PART 1SOCIAL CARE
CHAPTER 2MISCELLANEOUS AMENDMENTS IN RELATION TO SOCIAL CARE SERVICES, SOCIAL CARE WORKERS AND LOCAL AUTHORITY SOCIAL CARE FUNCTIONS
Local authority social services functions
20Direct payments in social care
section 20 1 (1)Subsection (2) amends the 2014 Act to supplement the ways in which a local authority can make payments directly to a person, towards the cost of meeting a person’s needs for care and support under sections 35 to 40, 42 and 45 of that Act, or in respect of after-care services under section 117 of the Mental Health Act 1983 (c. 20), by providing that such payments can be made to a person nominated by the person to whom the payment could otherwise have been made.
section 20 2 (2)The 2014 Act is amended as follows—
section 20 2 a (a)after the cross heading that precedes section 50 insert—
“49ADirect payments
(1)Regulations may require or allow a local authority to make payments to a person towards the cost of meeting the needs of—
(a)an adult (“A”), under section 35 or 36;
(b)a child (“C”), under section 37, 38 or 39;
(c)a carer (“R”), under section 40, 42 or 45.
(2)But regulations under subsection (1) may not require or allow such payments to be made unless—
(a)where the payments are to be made to meet an adult’s needs under section 35 or 36, condition 1, 2 or 3 in section 50 is met;
(b)where the payments are to be made to meet a child’s needs under section 37, 38 or 39, condition 1 or 2 in section 51 is met;
(c)where the payments are to be made to meet a carer’s needs under section 40, 42 or 45, condition 1 or 2 in section 52 is met.
(3)A payment under this section is referred to in this Act as a “direct payment.”;
section 20 2 b (b)for sections 50 to 52 substitute—
“50Direct payments: conditions for payment to meet an adult’s needs
(1)The conditions referred to in section 49A(2)(a) in relation to making direct payments towards the cost of meeting the needs of an adult (“A”) under section 35 or 36 are as follows.
(2)Condition 1 is that—
(a)the payments are to be made to A,
(b)the local authority believes that A has capacity to consent to the making of the payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of meeting A’s needs, and
(ii)A is capable of managing the payments (either by themselves or with the support that is available to them), and
(d)A has consented to the making of the payments.
(3)Condition 2 is that—
(a)the payments are to be made to a person other than A (“B”),
(b)the local authority believes that A does not have capacity to consent to the making of the payments,
(c)B is a suitable person,
(d)the local authority is satisfied that—
(i)making the payments is an appropriate way of meeting A’s needs,
(ii)B is capable of managing the payments (either by themselves or with the support that is available to them), and
(iii)B will act in A’s best interests in managing the payments, and
(e)the necessary consent has been obtained to make the payments to B.
(4)Condition 3 is that—
(a)the payments are to be made to a person who is nominated by A (“N”),
(b)the local authority believes that A has capacity to consent to the making of the payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of meeting A’s needs, and
(ii)N is capable of managing the payments (either by themselves or with the support that is available to them),
(d)A has consented to the making of the payments, and
(e)N has consented to receive the payments.
(5)For the purposes of subsection (3)(c), B is a “suitable person”—
(a)if B is authorised under the Mental Capacity Act 2005 (whether in general or specific terms) to make decisions about A’s needs for care and support,
(b)where B is not authorised as mentioned in paragraph (a), if a person who is so authorised agrees with the local authority that B is suitable to receive payments towards the cost of meeting A’s needs for care and support, or
(c)where B is not authorised as mentioned in paragraph (a) and there is no person who is so authorised, if the local authority considers that B is suitable to receive payments of that kind.
(6)For the purposes of subsection (3)(e), the “necessary consent” means—
(a)the consent of B, and
(b)where B is a suitable person by virtue of subsection (5)(b), the consent of a person authorised under the Mental Capacity Act 2005 (whether in general or specific terms) to make decisions about A’s needs for care and support.
51Direct payments: conditions for payment to meet a child’s needs
(1)The conditions referred to in section 49A(2)(b) in relation to making direct payments towards the cost of meeting the needs of a child (“C”) under section 37, 38 or 39 are as follows.
(2)Condition 1 is that—
(a)the payments are to be made to a person (“P”) who is—
(i)C, or
(ii)a person with parental responsibility for C,
(b)where P is—
(i)an adult or a child aged 16 or 17, the local authority believes that P has capacity to consent to the making of the payments;
(ii)a child aged under 16, the local authority is satisfied that P has sufficient understanding to make an informed decision about consenting to receive the payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of meeting C’s needs,
(ii)C’s well-being will be safeguarded and promoted by the making of the payments, and
(iii)P is capable of managing the payments (either by themselves or with the support that is available to them), and
(d)P has consented to the making of the payments.
