Appendix one: what are the statutory duties in relation to direct payments in England

In practice, councils must ensure that all policies, procedures, and personal decisions related to direct payments take these human rights considerations into account, fostering a culture of respect and safeguarding people’s rights within service delivery. Compliance with the Human Rights Act helps ensure that the administration of direct payments supports human dignity, autonomy, equality, and fairness.

The Human Rights Act 1998 incorporates the European Convention on Human Rights (ECHR) into UK law, ensuring that public authorities, including local councils in England, respect the rights enshrined in the Convention. In the context of direct payments for social care, the Act has significant implications for how councils operate, ensuring respect for people’s rights.

Public Authority Accountability. Local councils, as public authorities, are required to respect the rights set out in the ECHR when making decisions about direct payments and social care.

Right to Respect for Private and Family Life (Article 8).Councils must ensure that decisions regarding direct payments respect people’s autonomy, dignity, and right to make personal choices about their care. Any assessment or review of a person’s eligibility for direct payments should respect their privacy and family life, intervening only when necessary and proportionate.

Prohibition of Discrimination (Article 14). Councils must ensure there is no discrimination in the provision of direct payments. All people should have equal access to direct payments and support, based on their assessed needs, without unjustified differential treatment.

Right to a Fair Hearing (Article 6). People have the right to appeal council decisions about direct payments. The process should be fair and transparent, providing an opportunity to challenge decisions and be heard.

Right to Life (Article 2) and Prohibition of Inhuman or Degrading Treatment (Article 3).Councils must ensure that arrangements for direct payments do not compromise the safety or well-being of people. This includes ensuring that care and support plans involving direct payments adequately support the persons health and safety.

Finance and audit staff and managers

The Care Act 2014 and the Care and Support (Direct payments) Regulations 2014.

Finance and audit staff and managers must ensure financial management associated with direct payments uphold the principles of choice, control, and personalisation in social care as set out by the Care Act 2014. There are several sections that relate to the provision and management of direct payments, which have implications for finance and audit staff and managers in councils. The key sections are:

Section 31. This gives local authorities a duty to meet a person’s eligible needs by making direct payments, if requested. It outlines when and how direct payments should be provided and requires that they be sufficient, safe, and that the recipient is able to manage them, either independently or with assistance. This section also details the conditions under which adults with the mental capacity can request direct payments. Local authorities must offer direct payments to people who wish to arrange their own care and who have been assessed as eligible.

Section 32. This section provides guidance on providing direct payments to people who lack the capacity to request them, ensuring that appropriate arrangements are in place. Finance and audit staff and managers should put in place audit systems to check that payments are managed properly on behalf of people.

Section 33 outlines the framework for determining who may receive direct payments. It emphasises that individuals eligible for care and support should be considered for direct payments if it facilitates greater control over how their needs are met. It covers:

Consent and Capacity. For a person to receive direct payments, they must consent to have them and have the capacity to manage the payments themselves (or with assistance from a nominated or authorised person).
Employment of Individuals This section includes provisions about employing individuals, directly or indirectly, with the direct payments.
Use of Direct Payments. Section 33 outlines how direct payments should be used in line with meeting assessed eligible needs as identified in the care and support plan.
Conditions and Safeguards. Local authorities have the power to impose conditions on how direct payments are used to ensure the welfare and best interests of the recipient. The requirements often include proper accounting and potential intervention if misuse is identified.
Review and Monitoring. Provisions for regular review and monitoring of the direct payments to ensure they are being used effectively to achieve the intended goals within the care and support plan (support plan for unpaid carers).

Sections 14 and 17 deal with charging and financial assessment, they determine the contributions people may need to make toward their care.

To implement these sections effectively, finance and audit staff and managers should also refer to the statutory guidance accompanying the Care Act 2014, which provides more detailed recommendations and practical advice for administering direct payments

The Mental Capacity Act 2005

Finance and audit staff and managers statutory duties include ensuring compliance, overseeing proper financial management, and supporting people in managing their direct payments.

Supporting Capacity Assessment Under the Mental Capacity Act 2005. Finance and audit staff and managers should work with social work practitioners to ensure that people are properly assessed in relation to their capacity to manage direct payments. If a person lacks capacity to do so, the framework provides for appointing someone with legal responsibility to manage the funds on their behalf (a "suitable person").

