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Direct payments for care & support

Is a Property and Financial Affairs deputy an ‘authorised person’ to receive direct payments for care and support.

By Gemma Shepherd – https://www.michelmores.com/

In the case of Calderdale MBC v AB (by his litigation friend, the Official Solicitor), Daniel Lumb (as property and financial affairs deputy for AB) and AnB (2021) Senior Judge Hilder provides some clarity on who is responsible for managing a person’s Direct Payments (‘DP’) if that person lacks capacity to manage it for themselves.

What are direct payments?
A DP in this context is the amount of money that the local council pay to meet the needs of a person. It is provided to enable them to purchase necessary services to help with their support needs and/or their care needs(as assessed by the local authority.

The Background
In AB’s case his brother-in-law, DB, was receiving his DP’s from the local authority for AB’s care and support needs. DB used this DP to fund a package of care provided by AB’s siblings.

Daniel Lumb of Stonegate Law was the professional deputy appointed as property and affairs deputy for AB by an order made on 9th August 2019 whose appointment was in standard terms.

Mr Lumb raised concerns as to the lawfulness of arrangements in respect of AB’s care, specifically who should receive AB’s DP’s under the Care Act and manage these on his behalf.

The issues
The query surrounded the meaning of the relevant sections of the Care Act 2014 (ss.32 – 33 inclusive) and whether these meant that a financial deputy amounted to a ‘person authorised under the Mental Capacity Act’, because if so, no one else (such as AB’s brother) could seek a DP without the deputy’s support. This would give the deputy the power to terminate the arrangement if he saw fit.

The local authority made an application to the Court of Protection to seek a determination of the scope of the deputy’s authority in respect of direct payments.

The local authority’s position was that Mr Lumb did not have the authority required by the Care Act to be an authorised person under section 32. This position was not because they thought Mr Lumb was an inappropriate person had he sought authority, but rather that the authority granted to him by the property and affairs deputyship order does not automatically make him an ‘authorised person’ for the purposes of section 32.

The decision
Senior Judge Hilder appears to have agreed with the local authority’s uncontested analysis. Therefore, the standard powers granted under a property and affairs deputyship do not amount to authorising the deputy to make decisions about the adult’s needs for care and support. This means that the decision about direct payment arrangements rests with the local authority to determine whether the person seeking the DP is a ‘suitable person’ who would act in the adult’s best interests in arranging care and support and is capable of doing so.

Chase de Vere Comment:
This may present a challenge to deputies where there is a larger overall care budget to consider. However, whilst the authority granted by a standard property and affairs deputyship order does not automatically make a deputy an ‘authorised person’ it remains that local authorities will frequently consider the deputy to be the suitable person to receive DPs in such matters.

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