monitoring outcomes is essential for decisions
  to pull direct payments in safeguarding cases.
• Monitoring changes in needs is essential if the
  LA is ever going to be able to cut an
  individuals RAS on the basis of a change of need
  in the future (and its required under guidance)
• Monitoring brokerage (if the LA contracts it out,
  ever) is essential to ensure value for money
• Monitoring providers with whom the LA still
  contracts is essential because of the LAs
  non-delegable duty to meet need, and not be
  negligent.

54
Monitoring of Providers, including Brokers

• A few years ago the Local Government ombudsman
  found Blackpool City Council guilty of
  maladministration when an amputee died when the
  care worker, failed to turn up. Why? Because it
  knew that the contractor was generating a higher
  proportion of complaints than any other, but did
  nothing.
• The LGO said the least an authority should do is
  to risk-assess who were the most vulnerable
  clients, in light of the contractual defaults,
  and get them off that providers books.
• Failure to monitor could lead to legal liability
  in negligence for failing to take reasonable
  steps to prevent reasonably foreseeable harm.

55
Monitoring of Direct Payments

• There are no statutory rules or regulations about
  the monitoring of direct payments.
• CIPFA creates guidance which tends to be what is
  used by LAs.
• This guidance has previously recommended Direct
  Payment Agreements for capacitated people, of
  course.
• This is all being reviewed, in light of the
  agenda and the extension of DPs to incapacitated
  people
• Much is said about the Light Touch approach
  which will now be the system for Personal
  Budgets.

56
Liability issues for the local authority

• Public law breach of human rights, eg allowing
  a persons helper to deprive the person of their
  liberty in the community
• Public law breach of statutory duty acting
  ultra vires, procedural unfairness, fettering etc
• Criminal law wilful neglect, corporate
  manslaughter, registration offences
• Coroners law system failure accusations
• Civil law vicarious, and/or direct negligence
  liability
• Deemed employers liability
• Complaints to the Ombudsman the LGO for
  maladministration

57
Prevention or cures avoiding and minimising
liability risks

• You can avoid breaching human rights by
  positively documenting consideration of the
  Mental Capacity Act principles and Human Rights
  issues at your Risk Evaluation/Enablement panel
  the people doing the decision making at that
  stage, need to know about Best Interests, the
  Code of Practice, the meaning of incapacity, and
  for Human Rights, article 2, 3, 5, 6, 8, 9 and 14
  a days training on that would be a good idea.
• You can avoid acting ultra vires by ensuring that
  your scheme fits within the legal framework and
  decided case law legal advice is needed
• You can avoid criminal law charges by acting
  reasonably and keeping your actions under
  scrutiny, because you have to be VERY bad to
  justify prosecution.
• Registration offences can be avoided by asking
  CSCI whether they have any objections first to
  structures or deployment options not registering.
  Your director or lawyer can write those letters.

58
Avoiding or minimising risks

• You can avoid embarrassment in a Coroners Court
  by explaining why capacitated people cant be
  forced to do things by councils so death by a
  persons own capacitated hand is not system
  failure. You can minimise risk of negligent
  death of a client by taking care to consider
  exercising intervention powers and only not
  exercising them, with good evidenced based
  reasons.
• You cannot avoid vicarious liability for
  employees negligence, unless they act completely
  outside their sphere, or criminally. But
  supervision should stop this.
• You can minimise the risk of being found directly
  negligently liable for injury to clients by
  rigorous and frequent monitoring and documenting
  the outcomes, and by understanding how
  safeguarding adults fits around and underneath
  the whole of Personalisation

59
Avoiding or minimising liability risks

• You can minimise the possibility of deemed
  employers liability for peoples PAs by
  explaining in clear terms to anyone with a DP
  that they or their Representative will be the
  employer in law, and what that involves. If you
  offer training, make it clear that it is free
  (you cannot sell it to members of the public). It
  might be marginally safer to ensure that
  organisations you direct people to for payroll or
  other employment related help are only grant
  funded by the council, not acting under contract
  to you.
• You ought to be able to minimise risk regarding
  the ombudsman by having a good reason for doing
  things and having a process which is robust
  maladministration complaints are basically about
  cock-ups, not illegality.