Compliance with Legislation. Finance and audit staff and managers should work with social work practitioners to ensure that the administration of direct payments complies with both the Care and Support (Direct payments) Regulations 2014 and the Mental Capacity Act 2005. This includes ensuring that the processes for assessing a person’s capacity to manage direct payments and appointing "suitable persons" where necessary are properly followed. Finance staff who audit direct payments may not get involved in capacity assessments. Some finance staff may, such as those supporting benefits maximisation and financial assessments.

Adult Principal Social Workers (PSWs) have a key role in ensuring that direct payments are administered in line with legal duties, best practice, and social work values.

The Care Act 2014 and the Care and Support (Direct payments) Regulations 2014.

PSWs must ensure financial management associated with direct payments uphold the principles of choice, control, and personalisation in social care as set out by the Care Act 2014. There are several sections that relate to the provision and management of direct payments, which have implications for in councils. The key sections are:

Section 31. This gives local authorities a duty to meet a person’s eligible needs by making direct payments, if requested. It outlines when and how direct payments should be provided and requires that they be sufficient, safe, and that the recipient is able to manage them, either independently or with assistance. This section also details the conditions under which adults with the mental capacity can request direct payments. Local authorities must offer direct payments to people who wish to arrange their own care and who have been assessed as eligible.

Section 32. This section provides guidance on providing direct payments to people who lack the capacity to request them, ensuring that appropriate arrangements are in place.

Section 33 outlines the framework for determining who may receive direct payments. It emphasises that individuals eligible for care and support should be considered for direct payments if it facilitates greater control over how their needs are met. It covers:

Consent and Capacity. For a person to receive direct payments, they must consent to have them and have the capacity to manage the payments themselves (or with assistance from a nominated or authorised person).
Employment of Individuals This section includes provisions about employing individuals, directly or indirectly, with the direct payments.
Use of Direct Payments. Section 33 outlines how direct payments should be used in line with meeting assessed eligible needs as identified in the care and support plan.
Conditions and Safeguards. Local authorities have the power to impose conditions on how direct payments are used to ensure the welfare and best interests of the recipient. The requirements often include proper accounting and potential intervention if misuse is identified.
Review and Monitoring. Provisions for regular review and monitoring of the direct payments to ensure they are being used effectively to achieve the intended goals within the care and support plan (support plan for unpaid carers).

Adult Principal Social Workers (PSWs) have a strategic and advisory role in relation to social work practice, including the area of direct payments under the Care Act 2014 and Support (Direct payments) Regulations 2014 They have several key duties that influence how direct payments are managed within social work teams:

Leadership. PSWs provide leadership to the social work workforce to help them understand the flexibility and responsibilities that come with direct payments, as part of personalisation efforts to empower people to have more control over their care.

Promoting Ethics and Best Practice. PSWs need to ensure that the ethical framework and best practice principles are adhered to in the administration of direct payments This involves promoting a person-centred approach that empowers people to have choice and control over their care arrangements through direct payments.

Policy Development and Implementation. PSWs need to ensure that social work practice aligns with the legal requirements of the Care Act and relevant statutory guidance.

Ensuring Compliance. PSWs should ensure that the assessments and decisions regarding direct payments comply with the Care Act 2014, the Care and Support (Direct payments) Regulations 2014, and accompanying guidance. This involves making sure that appropriate eligibility criteria and conditions are applied consistently.

Training and Development. PSWs need to ensure that social work practitioners are well-informed about direct payments, including eligibility, assessment, and monitoring.

Quality Assurance. PSWs play a role in auditing and quality assurance processes to monitor the use and management of direct payments They ensure that systems are in place to safeguard public funds and that risks are adequately managed.

Advocacy and Representation. PSWs act as advocates for the social work perspective in discussions about direct payments with other stakeholders within the council and with partner organisations.

Advising on where someone’s support needs are complex. PSWs provide advice and oversight on where someone’s support might be complex, ensuring that appropriate risk assessments are made when determining the suitability of direct payments for people with complex needs.

