Council halts direct care payments policy pending review after judicial review threat

Stockport Metropolitan Borough Council has paused its direct payments policy and is reviewing its approach after facing potential legal action over its stance that the funds should not be spent on fuel.

The local authority also rescinded its request for a disabled woman to pay back more than £2,000 in direct payments that it said she had used incorrectly by spending the money on leisure activities and transport costs to attend said activities.

The revaluation comes in response to a letter before claim from the disabled woman and her family contending that the council's policy and decisions had breached the Care Act 2014 and the Human Rights Act 1998.

In July 2021, the council wrote to the disabled woman – who is autistic, has severe learning difficulties and suffers from Turner syndrome – to inform her that it planned to reduce her care provision in accordance with a new direct payment policy.

Alongside this, the council accused the family of using some past direct payments for their daughter incorrectly and sent a final notice requesting repayment.

The letter said: "[There] has been a considerable amount of expenditure on fuel, a total of £613.17p. As this is not specifically covered in [the woman's] plan, this needs to be repaid back to Stockport MBC from other funds/accounts not the direct payment account."

The council sent four more invoices to the claimant seeking the payment of more than £1,600. The family paid £713 of this after being threatened with court action but went on to dispute the invoices and sought reimbursement.

After taking legal advice, the family responded to the council with a letter before claim. The letter, sent earlier this month, questioned the council on several issues and presented three potential grounds for a judicial review challenge.

It argued that the withdrawal of the payments meant that they no longer fund weekend support or holidays and leisure activities with her family, resulting in the woman's care and support plan failing to meet her needs.

Alongside this, the letter complained about the council's correspondence seeking to recoup the payments and claimed that the council's new direct payments policy "imposes a blanket ban on leisure activities and accessing the community".

The letter then set out legal grounds against the council's policy.

Its first ground claimed illegality, stating that the policy is in "direct contradiction" with sections 9 to 13 of the Care Act 2014 and section 6 & 10 of the Care Act 2014 Statutory Guidance.

"Direct payments are intended to allow individuals independence and autonomy to choose how to fund their care and support needs," the letter noted.

"[Redacted] has used direct payment to fund care and support at a weekend to ensure [redacted] can return home and maintain close family relationships for many years."

The second ground argued that the council's decision to withdraw the direct payment used to return home at the weekends breaches its duty under Section 1 of the Care Act 2014 to promote the individual's well-being.

Ground three contended that the decision was in breach of Article 8 of the Human Rights Act 1998, which sets out the claimant's right for a local authority to respect their private life and family life.

In response to the letter, the council is now withdrawing the new direct payments policy and reinstating the woman's original care package, pending further review. In addition, the bills for social care have now been reduced for Disability Related Expenditure and backdated to November 2021.

The council also decided to stop using the existing approach and policy to determine what people can and cannot spend their payments on until the completion of a review and agreement on a new policy.

Mathieu Culverhouse, a lawyer at Irwin Mitchell who represented the family, said: "The family's determination to challenge the council's decisions could now have far reaching implications, opening the door to others facing similar decisions in respect of direct payments."

Mr Culverhouse added: "By refusing to reinstate her direct payment and continuing to apply the new Direct Payment Policy, the council was failing to meet her assessed needs. With the new policy withdrawn, our client will once again have the lifeline of maintaining contact with her family at weekends."

A council spokesperson said: "Stockport Council is in the process of reviewing its previous direct payments policy having listened to concerns raised by residents. We accept that last year we may have made some decisions in relation to how direct payments can be spent that are not right. We are now reviewing those decisions as a matter of urgency to make sure we are fair, consistent and in line with the Care Act.

It added: "We would like to apologise to anyone affected by this issue. We understand changes to support plans, and direct payments can be an anxious experience and we sincerely apologise for any worry we may have caused. We will be getting in touch over the next two weeks with anyone who has had a review and/or a decision about a spend that has meant their payments have been stopped or reduced.

"We listen when people raise issues and concerns, and we hope this will reassure those that are affected that we reflect and respond when we need to change."

Adam Carey