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If you currently receive support through social care direct payments or are considering requesting support, please take the time to carefully read and consider the guidance and terms and conditions of Direct Payments. This will help you make an informed choice about where you feel this is right for you and your family.
Please see our Jargon buster page for explanations of specific words and terms which may be used within this guidance.
If you have any questions, please talk to your social care practitioner, or ask for advice. Devon County Council is not able to make direct payments without a consent and direct payments agreement being signed by the recipient.
Receiving direct payments
Direct payments are not classed as income so they are not taxed and will not affect the level of any benefits you receive. If direct payments are used to employ a person then there is the responsibility to have Employer’s Liability Insurance and to pay tax and national insurance for the employee and to make a pension available where needed.
Direct payments are usually paid four weekly, in advance, into the provided account. You’ll need to keep receipts and records of what you spend as explained in the Consent and Direct Payment legal agreement. We may ask to reassess your child’s needs are in order to ensure planning continues to meet these.
It is important to remember that direct payments can only be used on the service detailed within either the Social Care Plan or, where a personal education budget is provided, the Education, Health and Care Plan. We will regularly monitor the use of direct payments and may ask for information detailed within the Consent and Direct Payment legal agreement.
However, if we believe that the funds have been spent outside of the services detailed within the plan we are required to give you notice to cease the direct payments. You have the right to ask us to reconsider this decision which we aim to do in partnership with you.
How are direct payments set up?
Your social care practitioner will talk to you about how support can be provided to meet you, or your child’s assessed eligible social care needs. We will ask you some questions to help us assess if direct payments are the right way of providing support and if you might need any assistance with accessing and using direct payments. We will refer to this as a suitability checklist. Once agreed by Devon County Council we will:
- send you a welcome letter explaining all the essential information about your direct payments and providing contact details for the service to support you in making the most of direct payments
- send you the Direct Payments Consent and Agreement – please read this carefully as this is an agreement you are entering into when consenting to receive direct payments – we will keep a copy of this, and payments cannot be made without this agreement
- talk to you to ensure you understand your responsibilities in accessing direct payments and ensure you understand the consent and agreement before signing
- send you the DBS (Disclosure and Barring Service) information and Declaration of Criminal Records form if this is required in your circumstances
Our direct payments advisors are here to help and can give advice about becoming an employer – for things like payroll, pensions, and insurance. We will provide an approved account for the direct payments. You are welcome to add money to this account but cannot transfer money into your personal account or purchase items that are not agreed within the relevant education and/or social care plan. This ensures that the money you receive for the direct payments can be separately identified from your own personal finances.
Determining the use and value of direct payments
Direct payments provided by the Disabled Children’s Service are not designed to meet every identified need for a child, but rather those which are unmet social care needs above the level of support which is reasonably accessible to the child or young person and family.
Using direct payments
Direct payments must be used lawfully to meet the child’s assessed needs as set out in their social care plan and to support them to achieve outcomes as agreed between the recipient and Devon County Council. This will be in line with the Direct Payments Consent and Agreement form signed by the recipient and will be tailored to each child or young person.
Direct payments are used to meet assessed individual and parent carer needs and the way in which this can happen is flexible. The primary reason for direct payments is to provide the child or young person with an enabler that allows for them to access activities that develop skills and independence away from the primary carer thus providing a short break for both carer and child as well as access to developmental, sociable, and fun activities for the child or young person.
Access to a short break is most often through using direct payments to pay for an enabler to provide the support required to enable the child or young person to access a short break.
A parent, carer or young person agreeing to receive direct payments for the purchase of employed enabling services undertakes to make all arrangements to become the legal employer of any such enabler and to make all payments in accordance with the requirements of HMRC (HM Revenue and Customs) and employment law.
Devon County Council will provide some support to direct payment recipients as well as signposting recipients of direct payments to a third party to support them to meet these legal requirements.
Recipients of direct payment must always inform the Council if there is a change of an enabler regardless of their employment status to ensure necessary employment checks are completed by the Council. Where employed enablers are family members agreement of the Council is necessary prior to their employment.
It’s important that you, as a recipient of direct payments, carefully consider the details within social care plans and ensure that the support purchased is in line with these details.