Safeguards and Risk Management. PSWs should ensure that appropriate safeguards are in place to protect people from potential financial or welfare risks associated with managing direct payments

Feedback and Improvement. PSWs should ensure that there are mechanisms for collecting and responding to feedback from both people using direct payments and social work practitioners

The role of Principal Social Workers is pivotal in ensuring that direct payments are used effectively and ethically, supporting the overarching goals of the Care Act 2014 to promote wellbeing and independence among people receiving care. They play a pivotal role in leading social work practice development and bridging any gaps with strategic management. This does not mean the PSWs have a management responsibility for all social work practitioners who may be involved in direct payments.

The Mental Capacity Act 2005 (supporting those who lack capacity to consent to or manage direct payments.

In the context of direct payments under the Mental Capacity Act 2005 for adults who may lack the capacity to manage these payments, the Principal Social Worker plays a vital role in ensuring that the processes and practices uphold the principles of the Act and the best interests of the people involved. PSWs have a leadership role in ensuring:

assessment of capacity: the PSW provides guidance and oversight to social work practitioners conducting capacity assessments, ensuring these are comprehensive and adhere to the principles of the Mental Capacity Act 2005. This includes determining whether people have the capacity to manage a direct payment.
best interests decision-making: PSWs provide oversight to make sure that the decision-making process follows the 'Best Interests' principle outlined by the Act.
supporting decision-making: PSWs advocate for and encourages practice that enhances a person’s capacity to make decisions whenever possible, encouraging the use of all practical steps to minimise restrictions on personal autonomy.
appointment and oversight of suitable persons: for people who cannot manage direct payments, PSWs ensures that staff understand that they should seek a 'suitable person' to appoint to manage the payments on behalf of the person. This could be a family member, friend, or a professional, and PSWs role is to ensure that social work practitioners understand how to check that this person acts in the person’s best interests and in accordance with their needs and preferences.
personnel training and support: PSWs ensures that social work practitioners are well-trained in the principles of the Mental Capacity Act and how it applies to direct payments, providing access to ongoing professional development and support.
policy and procedure development: PSWs inform the development and implementation of local policies to ensure that practices related to direct payments under the Mental Capacity Act are legal, ethical, and effective.
Advocacy and Rights Protection. PSWs champions the rights of people lacking capacity, ensuring their interests are protected and that they are safeguarded against any potential exploitation or misuse of funds.
monitoring and review: PSWs should ensure that there is regular review of how direct payments are managed and utilised when the people lack capacity, ensuring compliance with all legal frameworks and safeguarding legislation, and that social work practitioners understand that adjustments should be made as necessary to improve support.
liaison and coordination: work with other practitioners and agencies to ensure a coordinated approach to care and financial management, bridging any gaps between health, social care, and financial support services.
complaints and Issue resolution: PSWs may advise on addressing and resolving complaints or issues associated with the management of direct payments, ensuring a fair and transparent process for all stakeholders involved.

Social Work England, professional standard 4.4 Demonstrate good subject knowledge on key aspects of social work practice and develop knowledge of current issues in society and social polices impacting on social work.

The Care Act 2014 and the Care and Support (Direct payments) Regulations 2014

Social work practitioners must ensure financial management associated with direct payments uphold the principles of choice, control, and personalisation in social care as set out by the Care Act 2014. There are several sections that relate to the provision and management of direct payments, which have implications in councils.

The key sections are:

Section 31. This gives local authorities a duty to meet a person’s eligible needs by making direct payments, if requested. It outlines when and how direct payments should be provided and requires that they be sufficient, safe, and that the recipient is able to manage them, either independently or with assistance. This section also details the conditions under which adults with the mental capacity can request direct payments. Local authorities must offer direct payments to people who wish to arrange their own care and who have been assessed as eligible.
Section 32. This section provides guidance on providing direct payments to people who lack the capacity to request them, ensuring that appropriate arrangements are in place.
Section 33 outlines the framework for determining who may receive direct payments. It emphasises that individuals eligible for care and support should be considered for direct payments if it facilitates greater control over how their needs are met. It covers:
- consent and capacity: for a person to receive direct payments, they must consent to have them and have the capacity to manage the payments themselves (or with assistance from a nominated or authorised person).
- employment of individuals: this section includes provisions about employing individuals, directly or indirectly, with the direct payments.
- use of direct payments: Section 33 outlines how direct payments should be used in line with meeting assessed eligible needs as identified in the care and support plan (support plan for unpaid carers).
- conditions and safeguards: local authorities have the power to impose conditions on how direct payments are used to ensure the welfare and best interests of the recipient. The requirements often include proper accounting and potential intervention if misuse is identified.
- review and monitoring: provisions for regular review and monitoring of the direct payments to ensure they are being used effectively to achieve the intended goals within the care and support plan (support plan for unpaid carers).

