Personalisation and Individual Budgets Workshop – deployment options, safeguarding, and liability. Belinda Schwehr Legal and Training Consultant [email protected] www.careandhealthlaw.com Tel: 01252 725890. Lawful deployment options.
The National Assistance Act and the relationship of agency it creates when money is given away by an LA to a voluntary organisation in an indirect payment
s30.Voluntary organisations for disabled persons’ welfare.
— (1) A local authority may, in accordance with arrangements made under section 29 of this Act, employ, as their agent, for the purposes of that section …
any voluntaryorganisation or
any person carrying on, (professionally or by way of trade or business), …activities which consist of or include the provision of services for any of the persons to whom section 29 above applies,
being an organisation or person appearing to the authority to be capable of providing the service to which the arrangements apply.
i) No payments are made by ESCC either to A and B or to X and Y. All payments under the Contract are made to the Company – the user independent trust.
ii) The Company is a legal entity quite distinct from both A and B and from X and Y: Salomon v Salomon & Co  AC 22.
iii) X and Y do not control the Company. They do not have a majority of the votes on the Board and, since the Trustees act by majority, nor do they have a veto.
iv) The Company is a non profit-making organisation. It can make no distribution to its members and any surplus on winding-up has to be repaid to ESCC. Thus this is not a trust that can be 'broken' by the family under the rule in Saunders v Vautier (1841) 4 Beav 115.
See for yourselves: http://www.bailii.org/ew/cases/EWHC/Admin/2002/2771.html
What’s one of these, then?
The draft Memorandum of Association of the Company provides:
- by clause 3 that "The object for which the Company is established is for the sole purpose of providing, or arranging to be provided support, rehabilitation, recreational activities and care to [A] and [B]."
- by clause 5 that “…no Trustee … shall be appointed to any office of the Company paid by salary or fees or receive any remuneration or other benefit in money or money's worth from the Company".
- by clause 8 that "If the Company is wound up or dissolved and … there remains any money or property it shall not be paid to or distributed among the Members of the Company, but shall be given or transferred to the Statutory Authority responsible under Community Care Legislation to provide support, rehabilitation and care to [A] and [B]."
The other component is a 'Contract for the provision of support to [A] and [B]' ("the Contract") to be entered into by the Company and ESCC.
What is described as the basis of contract is set out in clause 2. Clause 2.1 provides that: "This Agreement aims to enable as far as is possible flexible provision of care services to [A] and [B] to be arranged by [the Company]. These arrangements will in turn support [X] and [Y] in their role as carers."
Clause 2.3 provides that: "This Agreement establishes responsibilities on the part of [ESCC] and [the Company], as set out in the attached Service Specification … as it relates to the individual care plans for [A] and [B]".
The draft Service Specification provides, that ESCC will pay to the Company the funding identified by ESCC's social services department to meet the agreed needs of A and B, as detailed in their individual care plans, and that the Company will ensure that all services purchased and arranged comply with the agreed care plans.
The definition of an undertaking in s121 CSA is as follows:
“An “undertaking” includes any business or profession and
- in relation to a public or local authority - includes the exercise of anyfunctions of that authority, and -
in relation to any other body of persons, whether corporate or unincorporated, includesany of the activities of that body.
So informal groups such as circles of support or ‘Trusts’, whose ‘support’ activities amount to arranging personal care for incapacitated people, could clearly count.
Whether it is being done for profit is not an essential part of the concept – see next slide, s121(5). Neither is whether the activity being done is in the nature of a trade or profession, unlike in s29 NAA, by an ordinary contractor.
The notion of an undertaking must also be able to includeprivate individuals, because individuals come within the definition of excepted undertakings, and that would make no sense, if individuals could not ever count as undertakings in the first place…
s4(3) “Domiciliary care agency” means, subject to subsection (6), an undertaking which consistsof or includesarrangingtheprovisionofpersonalcare in their own homes for persons who by reason of illness, infirmity or disability are unable to provide it for themselves without assistance.
s121(5) References in this Act to a person who carries on an establishment or agency include references to a person who carries it on otherwise than for profit.
s(6) The definitions in subsections (2) to (5) do not include any description of establishment, undertaking or organisation excepted from those definitions by regulations.
s4(5) “Nurses agency” means, subject to subsection (6), an employment agency or employment business, being (in either case) a business which consists of or includes supplying, or providing services for the purpose of supplying, registered nurses, registered midwives or registered health visitors.