60
Safeguarding Issues here are some risky uses of
IBs we have to think of how to avoid these
things or minimise the risk

• The person whose direct payments money has been
  spent improperly by their helper
• The person whose direct payments suddenly make
  them the most popular person on a Friday night
  down at the pub
• The person whose accommodation provider eg,
  parent, etc, wont let the care workers in
• The person who wont take advice about liability
  for his or her staff and who therefore skimps on
  training, putting them and him/herself at risk
• The person whose chosen care workers are not good
  enough to manage risks safely and who dont
  understand that a request or an instruction, from
  a person who is not fully compos mentis, ought
  not always to be followed
• The person whose own family carers are themselves
  incapacitated
• The person whose carers behave objectionably,
  making it impossible for the person to get care
  workers to take the job on.

61
The structure for dealing with these risks,
within the context of personalisation

• At the assessment of need stage, a professional
  may disagree with a client or carers view of
  risk
• At the care planning stage, a professional may
  disagree with the client or carers view of what
  will meet need
• At the stage of allocating the RAS, a
  professional may disagree with the indicative
  guidelines in an individual situation based on
  what they know from experience of this or other
  clients cases
• Vetting a potential representative will have to
  be done in a similar way to safeguarding the
  client will be incapacitated, no IMCA may be
  triggered because we are talking about home care
  and direct payments, not a care home placement,
  but you still need to allow a person to disabuse
  you of a bad first impression, and that requires
  a process of some sort, and documenting of reasons

62
The structure for dealing with these risks,
within the context of personalisation

• At the stage of signing off the care plan, and
  deciding on the deployment model direct payment
  or indirect payment or traditional commissioning
  the LA may impose conditions on the client, the
  representative, the surrogate, the provider or
  the organisation brokering the care, because the
  default model is always there in the legal
  framework the LA must decide what it is
  prepared to do, and the direct payments
  framework, the framework of an organisation
  acting as the authoritys agent, and the
  traditional contract basis of ordinary
  commissioning, all provide for conditionality at
  the behest of the LA. The documentation is
  critically important for safeguarding purposes.
• Imposing sensible conditions on direct payment
  holders will be uncomfortable but essential.
• At the stage of reviewing the care plan, the
  model can be changed if outcomes are not being
  met, or the way in which they are being met is
  regarded as unlawful or likely to lead to harm to
  someone client or worker.
• Safeguarding Adults processes run alongside and
  underneath this system, regardless of whether
  someone is getting a care plan or not
  Safeguarding Adults is merely assertive care
  planning, once an allegation of unmanaged risk of
  abuse is made, with the Mental Capacity Act
  remedies via the Public Guardian and Court of
  Protection there, as a fall back.

63
What lawful interventions are open to local
authorities?

• Making a police referral
• Advising and assisting people, who are not yet
  incapacitated, with regard to accessing legal
  advice helping people to help themselves,
  effectively.
• Acting as corporate appointee for the management
  of incapacitated peoples benefits (when no-one
  else is suitable)
• Introducing people to Private Client departments
  in solicitors firms so that those with assets
  can get proper surrogate management (albeit at a
  cost)
• Contracting with Supporting People Providers for
  supporting clients to manage their own money, as
  a service that helps to maintain a tenancy.

64
What lawful interventions are open to local
authorities?

• Actually volunteering as someones litigation
  friend to initiate legal proceedings to undo
  dodgy transactions, or get injunctions against
  those who are bothering someone, or evicting
  those who have moved in on someone with a view to
  financial gain.
• Is this anyone elses job? Yes, sometimes its
  the Official Solicitors.
• Why might an LA do it instead? Where the person
  or transaction or problem is affecting or
  obstructing the delivery of social services and
  not otherwise, in my view.
• Using the Mental Capacity Act 2005 holding
  people to account
• Applications to search the register, to object to
  registration and to cancel LPAs etc
• Applying to become a Deputy

65
Finally.

• Thanks very much for listening and contributing
• Consultancy about the legal framework from my
  business costs 150 an hour VAT!
• Thats cheaper than a judicial review or a
  negligence action.