Social work practitioners have specific statutory duties related to direct payments under the Care Act 2014. Direct payments are monetary payments made to people who have been assessed as eligible to receive social care services, allowing them to arrange and pay for their own care and support.

assessment of needs: social work practitioners are responsible for assessing people’s needs for adult social care services, to inform care and support planning which pay include a consideration of receiving direct payments. This assessment must be person-centred and outcome-focused, considering the people’s preferences and goals.
eligibility determination: following the needs assessment, social work practitioners must apply the national eligibility criteria as set out in the Care Act 2014 to determine if a person qualifies for care and support services, including direct payments.
care and support planning: once it is established that a person has eligible needs, social work practitioners work with them to develop a care and support plan that outlines the person's care needs, desired outcomes, and how these will be achieved. This includes the option of using direct payments, and if used, details how the direct payment will be used to purchase care and support services.
information and advice: social work practitioners are required to provide people with comprehensive information and advice about direct payments. This includes explaining how direct payments work, the benefits and responsibilities involved, and the choices available to the people.
promotion of direct payments: under the Care Act 2014, there is a duty to promote the use of direct payments as an option for people eligible for social care services, ensuring that people are aware that direct payments are available and that they offer an opportunity for greater choice and control over their care.
support for decision-making: social work practitioners must support people to make informed decisions about whether to receive direct payments and how to use them effectively. This includes assessing people’s capacity to manage direct payments and providing or arranging support when needed.
monitoring and review: social work practitioners have a duty to regularly monitor and review the use of direct payments to ensure that they are meeting the intended outcomes and that people’s needs continue to be met. This includes adjusting the care and support plan (support plan for unpaid carers), as necessary.
safeguarding and risk management: social work practitioners must ensure that appropriate safeguards are in place to protect people receiving direct payments from abuse, neglect, and exploitation. They play a crucial role in recognising and addressing potential risks and implementing protective measures.
financial oversight: social work practitioners have a responsibility to ensure that there are systems in place to monitor how direct payments are being used. They must ensure that people are keeping proper records of expenditure and that funds are being used appropriately as per the care and support plan (support plan for unpaid carers).
facilitating access to support: where people require assistance to manage their direct payments, social work practitioners should help facilitate access to support, such as brokerage services or user-led support organisations that can assist with managing funds, employing staff, where relevant, and care arrangements.

Advocacy and the Care Act (2014):

duty to provide advocacy support; under the Care Act (2014) Local authorities have a duty to arrange independent advocacy for individuals who have substantial difficulty in being involved in assessments, care and support planning, and review of care and support plans, ensuring that their voice is heard and considered.
criteria for substantial difficulty: substantial difficulty encompasses issues such as understanding relevant information, retaining information, using or weighing the information as part of decision-making, or communicating views, wishes, or feelings.
eligibility for advocacy: advocacy must be provided if an individual has substantial difficulty in participating and there is no appropriate individual available to facilitate involvement. An appropriate individual would be someone who is not paid or professionally engaged in the individual’s care or treatment and who is willing to act in the person’s best interests.
role of the advocate: the advocate's role is to support and represent the individual's views and preferences, ensure their rights are upheld, and assist them in understanding and navigating the care and support process. This may include attending meetings with the individual and assisting in communication with local authorities.
specific circumstances requiring advocacy: The Act specifies particular instances when advocacy must be considered, such as during assessments, preparation and review of care and support plans, and safeguarding inquiries or reviews.

