Direct Payments for Disabled Children

1. Introduction

This chapter will be read in conjunction with Direct Payments Guidance which has been written for both parent carers' and staff use. It is placed on Hertfordshire.gov.uk in a Direct Payments section of the Social Care section of the Local Offer. This includes:

Introduction - the legislative context;
What are Direct Payments?
Who is eligible for Direct Payments?
Transition into adulthood;
What Direct Payments can be used for;
What Direct Payments cannot be used for;
Flexibility in use;
Employing Relatives;
What is the process for setting up a Direct Payment?
Direct payment rates;
How often are direct payments made?
Disclosure and Barring Services (DBS) checks;
When might direct payments be suspended or stopped?
Pooling direct payments;
Quality Assurance;
Care planning, reviewing and monitoring direct payments;
What support is available?
Differing family arrangements;
Consent and Capacity.

This chapter is specifically for staff undertaking assessment, administering and processing direct payments, and supporting families with direct payments.

2. Assessing Eligibility for Direct Payments

Please read chapter 3 of the Direct Payments Guidance. Further guidance for workers is provided below.

It is essential to ascertain whether the parent is permitted to receive direct payments i.e. that they have PR and are not on the excluded list – see Appendix 1 of the Direct Payments Guidance.

2.1 Willing and able assessment

Please read chapter 9 of the Direct Payments Guidance for information about the context of the assessment, including the need to explore all options with the family, and the steps following the assessment including:

Decision making panel;
Financial arrangements;
Monitoring requirements.

A checklist for 0-25 Together Service workers (see MS Teams Collaboration Area Documents: Children's Services - Personal Budgets) is available to support the assessment of whether the parent carer is willing and able to manage direct payments. The assessment ensures the parent understands fully what is involved and gives their informed consent, it ensures the 0-25 Together Service is satisfied the parent is able and willing to manage the direct payments and the service provision arrangements secured through the funds.

Most parents of disabled children can give a clear indication of their consent to receiving a direct payment. They may require help to manage aspects of payroll services, budgeting; submitting quarterly bank statements, employer responsibilities and recruitment, but the fact that they require assistance should not preclude the making of a direct payment.

The presumption should be that a person will (with assistance if necessary) be able to manage direct payments unless there are compelling reasons to conclude that they are not.

These compelling reasons might include evidence that over a period of time the person has not been able to comply with the requirements of their agreement with the authority. If direct payments have been started, and it then appears that the recipient is not able to manage the payments (with assistance) the direct payments must cease.

Please click on the following links for further guidance where required:

It is essential that the 0-25 Together worker discusses with the parent the process involved in setting up the direct payment, what is expected from the parent (as the Direct Payment recipient), what support is available from others, and which teams the parent will liaise with. The willing and able assessment will go into more detail, however the overview would include:

Obtaining panel agreement for a direct payment package;
Receiving a direct payment pack including an Agreement that needs to be signed and returned to the CYP SEND Brokerage Team;
Setting up a bank account for direct payments and sending the Bank Details Form to the CYP SEND Brokerage Team;
Recruiting PAs/carers – support from Direct Payment Support Service if needed;
Pre-employment checks including DBS and References – support as above;
Taking out Employers Liability Insurance (see below for more info);
If arranging provision through service providers the expectation that parents will undertake some basic checks, similar to what you would do if using a childminder – guidance is available – see below;
Payments will start once everything is in place i.e. checks completed and documents returned;
Payments are made 4 weekly in advance by the Brokerage Finance team;
Submitting quarterly returns to the Brokerage Finance team;
Ensuring the provision /support arranged is focused on achieving the outcomes identified in the child's plan;
Ensuring PAs/carers are suitably trained – training in undertaking health interventions is available from the Children's Community Nursing teams and this is accessed via the CYP SEND Brokerage team; PALMS if involved with the family may be able to support with managing challenging behaviour training; and the Brokerage team can signpost to other sources of training if required;
Managing any issues that arise with the PA / carer or service provider;
Recruiting any new PAs in line with the council's expectations to carry out pre-employment checks including DBS checks and references;
Participating in CiN reviews and including contribution from the PA / carer / provider in person or via a report.