The Council will regularly review spends from the direct payments account. Where we identify spending which is not in line with the social care plan it may lead to us considering that this is a misspend. In line with the regulations for direct payments the Council must in these circumstances contact you, as a recipient, confirming that we have identified misspending and providing notices to cease direct payments. If you receive this letter you can request that the Council review their decision. As part of this we will consider the spending and details contained within the social care plan. In some circumstances we may believe that we cannot continue to provide direct payments.
Limitations on the use of direct payments
Direct payments are provided to meet the needs as assessed by Devon County Council as detailed within the child or young person’s social care plan. Any item, service or activity which does not clearly meet these needs would not be acceptable and would be a misuse of funds.
Devon County Council will ask for the money to be repaid if the money has not been used as described in the social care plan. Purchases that could not reasonably be in the best interests of the child or young person are also prohibited and this includes anything that is illegal or that would endanger the child, young person, or any other person.
Use of funds
When we undertake a review or reassess a child or young person’s needs, we will consider the way that any direct payments support provided has been used. This will include reviewing past expenditure and, in some instances, talking to the parent or young person.
Also, we review the level of funds available to you at any time to ensure the recipient has access to the necessary funding to access the identified support. This action will not change the review or the assessment of a child or young person’s needs.
Misuse of funds occurs when the direct payment is used for purchases other than those specified in the child’s social care plan, or as set out in the direct payments agreement. This will be considered a misuse and Devon County Council will seek to recover the misspent amount from the parent or carer immediately. This may include the requirement to make a referral to internal audit, debt recovery or include the issue of proceedings in the county court.
Misuse will result in an assessment or review of the child’s eligibility for direct payments. Devon County Council provides notice to ceasing direct payments allowing recipients to request the Devon County Council review of this decision will aim to undertake this review working with those involved. The Council may decide to withdraw direct payments and offer alternative services or to make direct payments to another individual.
Review of and ending direct payments
All children and young people who are in receipt of direct payments will be monitored and the use of direct payments and impact on the child or young person will be reviewed annually by the social care team. This review could lead to an assessment and change in the amount of support assessed as being necessary.
As children mature, consideration will be given to the continuing suitability of support, to meet the child or young person’s changing needs, to protect their dignity, and how intimate care needs are to be met.
A decision to discontinue direct payments can be made by either Devon County Council or the direct payments recipient. The normal notice period for termination in either direction is a minimum of four weeks unless the urgency of the decision cannot be delayed. However, the Council reserve the right to temporarily manage accounts where concerns related to spending have been indicated. Payment can continue to be made in line with the child’s plan by the council or an arranged management company.
The Council will make all reasonable and practicable endeavours to resolve any minor discrepancies with the recipient. However, the Council may temporarily manage accounts where concerns related to spending have been indicated as detailed in the Direct Payments Agreement.
The Council will only do so where they believe that it is reasonable, necessary, and proportional. In such instances, Devon County Council will write to the recipient detailing the concerns, actions taken and how to resolve these. This may lead to further assessment of the suitability of the recipient and the support necessary to assist them in accessing direct payments.
Misuse of direct payments occurs when the funds provided by Devon County Council appear to not be being used to secure the provision of the services identified by the Council within the child’s plan. The Special Educational Needs (Personal Budgets) Regulations 2014 and The Community Care, Services for Carers and Children’s Services (Direct Payments) (England) Regulations 2009 sets out that the Council must stop making direct payments. Where a decision to stop making direct payments has been made we will write to the family giving 20 days notice. The family has 10 days to request that this decision is reconsidered. Following this reconsideration the Council will write to the family confirming the decision.
Getting advice about managing direct payments
Our direct payments advisors – part of Disabled Children’s Services – can support you and offer information about social care direct payments. The direct payments advisors can help with:
- understanding the differences between employing someone directly, self-employed and using an agency
- job descriptions, advertising, liaising with care agencies and recruiting staff
- advice on rates of pay, national minimum wage
- identifying risks to the family or employee
- support in all aspects of employment law including paying wages, tax, pension, national insurance liabilities, holidays, sick pay and buying employers’ liability insurance
- contingency arrangements
- Disclosure and Barring Service (DBS) checks
- self-employed status checks
You can email us at childsc.disabledchildrensshortbreakhelpline-mailbox@devon.gov.uk or call 01392 385276 selecting option 2.
Dosh – Financial Advocacy is an organisation that supports people with a learning disability to manage their money. They also help a young person to manage their own direct payments.