The personal touch

The extent of recipients’ rights to a personal budget and direct payments has been highlighted by two recent cases. Rachel Kamm analyses the rulings.

Direct payments are now an established part of the social care landscape. Local authorities first had the power to make monetary payments directly to working age adults for social care services under the Community Care (Direct Payments) Act 1996.

The system has since been extended to cover older persons, people with parental responsibility for disabled children, disabled 16 and 17-year-olds and carers themselves. The most recent development has been the introduction by the Health and Social Care Act 2008 of direct payment to adults lacking capacity and to people with mental health problems who are subject to mental health and certain criminal justice legislation (1).

Direct payments are part of a bigger picture, with the government aiming to increase the personalisation of social care and give more control to individuals. In 2007, the government identified that “everyone eligible for statutory support should have a personal budget – a clear, up-front allocation of funding to enable (people) to make informed choices about how best to meet their needs, including their broader health and well-being” (2). Once the amount in a personal budget has been decided, direct payments are one method of delivering that personal budget.

Two recent decisions highlight the extent of recipients’ rights to a personal budget and direct payments.

The duty to give reasons – R. (on the application of Savva) v Kensington and Chelsea RLBC

Judge David Pearl considered a local authority’s decision to set the level of a personal budget in R. (on the application of Savva) v Kensington and Chelsea RLBC [2010] EWHC 414 (Admin).

The claimant had completed a Personal Budget Supported Self-Assessment Questionnaire (SAQ) with her social worker in July 2009 and scored 16 points under the Resource Allocation System (RAS). This translated to £82.91 per week, which was adjusted to £132.56 and then increased to a personal budget of £170.45 per week. The claimant completed a second SAQ in November 2009, following her discharge from hospital when her needs had increased. The outcome was that she was again given a personal budget of £170.45.

The claimant challenged the decision to grant a personal budget of £170.45 on the grounds that (1) the system for calculating budgets was inadequate to discharge the local authority’s duty to provide adequate care services for her needs, (2) the local authority had failed to provide adequate reasons its decision and (3) it was irrational not to have increased the budget given that her needs had increased substantially.

The judge found that the use of the RAS by the local authority was not in itself unlawful and that there was no evidence that the decision was perverse. However, the local authority had acted unlawfully in failing to give reasons. Whilst there was no statutory requirement or general common law duty to give reasons, the duty was implied by the various references to transparency, openness and consultation in the documents published by the Government and the Association of Directors of Social Services.

The judge concluded that “personal budgets are new and in many ways represent a fundamental shift in community care. It must be incumbent on those responsible for this provision, to be transparent, and to explain individual decisions in a precise and clear manner. I fail to see how such an obligation would be unduly burdensome.” (paragraph 51).

In future, it will be easier for a future claimant to understand how their personal budget has been set and, potentially, to challenge the reasons for setting the budget at that level.

Managed accounts for direct payments – H v X City Council

Judge Langan QC held in H v X City Council [2010] EWHC 466 (Admin) that local authorities do not have the power to make direct payments through an intermediary account.

In this case, a married couple (H and L) were eligible for direct payments. The local authority believed that H was a risk to children and therefore informed various bodies and set conditions, including that personal assistants had to sign that they had been advised not to bring their children to the house. Further, the local authority required H and L to receive the direct payments via a managed account which was operated by a third party.

The judge found that the local authority had been justified in making disclosures to some bodies, but that it had crossed the line in disclosing information about H to the personal assistants. Further, it was inconsistent with the nature of direct payments for payment to be via an intermediary account; such a scheme was not justifiable in the absence of an enabling statutory provision.

Rachel Kamm is a barrister at 11KBW (www.11kbw.com).

1.     The direct payments scheme is set out in section 57 of the Health and Social Care Act 2001 and the regulations made under that section, namely the Community Care, Services for Carers and Children's Services (Direct Payments) (England) Regulations 2009, SI 2009/1887. There is also comprehensive statutory guidance - “Guidance on Direct Payments (2009)” - published jointly by the Department of Health and the Department for Children, Schools and Families.

2.     Local authority circular “Putting People First: A shared vision and commitment to the transformation of Adult Social Care” (2007) DH 081118.