The 0-25 Together Service worker's assessment of ability to manage direct payments will include:

The parent/carer or young person's understanding of their vulnerability and ability to put in place measures to ensure they are safeguarded, including having knowledge of the signs and symptoms of harm, abuse and neglect;
Ability to lawfully and safely recruit personal assistants including understanding:
- The importance of DBS checks - see chapter 12 of the Direct Payments Guidance for more information below for examples of different offences and how these would be risk assessed, clarifying that there are offences and situations that would not automatically restrict a person to work as a direct payment carer;
- The use of references;
- To clarify understanding of suitable carers and the role of the Council in responding to concerns about a carers suitability (see chapter 12 of the Direct Payments Guidance;
- The additional requirements involved when employing Self-Employed PAs - the CYP SEND Brokerage Team will provide further information about this;
- Seeking advice on lawful employment from the Direct Payment Support Scheme, including checking right to work in the UK, ensuring employees' rights are upheld such as pension, using payroll services and ensuring tax and national insurance contributions.
Ability to discuss with prospective carers any issues of risk arising from the nature of the care to be provided or from the carer's own background including any previous offences which may impact on their suitability and implement measures to mitigate against risks;
Ability to discuss boundaries, safe care procedures, discipline, use of public toilets and changing facilities especially where the young person requires independence and/or where the carer is of a different sex, road safety and other appropriate risk management strategies;
Understanding when Ofsted registration applies to care (see chapter 5 of the Direct Payments Guidance);
Discussion about the importance of reporting to the caseworker any concerns or allegations arising about the employed carers or service providers secured through direct payments, and explanation of the role of the LADO and 0-25 Service role in referring any relevant allegations to the LADO. Responsibility to refer (through the 0-25 worker) to the DBS any relevant concerns that may arise in the course of employment and the support available from the council through the HR Safe Staffing Team in doing this;
Discussion as to whether care may take place in the prospective carer's home now or in future, and an understanding of the potential risks of contact with other people living in that home, how to address this within the DBS check by ticking the service will be home based - see chapter 12 of the Direct Payments Guidance for more information;
Ability to ensure the personal assistant(s) are appropriately trained including in any moving and handling needs, medical interventions, de-escalation of challenging behaviour, positive behaviour support strategies and any physical interventions as a last resort which may be required;
Ability to monitor and supervise carers;
Ability to set up a carer's employment and cease employment if necessary;
Ability to engage a service provider of an appropriate standard and ensuring the wellbeing of the child / young person is safeguarded, use of the Quality Checklist;
Ability to fulfil employers responsibilities including awareness of legal responsibilities (please refer to Employing a PA Factsheet) concerning employment, safeguarding, data protection and Employer's Liability Insurance;
Ability to manage a bank account;
Ability to provide quarterly bank statements;
If the parent/carer is proposing to pool direct payments (see chapter 14 of the Direct Payments Guidance) with others, an assessment of the suitability of such arrangements for this child and consideration of any limitations such as:
- The number of other children / young people to pool with;
  and/or
- The number of hours to be pooled and any retained for individual use.
The 0-25 Together Service worker will also need to ensure the pooled care arrangements proposed will meet the individual's identified needs, discussion of safeguarding issues, risk assessment and the practical arrangements to be considered;
Whether a Nominee or Court Appointed Deputy is proposed to hold the direct payments.

The support offered by the Direct Payment Support Scheme should be discussed. If the direct payment recipient does not intend to use this support they must inform the 0-25 Together Service worker. The 0-25 Together Service worker should advise the CYP SEND Brokerage Team of this so that the Skills for Care booklet on Employing Personal Assistants can be referenced in the letter that will be sent to the direct payment recipient.

2.2 Recording the outcome of the assessment

The outcome of this assessment and a summary of the issues discussed will be noted on the child's LCS record by the worker and should note how the direct payments are to be used to meet the identified needs and any flexible use.

