Parent Asks:
I have had a cap on the direct payments I receive for my 9yr old from the Children's Trust as I had gone back to work as a part-time NHS doctor. I then had to shield my daughter as per her doctor's advice and followed the advice of being able to pay myself from her Direct payments to look after my daughter while shielding her.
I have had a response from the CEO of the Children's Trust that is:
"The article you refer to and describe as legal advice appears to come from an article and direct quote from the 'Special Needs Jungle'. On reading this article, it appears to be an opinion piece.
I understand from the email trails that it is your view that the Trust is in breach of the Care Act. The Care Act and recent legislation on the easement powers relate solely to adult social care, and there is currently no change or powers in terms of direct payments and children's social care.
The current powers pay particular attention to the National Health Service Act 2006 and National Health Service DP regulation 13, which is paid to a family member, if a specific family member is named in the care plan and if the CCG funded those Direct Payments. There is a list of requirements of adult social care and health, and this is linked to a test as to if the support is "necessary". The information then goes on to refer to times this may be deemed necessary for example; if not doing so would be a breach of the person human rights.
There seems to be a fundamental difference in an adult with needs, using their direct payments to pay a relative to carry out care tasks, and for the adult to chose who to pay and how to use/ spend their direct payments to organise their care package, when they meet the test as made out in the legislation above.
Adults with needs are not children, and therefore there is no legal requirement for the parent of an adult with needs, to provide parental care. In the case of a child, they do not receive direct payments in their own right, and they do not organise their care package to choose who to pay to carry out care tasks on their behalf in accordance with their care plan. Additionally, all parents have parental responsibility and are therefore responsible for their children's care. This applies to all parents regardless of need. There is an expectation that the vast majority of care for a child would be carried out by a parent in the normal course of parenting their child. We do not pay parents for parenting their child.
That said, in light of you raising the issue of payment to yourself, based upon legal advice you have received, the Trust has taken legal advice on this matter, and the Trust can confirm that we were informed this does not fulfil the test of necessity. Furthermore, there may considerable issues with employment law in doing this."
Kindly advise as to how I should respond to this and whether this is true?
IPSEA Answers:
It is correct that the Care Act is not the relevant legislation as that applies to adults, not children. For disabled children, direct payments are made under section 17A of the Children Act 1989.
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. The government has produced guidance for people receiving direct payments which states “Local authorities and CCGs should consider requests to pay a close family member to provide care if it’s deemed necessary.”