For the purposes of the Act, an undertaking is excepted from the definition of “domiciliary care agency” in section 4(3) of the Act if the undertaking is carried on by an individual who—
(a) carries it on otherwise than in partnership with others;
(b) is not employed by an organisation to carry it on; and
(c) does not employ any other person for the purpose of the undertaking.
(3) In these Regulations, the terms “employed” and “employment” include employment under a contract of service or a contract for services, or otherwise than under a contract and whether or not for payment.
(ie, being engaged by an organisation, or even being grant funded, or doing it as a Representative under the new legislation for incapacitated people’s direct payments, may make no difference).
An exceptedundertaking includes an individual who even though he or she arranges or provides personal care, does not do so on
So an individual care worker can physically provide care to someone else, and not register, if they are a one person set-up, just providing care to people on direct payments, for instance.
An individual parent, however, providing by way of arranging or employing personal care for an incapacitated person, as agent of the authority, would seem to me to be plainly outside this exception to registration….
A tenants’ association – eg self-funding elderly people, contributing a monthly sum towards their combined care costs, clubbing together to arrange services, including some personal care services, for some of the owner-occupiers who are now incapacitated, without lawful surrogates.
Possibly not - if all the occupants of the flats are capacitated, or if they are incapacitated with surrogates, because the association can then be seen as helping people to make their own individual arrangements.
But bound to be registrable if the Association employs anyone to provide anything that could possibly be seen as personal care.
Parents spending their own money to employ other people to care for their relative – they score on two out of 3 of the requirements for exception from registration, but miss out on the third – employing a person. How useless is that?
A care broker acting for an incapacitated person, accessing social care monies for them and then formally contracting ‘for’ the person – the broker can’t be their agent, in law, so would probably be seen as arranging on account of the LA….even if no SLA existed between it and him/her.
A credit union, whether incorporated or unincorporated, actually contracting for personal care services, if any of the ‘investors’ are incapacitated.
Under the 2004 Domiciliary Care Agencies Regs, in Wales, NOT in England please note, the regulations provide for a wider definition of excepted undertakings than exists in England:
Excepted undertakings …
3. - (1) For the purposes of the Act, an undertaking is excepted from the definition of "domiciliary care agency" in section 4(3) of the Act -
(c) to the extent that it arranges the provision of personal care by an agreement with an undertaking which is registered under the Act and these Regulations.
With regard to Conditions on Direct Payments, clients need to know that LAs have these powers, already…
(4) A responsible authority may make a direct payment subject to such other conditions (if any) as they think fit.
(5) The conditions referred to in paragraph (4) may, in particular, require that the payee - (a) shall not secure the relevant service from a particular person (this means company as well as an individual) ; and(b) shall provide such information to the responsible authority as they consider necessary in connection with the direct payment.
Reg 8. — (1) Except as provided by paragraph (2), the fact that an authority make a direct payment shall not affect their functions with respect to the provision under the relevant enactment of the service to which the payment relates.
(2) Where a responsible authority make a direct payment, they shall not be under any obligation with respect to the provision under the relevant enactment of the service to which the payment relates as long as they are satisfied that the need which calls for the provision of the service will be secured by the payee’s own arrangements.
Maximum periods of residential accommodation which may be secured by means of a direct payment
Reg 7. (1) Subject to paragraph (2), a direct payment may not be made in respect of a person who falls within regulation 2(1) for the provision to him of residential accommodation of a period in excess of 4 weeks in any period of 12 months.
The authority must be satisfied that the other person
Draft Regulation 10 sets out the amount and payment of direct payments to persons lacking mental capacity. There is a choice about paying gross or net.
I think it would be better to pay gross, where there is any concern that the managing person may have an interest in the assets of the service user remaining as healthy as possible. The authority can still levy invoices for the charges against the person and recover them from the person’s estate or through debt recovery, later.