The use of direct payments will always be linked to the plan agreed with the family, and it helps to ensure the intended use of DPs are clear by outlining what the specific outcomes are for the DP package.

The assessing worker must also record whether the child's welfare will be safeguarded and promoted by the means of a direct payment.

Any decision to refuse direct payments must be made in discussion with the team manager.

3. Transition

Please read chapter 4 of the Direct Payments Guidance on Hertfordshire.gov.uk to understand the options for direct payment recipients as they approach transition.

Ordinarily, planning for social care transition starts on or after a young person 16th Birthday in accordance with the Transition Pathway for Disabled Children in order that their transition to adulthood is recognised and that they receive support in their own right as opposed to through a nominated parent or carer. Any delays in Transition after the age of 18 need to be notified to the relevant Service Manager and Head of Service.

4. The Use of Direct Payments

Chapters 5 to 8 of the Direct Payments Guidance provide details of how direct payments can and cannot be used.

4.1 Ofsted regulations

Please note that Ofsted regulations may apply to some direct payment arrangements, especially for children under eight years of age. Full details and exemptions are given in chapter 5 of the Direct Payments Guidance.

4.2 Employing relatives

Regarding the employment of relatives, as explained in chapter 8 of the Direct Payments Guidance, the allocated worker from the 0-25 Together Service should seek advice from the team manager before making a payment in these circumstances.

The Council regards relatives as part of the child and family's support network, whether living in the same household, or elsewhere, and as such would not usually expect to receive payment for providing support as a family member. In exceptional circumstances this may be agreed and will need to be authorised by the relevant Team Manager before payments can be made. The Team Manager's decision must be noted in the child's LCS record.

Family members are subject to the same pre-employment checks as other carers, including DBS and references. In some circumstances the Team Manager may authorise the requirement for 2 references as not applying to a family member.

4.3 Workplace pensions

Direct Payment recipients are now (from 2015) required to provide access to workplace pension schemes for employed personal assistants. This applies when certain criteria are met and further advice should be sought from the Direct Payment Support Scheme. Please refer to Sections 5 and 10 of the Direct Payments Guidance which explains that where this applies, the Council will provide additional funds to cover the cost.

5. Disclosure and Barring Service Checks and Risk Assessments

Please read chapter 12 of the Direct Payments Guidance.

5.1 Direct payment recipient declines DBS check

Where a direct payment recipient has declined to obtain a DBS check from the prospective carer, the Declined DBS Risk Assessment Form (see MS Teams Collaboration Area Documents: Children's Services Personal Budgets) must be used. The 0-25 Together Service worker and a member of the CYP SEND Brokerage Team will carry out the risk assessment interview, with the prospective employee and the Direct Payment recipient (usually the child's parent).

The completed risk assessment form will be sent to the HR Safe Staffing Team and then to the Operational Director for approval. The direct payment recipient will be required to sign Declaration (2) before direct payments can start. Declaration forms are provided by the CYP SEND Brokerage Team.

5.2 Commencing care prior to DBS check

Where the need for support is immediate and a direct payment recipient wants a carer to start prior to receiving the outcome of the DBS check, the direct payment recipient will be required to sign Declaration (1) if all the requirements are met, these are:

These should only be used in extreme circumstances where the employment cannot wait for the DBS check to be completed.

They can only be used when:

The DBS check has been applied for prior to starting;
The self-declaration has been completed and shows no adverse information;
All other pre-employment checks are completed including references, self-declaration form;
The team manager is in agreement and confirms no adverse information is held about the applicant;
The applicant will be supervised at all times;
The risk assessment must be reviewed weekly until the DBS check has been returned and evidenced.

Declaration forms are provided by the CYP SEND Brokerage Team.

5.3 Carer is unwilling to provide evidence of DBS check

In cases where the direct payment recipient insists upon employing a carer who is unwilling to provide evidence of the DBS check outcome, the Council will consider the risks and any concerns and will either refuse the direct payment or require Declaration (2) to be signed.

