The current public health crisis will leave no aspects of our lives untouched. One of the most obvious consequences is the care and support which disabled children and young people need will be massively disrupted.
Services will close, support workers will have to self-isolate or may become unwell. The need for care and support may well increase as schools close. As such, creative solutions will be required to ensure disabled children and young people can continue to get the care and support they need.
Finding a way to fill the coronavirus care gaps
One potential solution is for ‘direct payments’ to be used to allow family members to be paid to provide care. There is a myth that this isn’t allowed – but in fact, the basic position is that it should be permitted where ‘necessary’. It is hard to think of a time where such flexible approaches could be more ‘necessary’ than at present.
To start with disabled children, for whom direct payments are made under section 17A of the Children Act 1989. Although direct payments can be made to children aged 16 or 17 themselves if they have capacity to manage them, the vast majority of such direct payments will be made to parents.
The regulations that give effect to the duties in section 17A are the Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009.
Regulation 11 sets conditions relating to making direct payments to support disabled children. It provides that the direct payment cannot generally be used to secure services from a specified list of people. This includes the person’s spouse or civil partner, a parent, a sibling or other relative who lives in the same household. However, regulation 11 makes clear that direct payments can be used to secure services from these people (including parents) where the local authority is ‘satisfied that securing the service from such a person is necessary…for promoting the welfare of the child in respect of whom the service is needed.’
This means that LAs are permitted to make DPs for a disabled child, to employ close family members living in the same household to provide care. The only requirement is that the local authority accepts that this is necessary for promoting the child’s welfare. I would strongly encourage LAs to operate a presumption during the current crisis that it will be necessary for direct payments to be used in this way, unless there is evidence to the contrary. This will avoid local authorities and families having to engage in potentially lengthy disputes about the facts of a particular case.
Direct payments under the Care Act
The position is similar in relation to disabled people over 18 whose eligible needs will be met under the Care Act 2014. Sections 31-33 of the Care Act, govern the way in which direct payments are made to disabled adults and their carers. The relevant regulations here are the Care and Support (Direct Payments) Regulations 2014.
Regulation 3, governs direct payment conditions and works in a similar way to the children’s regulation discussed above. Local authorities are again required to ensure that direct payments are not used to employ parents or other close family members living in the same household as the disabled adult (or carer). But there is an exception in relation to paying close family members living in the same household to meet care needs ‘if the local authority considers it is necessary to do so’. Again, I would encourage LAs to operate a presumption that it is necessary for disabled people and carers to use their direct payments to employ family members to provide care during the current crisis.
It is important to emphasise that there are no specific restrictions on disabled children or adults or their parents using direct payments to employ family members who do not live in the same household to provide care.
Important points to note about direct payments
There are three other important points to raise:
- First, family members who are paid from direct payments for providing care may find that this has a significant impact on their own welfare benefits if they have them. Family members who are concerned about this should seek advice from a citizens advice bureau or specialist charity.
- Second, there appears to be no reason in principle why a parent of a disabled child or adult who receives direct payments on their behalf could not employ themselves to provide care, if this was ‘necessary’. However parents considering this would be particularly advised to ensure advance agreement from their local authority, given the potential for allegations of conflicts of interest, or worse here.
- Third, if a family are already using direct payments to employ paid carers, there may be employment law issues (as well as ethical issues) with switching the direct payments to employ family members to provide care. Again, specific advice will need to be sought, including potentially from a direct payment support service. It will be important to look closely at the contract with the direct payment workers before taking any steps to change the way care is provided.
The current public health emergency will require all parties to be flexible to ensure the needs of disabled children and adults are met effectively. Allowing close family members to be paid for providing care may well be part of the solution here.
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