Challenging potentially unlawful practices re Direct Payments February

Challenging potentially unlawful practices re Direct Payments February 2019 Steve Broach Barrister Monckton Chambers This presentation is intended for general information and should not be relied upon in relation to any individual case. www. monckton. com +44 (0)20 7405 7211

Introduction • Purpose of DPs – to enhance disabled people’s choice and control over their support • BUT evidence of a range of local policies and practices which cut across that purpose • Question for this eve – can these policies and practices be challenged as potentially unlawful? • Specific focus on adult social care – but many principles also relevant to children’s social care and NHS DPS www. monckton. com +44 (0)20 7405 7211

Statutory scheme • Sections 31 -32 Care Act 2014 – duty to make DPs if qualifying conditions met – inc ‘an appropriate way to meet needs’ • Detail of how DPs operate in Care and Support (Direct Payments) Regulations 2014 (‘the DP Regs’). • Further detail in chapter 12 of the Care and Support Statutory Guidance – issued under section 78, which requires that local authorities must ‘act under’ it (follow unless good reason not to do so). www. monckton. com +44 (0)20 7405 7211

Issues (1) Can LAs ‘claw back’ unspent funds? • • Potentially only where there is a breach of a relevant condition – section 33(5) What lawful basis to ‘claw back’ otherwise? Can LAs reduce packages based on assumptions about family care • • • No. Eligible needs must be met – section 18(1) Unless such needs are in fact being met by an ‘informal’ carer – section 18(7) www. monckton. com +44 (0)20 7405 7211

Issues (2) Can LAs have a fixed hourly DP rate? • • No Duty under section 18(1) is to meet eligible needs DP must be sufficient to purchase the services required to meet those needs – so hourly rates must be flexible LAs probably can have ‘indicative’ hourly rates Should disabled people be able to use DPs flexibly? • • Yes – that’s the whole point of DPs… Regulation 4(3)(a) of the DP Regs prohibits any condition being imposed by a LA that ‘the needs of the adult [are] to be met by any particular person’. www. monckton. com +44 (0)20 7405 7211

Issues (3) Can LAs control how disabled people use ‘underspends’? • • • No See above re ‘claw back’ If LA thinks DP amount is too generous, would need to review it and make a new decision which could be challenged (complaint / JR) Are LAs able to require disabled people to use prepayment cards? • • No – or at least probably not Stat Guidance para 12. 58 – prepaid cards ‘should not be provided as the only option to take a direct payment. • Would need good reason to depart from guidance www. monckton. com +44 (0)20 7405 7211

Issues (4) What kind of direct payment support do local authorities have a duty to provide? • • • There must be support services Form of the support service is a matter for LA, as long as rational, reasonable, fair etc Stat guidance specifies numerous matters for which support should be available, for example: • Insurance cover • Registering as an employer with HMRC Other questions? www. monckton. com +44 (0)20 7405 7211

Practical issues • Timing – judicial review (JR) needs to be brought promptly and no later than three months from the date the grounds of claim first arose • Alternative remedy – individual disputes may need to be progressed as a complaint, JR more suited for policy challenges? • Funding – are affected people eligible for legal aid? Is it an issue suitable for crowdfunding? Is there a discrimination point to get the EHRC involved? www. monckton. com +44 (0)20 7405 7211

Steve Broach Monckton Chambers email twitter blog sbroach@monckton. com @stevebroach rightsinreality. wordpress. com