5.4 DBS check reveals a trace

Where the DBS check reveals a trace the HR Safe Staffing Team will advise as to whether a risk assessment is required. A DBS Trace Risk Assessment will be undertaken by the 0-25 Together worker and CYP SEND Brokerage with the proposed carer and the Direct Payment recipient (usually the child's parent) (see MS Teams Collaboration Area Documents: Children's Services Personal Budgets).

The completed risk assessment form will be sent to the HR Safe Staffing Team and then to the Operational Director for approval. The proposed carer will not be able to commence employment until the outcome is positively confirmed.

5.5 Referrals to the DBS

Where direct payment recipients wish to refer to the DBS any relevant concerns that may arise in the course of employment, they are advised to contact their 0-25 Together caseworker for further support. The caseworker should liaise with Herts HR Safe Staffing Team to provide support.

6. Suspending or Stopping Direct Payments

Please refer to chapter 13 of the Direct Payments Guidance for a list of circumstances that will necessitate consideration of suspending or stopping direct payments. The 0-25 Together Service worker must contact the family and agree the next steps. Any explanation from the recipient for the circumstances should be considered and a review must take place before any action is taken. Please consult with the relevant specialist advisor such as from the Fraud Team or Legal department before taking any further action.

7. Pooled Direct Payments

Please refer to chapter 14 of the Direct Payments Guidance for full information about 0-25 Together Service and Brokerage and Short Breaks Review Team roles.

To set up a pooled direct payment arrangement, a meeting of all interested parties needs to be arranged. One of the families can arrange this or the Brokerage and Short Breaks Review Team can do this.

The Brokerage service provision officer attending the meeting will use a checklist to facilitate the discussion and will take the Pooled Direct Payment Agreement Template to the meeting to capture the decisions made.

The worker from the 0-25 Together Service should seek advice from the team manager if s/he considers any of these elements to be unmet:

The arrangements are appropriate to meet the identified needs;
The arrangements are adequate to safeguard children involved; and
Are an appropriate use of public funds.

Upon receipt of confirmation from the 0-25 Together Service workers concerned, the CYP SEND Brokerage Team will ensure that the following have been received:

The direct payment pooled direct payment bank account form;
Where applicable:
- Confirmation of prospective carers DBS checks;
- Any risk assessments required;
- The Declaration of Criminal Records Form for each prospective carer.

The CYP SEND Brokerage Team will then sign the Pooled Direct Payment Agreement on behalf of the Council and return this to each direct payment recipient concerned, as confirmation that the pooled arrangement can proceed.

8. Child in Need Reviews

Please refer to chapter 16 of the Direct Payments Guidance. In preparation for these meetings the 0-25 Together worker should:

Access bank statement returns for the direct payment account via Livelink;
Check for payroll direct debits / standing orders and annual employers liability insurance (approx. £100);
Request receipts and invoices from the DP recipient for any cash or cheque payments;
Request a report from the DP carers regarding how the support is working and the outcomes being achieved;
Review casenotes in respect to change of DP carer(s) and DBS checks etc and any difficulties the parent has encountered with the DP package;
Review the Feedback forms in LCS (Brokerage will use these when carrying out a 7 week follow up call once the support has started);
It is good practice to seek the views of the child/young person prior to or at the review.

0-25 Together workers can contact the CYP SEND Brokerage Team regarding any missing quarterly bank statement returns.

In review meetings, 0 - 25 Together workers should ask parents relevant questions about the direct payments to ensure the child continues to be safeguarded and to review the effectiveness of the package in meeting the assessed needs and achieving the outcomes specified in the plan. Areas for discussion include:

The child / young person's feedback and experience of the support provided;
As they approach transition to adulthood whether they are willing and able to be more actively involved in managing the direct payment themselves (possible from age 16);
Who the current DP carers are (check they are DBS checked etc as recorded in LCS casenotes), any training needs for carers, how the support is working, summary of the carers' reports;
If any services providers are being used, how they are paid and any quality assurance issues being experienced, summary of the provider's report;
Review of bank statements and highlighting direct debits to payroll company for carers' pay, annual employer's liability insurance payments of approx. £100, receipts and invoices for any cash or cheque payments;
If there is a large balance on the account to understand how this is arising and appropriate next steps.