(3)Condition 2 is that—
(a)the payments are to be made to a person who is nominated by P (“N”),
(b)where P is—
(i)an adult or a child aged 16 or 17, the local authority believes that P has capacity to consent to the making of the payments;
(ii)a child aged under 16, the local authority is satisfied that P has sufficient understanding to make an informed decision about consenting to the making of the payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of meeting C’s needs,
(ii)the well-being of C will be safeguarded and promoted by the making of the payments,
(iii)N will act in C’s best interests in managing the payments, and
(iv)N is capable of managing the payments (either by themselves or with the support that is available to them),
(d)P has consented to the making of the payments, and
(e)N has consented to receive the payments.
52Direct payments: conditions for payment to meet a carer’s needs
(1)The conditions referred to in section 49A(2)(c) in relation to making direct payments towards the cost of meeting the needs of a carer (“R”) under section 40, 42 or 45 are as follows.
(2)Condition 1 is that—
(a)the payments are to be made to R,
(b)where R is—
(i)an adult or a child aged 16 or 17, the local authority believes that R has capacity to consent to the making of the payments;
(ii)a child aged under 16, the local authority is satisfied that R has sufficient understanding to make an informed decision about consenting to receive the payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of meeting R’s needs, and
(ii)R is capable of managing the payments (either by themselves or with the support that is available to them), and
(d)R has consented to the making of the payments.
(3)Condition 2 is that—
(a)the payments are to be made to a person who is nominated by R (“N”),
(b)where R is—
(i)an adult or a child aged 16 or 17, the local authority believes that R has capacity to consent to the making of the payments;
(ii)a child aged under 16, the local authority is satisfied that R has sufficient understanding to make an informed decision about consenting to the making of the payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of meeting R’s needs,
(ii)where R is a child aged under 16, N will act in R’s best interests in managing the payments, and
(iii)N is capable of managing the payments (either by themselves or with the support that is available to them),
(d)R has consented to the making of the payments, and
(e)N has consented to receive the payments.”;
section 20 2 c (c)after section 53 insert—
“53ADirect payments: after-care under the Mental Health Act 1983
The ways in which a local authority may discharge its duty under section 117 of the Mental Health Act 1983 include by making direct payments, and for that purpose Schedule A1 has effect.”;
section 20 2 d (d)for Schedule A1 substitute—
(as introduced by section 53A)
“SCHEDULE A1DIRECT PAYMENTS: AFTER-CARE UNDER THE MENTAL HEALTH ACT 1983
General
1Regulations may require or allow a local authority to make payments in respect of a person to whom section 117 of the Mental Health Act 1983 (after-care) applies that are equivalent to the cost of providing or arranging for the provision of after-care services for the person under that section.
2But regulations under paragraph 1 may not require or allow such payments to be made unless—
(a)where the payment is made in respect of an adult, condition 1, 2 or 3 in paragraph 4 is met;
(b)where the payment is made in respect of a child, condition 1 or 2 in paragraph 5 is met.
3A payment under this Schedule is referred to in this Act as a “direct payment”.
Direct payments: after-care services for an adult
4(1)The conditions referred to in paragraph 2(a) in relation to making direct payments in respect of an adult (“A”) to whom section 117 of the Mental Health Act 1983 (after-care) applies that are equivalent to the cost of providing or arranging the provision of after-care services for A under that section are as follows.
(2)Condition 1 is that—
(a)the payments are to be made to A,
(b)the local authority believes that A has capacity to consent to the making of the payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of discharging its duty towards A under section 117 of the Mental Health Act 1983, and
(ii)A is capable of managing the payments (either by themselves or with the support that is available to them), and
(d)A has consented to the making of the payments.
(3)Condition 2 is that—
(a)the payments are to be made to a person other than A (“B”),
(b)the local authority believes that A does not have capacity to consent to the making of the payments,
(c)B is a suitable person,
(d)the local authority is satisfied that—
(i)making the payments is an appropriate way of discharging its duty towards A under section 117 of the Mental Health Act 1983,
(ii)B is capable of managing the payments (either by themselves or with the support that is available to them), and
(iii)B will act in A’s best interests in managing the payments, and
(e)the necessary consent has been obtained to make the payment to B.
(4)Condition 3 is that—
(a)the payments are to be made to a person who is nominated by A (“N”),
(b)the local authority believes that A has capacity to consent to the making of the payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of discharging its duty towards A under section 117 of the Mental Health Act 1983, and
(ii)N is capable of managing the payments (either by themselves or with the support that is available to them),
(d)A has consented to the making of the payments, and
(e)N has consented to receive the payments.