Mental Capacity Act 2005

The Mental Capacity Act 2005 (supporting those who lack capacity to manage direct payments)

Under the Mental Capacity Act 2005 (MCA), social work practitioners have specific duties when supporting people who lack capacity in the context of direct payments.
Capacity Assessment. Where there is uncertainty about a person’s capacity in relation to making decisions about their care and support, social work practitioners should consider whether to assess their capacity to understand, make, and communicate decisions about direct payments. The assessment should be decision-specific, time-specific, and carried out in accordance with the principles of the MCA.
Act in Best Interests. If a person is found to lack capacity regarding direct payments, social work practitioners must ensure that any decisions made on their behalf are in their best interests. This involves considering the person’s past and present wishes, feelings, beliefs, and values.
Involve the Person. As far as possible, social workers should involve the person in the decision-making process, ensuring they participate in decisions affecting their lives.
Least Restrictive Option. Decisions should be made in a way that is least restrictive of the persons rights and freedoms, care and support, enabling them to be involved as much as possible.
Appointment of a Suitable Person. When a person lacks capacity to manage direct payments, social workers have a duty to identify and appoint a "suitable person" to receive and manage the payments on their behalf. This could be a family member, friend, or another person that the councils consider suitable to receive and manage the direct payment and manage it, acting in the person's best interests. An independent mental capacity advocate (IMCA) may be involved if a person has a long-term change in accommodation. This would rarely be relevant to direct payments but might sit alongside a change of care and support plan, where direct payments may be involved.
Provision of Information and Support. Social workers must provide the person, their family, or representatives with appropriate information and support to understand direct payments and any decisions made, helping them exercise their rights under the MCA.
Regular Review and Monitoring. Social work practitioners are responsible for the review and monitoring of arrangements to ensure that the support and management of direct payments remain effective and continue to serve the best interests of the person drawing on care and support. This includes financial monitoring and assessing whether the person or, where relevant, the suitable person, is managing the payments properly.
safeguarding. S: social workers have a duty to ensure that protective measures are in place, if required, to prevent abuse, neglect, or exploitation of people who lack capacity. They must remain vigilant to potential safeguarding issues related to the management of direct payments.
documentation and record-keeping: all decisions, assessments, and actions taken must be clearly documented, showing compliance with the MCA’s principles and justifying why particular decisions were made.
enable decision-making: where possible, social work practitioners should support people in improving their capacity to make decisions, if achievable, through providing learning and support opportunities.

Assessment and planning

multidisciplinary assessment: social work practitioners should be involved in the multidisciplinary team (MDT) process when assessing a person’s eligibility for NHS Continuing Healthcare. They should contribute to creating a comprehensive care and support plan, ensuring it accommodates identified health and social care needs.
collaborative care approach: social work practitioners should work collaboratively with health practitioners, to ensure that the care and support plan integrates seamlessly with any additional social care services the person may require.
joint support plans: social work practitioners should develop holistic care and support plans that address overlapping health and social care needs, ensuring cohesive service delivery.
involvement in direct payment process: social work practitioners should provide essential information and advice about how direct payments work, emphasising personal choice and control.
coordination role: social work practitioners should ensure that people and their representatives understand their rights and responsibilities in managing direct payments.
assessing capacity: social work practitioners should ensure that a person’s capacity is assessed in relation to decision-making about managing direct payments, if there are concerns about their ability to make such decisions. Any decisions should be made in the person’s best interests. This can also be done by a health colleague.
identifying a representative: if a person lacks capacity, social work practitioners help identify a suitable person to manage the personal health budget.
monitoring risks: social workers should be vigilant about potential risks, ensuring that mechanisms are in place to safeguard the person's welfare when direct payments are involved.
addressing safeguarding concerns: social work practitioners should initiate enquiries if there are safeguarding issues, ensuring protective measures in the management and implementation of direct payments.
regular reviews: social work practitioners should conduct regular reviews of the care and support plan and the management of direct payments to ensure the needs of the people are being adequately met. This should be done jointly when the person has a personal health budget or continuing health care.
adjusting plans: social work practitioners contribute to re-evaluating and adjusting care and support plans (support plans for unpaid carers), as necessary when changes in circumstances occur.
promote self-advocacy: social work practitioners should support people in understanding and exercising their rights under the CHC Framework, empowering them to make informed decisions about their care options.
representation and support :it is important that the person is supported to be as involved in decision-making as possible. This may involve other people such as a family member or an independent advocate representing them or supporting them. It may also include a social work practitioner championing their wishes, if they know the person well.
information on complaints process: social work practitioners should ensure people know how to provide feedback or make complaint to the to the council about their care and the management of direct payments.