Draft Regulation 12 specifies conditions which shall be made in respect of direct payments to persons lacking the capacity to consent respectively. In all such cases, S shall—
(i) act in the best interests, within the meaning of the Mental Capacity Act 2005, of P, when securing the provision of services in respect of which the direct payment is made;
(ii) provide such information to the responsible authority as they consider necessary in connection with the direct payment;
(iii) if S is not a person mentioned in regulation 8(2)(a) (ie not a close relative or friend), obtain a criminal record certificate issued under section 113B of the Police Act 1997, or obtain verification that a satisfactory certificate under that Act has been obtained, in respect of any person from whom a service in respect of which a direct payment is made is secured;
(iv) notify the responsible authority if S reasonably believes that P no longer falls within section 57(5A) of the 2001 Act; and
(v) use the direct payment for securing the provision for P of the services for which the payment was made;
… and the payment may be made subject to such other conditions (if any) as the authority think fit.
This fits with the ISA rules coming into force soon:
Those who are closely working, or applying to work, with vulnerable adults will be required to make an application to the Secretary of State to be "subject to monitoring" .
This will cover everyone engaging in what the Act refers to as "regulated activity" with the permission of a "regulated activity provider".
There are a series of criminal offences to:
a. prevent barred individuals from engaging in regulated activity in relation to children or vulnerable adults
b. ensure that people permitted to engage in regulated activity in relation to children or vulnerable adults with the permission of a "regulated activity provider" are subject to monitoring
c. ensure that relevantemployers check an individual's status in the scheme before permitting an individual to engage in regulated activity in relation to children or vulnerable adults
For an activity to be considered as regulated activity, alongside the satisfaction of criteria relating to the activity and/or establishment where it takes place, it must be carried out by the same person, frequently or satisfy the ‘period condition’ ie intensively.
All care and supervision and training and instruction Is regulated activity.
But the definition of a regulated activity provider excludes those on direct payments and those spending direct payments on close relatives or friends:
(5) P is not a regulated activity provider if he is an individual and the arrangements he makes are private arrangements.
(6) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, P himself. [ie buying your own care]
(7) Arrangements are private arrangements if the regulated activity is for, or for the benefit of, a child or vulnerable adult who is—
(a) a member of P's family;
(b) a friend of P.
[ie individuals buying care for their family or friends do not have to check the list, but can do so if they want to]
AND if the worker works for this sort of an individual, the worker does not have to register to be subject to monitoring.
58Family and personal relationships
(1) This Act does not apply to any activity which is carried out in thecourse of a family relationship.
(2) This Act does not apply to any activity which is carried out—
(a) in the course of a personal relationship, and
(b) for no commercial consideration.
So if the recipient manager is not a close relative of the client, but chooses to employ someone who IS a close relative of the recipient of the service, the worker doesn’t have to register for monitoring but they do need to be CRB’d under the draft regulations for incapacitated people’s direct payments.
Got that, now?
(2) Where a service is being delivered to the person cared for and—
(a) during the delivery of that service the person cared for asks the person delivering the service to provide a service of an intimate nature; or
(b) the person cared for is in a situation in which he is likely to suffer serious personal harm unless a service of an intimate nature is provided to him and
a service of an intimate nature may be provided.
“the purpose of introducing the well-being power is to reverse that traditional cultural approach, (ie that LAs need specific statutory authority to do anything) and to encourage innovation and closer joint working between local authorities and their partners to improve communities”
2 (4) The power under subsection (1) includes power for a local authority to—
(a) incur expenditure,
(b) give financialassistance to any person,
(c) enter into arrangements or agreements with any person, [ie it could be an ordinary spouse or parent, because the person does not have to be carrying on a trade or a business or be a voluntary organisation]
(d) co-operate with, or facilitate or co-ordinate the activities of, any person,
(e) exercise on behalf of any person any functions of that person, [ie be the person’s agent, with the person’s capacitated consent] and
(f) provide staff, goods, services or accommodation to any person.
Then the provider could get the money back from the authority, on the say-so of the promising relative or carer.
This would work if the authority was corporate appointee for the person, or simply the holder of their IB.
This utilises the flexibilities in terms of the relative doing the organising, and avoids a formal contract for anything between anyone - which probably avoids a finding that registrable arrangements have been made, but leaves all the parties without any contract at all.
It is not necessarily a direct payment and neither is it the council doing what it traditionally does, which is to contract for services.
The liability issues would be interesting to explore though…and it is a bit surreal that it would not have any contractual underpinning at all. How very modern – not!!
Is this anyone else’s job? Yes, sometimes it’s the Official Solicitor’s….