9. Differing Family Arrangements

Disabled children accommodated under Section 20 of the Children Act 1989 or subject to an interim or final Care Order

When a child is looked after, his/her parents retain full parental responsibility. The parents are therefore not legally prohibited from receiving the direct payment, however, practically; this may not be sustainable if the child is placed in long term foster care.

A foster carer is not legally permitted to receive a direct payment on behalf of a disabled child.

It may be appropriate to give a young person who is aged 16 or 17 a direct payment who is in long-term foster care if s/he is able to consent to a direct payment and can manage the direct payment with assistance.

When a child is the subject of an Interim or a final Care Order, the Local Authority shares parental responsibility with the parents.

In the event that a child is looked after or subject to an interim or final Care Order, the allocated 0-25 Together Service worker should seek further advice from their manager/legal team if a direct payment is requested.

If a child becomes accommodated by the Local Authority a decision will be made by the Council as to whether direct payments should cease. In reaching a decision the allocated 0-25 Together Service worker in conjunction with the team manager and/or the legal team and will consider whether the child's parent is retaining parental responsibility, or sharing parental responsibility with the Local Authority, and whether the practical circumstances are in favour of direct payments continuing, or whether a 16 or 17 year old is capable and willing to receive direct payments in their own right. There may be other factors for individual arrangements to be considered.

Where the Disabled Child has moved out of the County

In the event that a disabled child moves out of the county, the 0-25 Together Service worker should seek further advice from their manager/legal team.

Suitable Person such as a Deputy managing the Direct Payment

Currently, legislation does not permit direct payment recipients (i.e. an individual with parental responsibility for a disabled child or a 16/17 year old disabled child) to appoint a Suitable Person to manage the direct payment on their behalf.

In certain circumstances a disabled child has an appointed Deputy to manage his/her property and affairs. The Deputy's authority for managing the child's property and affairs stems directly from a Court Order, which can include management of his/her direct payment.

Where there is a Deputy appointed and the direct payment recipient or their parent has requested that the Deputy manages the direct payment, the request should be made in writing to the 0-25 Together Service worker. 0-25 Together Service workers should obtain a copy of the Deputyship Order and if there is any doubt about the validity of the Order, they should seek to undertake a search of the registers of the Office of Public Guardian by completing form OPG 100. The search results will reveal whether the Court of Protection has appointed a Deputy and if so, the details of the individual.

The 0-25 Together Service worker will discuss the proposed arrangement with the family to identify any practical and safeguarding issues. The 0-25 Together Service worker will discuss the proposed arrangement with the Team Manager for a decision.

The Council will expect the Deputy to ensure:

The child's welfare will be safeguarded and promoted by the means of a direct payment as set out in this policy;
The direct payments are used in accordance with the care plan to meet the identified needs;
The direct payments are used in line with this policy and the law;
The direct payments are set up as required by this policy including setting up a separate bank account;
Compliance with the Council's monitoring requirements.

The Direct Payment Agreement will need to reflect this arrangement. The CYP SEND Brokerage Team will liaise with the Legal Services Department to ensure an appropriate Direct Payment Agreement is in place.

It will be important to ensure appropriate insurance is in place as part of these arrangements.

In the event that the allocated 0-25 Together Service worker is concerned about the actions of the Deputy, they should seek further advice from their manager/legal team.

Parents may request a Nominee manages the direct payment on their behalf. Please see chapter 20 of the Direct Payments Guidance for more information.

Appendix 1: Links

Disabled Children - Willing and Able Assessment:

Direct Payments 0-25 Together Service Checklist for Assessment - to follow

Toolkit for Direct Payment Recipients:

Employing a PA Factsheet
Quality Checklist
Professional Reference Template
Volunteer Agreement

Websites:

'Support and aspiration: a new approach to special educational needs and disability' can be found on the Department for Education website.

Leonard Cheshire Disability

Employing Personal Assistants

Department for Education