(5)For the purposes of sub-paragraph (3)(c), B is a “suitable person”—
(a)if B is authorised under the Mental Capacity Act 2005 (whether in general or specific terms) to make decisions about the provision to A of after-care services under section 117 of the Mental Health Act 1983,
(b)where B is not authorised as mentioned in paragraph (a), if a person who is so authorised agrees with the local authority that B is suitable to receive the payments, or
(c)where B is not authorised as mentioned in paragraph (a) and there is no person who is so authorised, if the local authority considers that B is suitable to receive payments of that kind.
(6)For the purposes of sub-paragraph (3)(e), the “necessary consent” means—
(a)the consent of B, and
(b)where B is a suitable person by virtue of sub-paragraph (5)(b), the consent of a person authorised under the Mental Capacity Act 2005 (whether in general or specific terms) to make decisions about the provision to A of after-care services under section 117 of the Mental Health Act 1983.
Direct payments: after-care services for a child
5(1)The conditions referred to in paragraph 2(b) in relation to making direct payments in respect of a child (“C”) to whom section 117 of the Mental Health Act 1983 (after-care) applies that are equivalent to the cost of providing or arranging the provision of after-care services for C under that section are as follows.
(2)Condition 1 is that—
(a)the payments are to be made to a person (“P”) who is—
(i)C, or
(ii)a person with parental responsibility for C,
(b)where P is—
(i)an adult or a child aged 16 or 17, the local authority believes that P has capacity to consent to the making of the payments;
(ii)a child aged under 16, the local authority is satisfied that P has sufficient understanding to make an informed decision about consenting to receive the payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of discharging its duty towards C under section 117 of the Mental Health Act 1983,
(ii)C’s well-being will be safeguarded and promoted by the making of the payments, and
(iii)P is capable of managing the payments (either by themselves or with the support that is available to them), and
(d)P has consented to the making of the payments.
(3)Condition 2 is that—
(a)the payments are to be made to a person who is nominated by P (“N”),
(b)where P is—
(i)an adult or a child aged 16 or 17, the local authority believes that P has capacity to consent to the making of payments;
(ii)a child aged under 16, the local authority is satisfied that P has sufficient understanding to make an informed decision about consenting to the making of payments,
(c)the local authority is satisfied that—
(i)making the payments is an appropriate way of discharging its duty towards C under section 117 of the Mental Health Act 1983,
(ii)the well-being of C will be safeguarded and promoted by the making of the payments,
(iii)N will act in C’s best interests in managing the payments, and
(iv)N is capable of managing the payments (either by themselves or with the support that is available to them),
(d)P has consented to the making of the payments, and
(e)N has consented to receive the payments.
Further provision for direct payments: after-care
6Regulations under this Schedule may also make provision (in particular) about the following—
(a)matters to which a local authority may or must have regard when making a decision of a specified type about direct payments;
(b)conditions that a local authority may or must attach, and conditions that it must not attach, in relation to direct payments;
(c)steps that a local authority may or must take before, or after, making a decision of a specified type about direct payments;
(d)support that a local authority must provide or arrange for persons to whom it makes direct payments;
(e)cases or circumstances in which a local authority may act as an agent on behalf of a person to whom direct payments are made;
(f)conditions subject to which, and the extent to which, a local authority’s duty under section 117 of the Mental Health Act 1983 (after-care) is discharged by the making of direct payments;
(g)cases or circumstances in which a local authority must not, or is allowed not to, make payments to a person or in relation to a person;
(h)cases or circumstances in which a person who no longer lacks, or who the local authority believes no longer lacks, capacity to consent to the making of direct payments must or may nonetheless be treated for the purposes of paragraphs 4 and 5 as lacking capacity to do so;
(i)cases or circumstances in which a local authority making direct payments may or must review the making of those payments;
(j)cases or circumstances in which a local authority making direct payments may or must—
(i)terminate the making of those payments;
(ii)require the repayment of the whole or part of a direct payment;
(k)the recovery of any amount due to a local authority in connection with the making of direct payments.
7Regulations under this Schedule must specify that direct payments to meet the cost of providing or arranging for the provision of after-care services under section 117 of the Mental Health Act 1983 (after-care) must be made at a rate that the local authority estimates to be equivalent to the reasonable cost of securing the provision of those services to meet those needs.
8A person to whom a local authority makes a direct payment may, subject to regulations made under this Schedule, use the payment to purchase after-care services from any person (including, among others, the authority that made the payment).”