CHILDREN'S SERVICES DIRECT PAYMENTS POLICY AUGUST

CHILDREN’S SERVICES

DIRECT PAYMENTS POLICY

AUGUST 2021

REVIEW AUGUST 2023

To make North Somerset a truly great place

for children and young people to thrive;

where all have the best possible life and

opportunities, including those who are

vulnerable, disadvantaged and/or have

special educational or additional need

CONTENTS

1. Direct Payments

1.1 What is a direct payment 4

1.2 Legislative Basis 4

1.3 Direct Payments for Education Services 4

1.4 Direct Payments for N HS and Allied Health Services 5

2. Eligibility 5

2.1 Who can receive the payment 6

2.2 Assessment 7

2.3 Calculating Payments 7

3. How Often are direct payments made? 8

4. What can a Direct Payment be used for? 8

4.1 Employing a personal assistant (PA) 8

4.2 other uses for Direct Payments 9

4.3 Direct Payments for Care & Supported provided under s.17A of the

Children Act 1989 9

5. What may a Direct Payment not be used for 10

5.1 Restrictions on Employment 10

5.2 Permanent Accommodation and Short Breaks 11

5.3 Discretionary Use 11

6. Hospital Stays 11

7. Safeguarding 11

7.1 Employees 11

7.2 Use of Agencies or self-employed staff to provide personal care 12

8. Additional Considerations 12

8.1 Employing relatives as carers/personal assistants 12

8.1.1 Relatives who live with the child or young person at home 12

8.1.2 Relatives who do not live with the child or young person at

Home 13

8.2 Transferring between a Direct Payment and a direct service 13

8.3 Transfer to adult Services 13

8.4 Recruiting, training and Employing Personal Assistants 14

9. Roles and Responsibilities

9.1 The recipient of the direct Payment 15

9.2 the Children with Disabilities Team 15

9.3 Payroll Services and Brokers 15

9.4 The Direct Payment Support Team 16

9.5 The Local Authority Finance Team (Payments) 16

10. Decisions not to make Direct Payments 16

11. Monitoring and Review of Direct Payments 16

11.1 Frequency of reviews 17

11.2 Scope of Reviews 17

11.3 Outcome of reviews 17

11.4 Notification of Outcomes 17

11.5 Quarterly financial Audits 18

12. Changes to the Direct Payment Agreement

12.1 Reducing the amount of Direct Payments 18

12.2 Repayment and Recovery of Direct Payments 18

12.3 Ceasing Direct Payments 19

12.4 Funding additional provision from employees or providers 20

12.5 Right to reconsideration 20

13. Further support, advice and guidance 20

1.1 What is a Direct Payment?

A Direct Payment is a payment made by the Local Authority to:

• young people aged 16 years or over; or

• to the parents or carers of a child under 16 years old

to enable them to purchase care and support that the child or young person needs to meet

the child or young person’s assessed needs, instead of the Local Authority providing that

support directly through services it runs or commissions.

Direct Payments are not part of a child or family’s benefits and receiving a payment will not

typically affect benefit entitlements.

The purpose of Direct Payments is to give the recipient choice and control in making

decisions how to best meet their own needs or the needs of their children and family, by

providing a flexible alternative to directly provided services. Direct Payments also support

the co-production of creative solutions with children and young people and their parents and

carers.

Direct Payments can be made in connection with special educational provision, health care

and social care provision, however there are specific considerations around education and

health support which are detailed below.

Local authorities are under a duty to make a direct payment where:

• the person appears to the responsible authority to be capable of managing a direct

payment by himself or herself or with such assistance as may be available to the

person;

• the person consents to the making of a direct payment (local authorities cannot insist

that a person has a direct payment);

• the responsible authority is satisfied that the person’s need for the relevant service

can be met by securing the provision of it by means of a direct payment; and

• the responsible authority is satisfied that the welfare of the child in respect of whom

the service is needed will be safeguarded and promoted by securing the provision of

it by means of a direct payment

1.2 Legislative Basis:

• the Children & Families Act 2014, the SEND Code of Practice and the Special

Educational Needs (Personal Budget) Regulations 2014.

• section 17A Children Act 1989 and the Community Care, Services for Carers and

Children's Services (Direct Payments) (England) Regulations 2009

• Chronically Sick & Disabled Persons Act 1970.

1.3 Direct Payments for Education services

The local authority may only make direct payments where a request has been made for

direct payments to be made and the authority is satisfied that the recipient will use them to

secure the agreed provision in an appropriate way; where the recipient is the child's parent

or a nominee, that person will act in the best interests of the child or the young person when

securing the proposed agreed provision; the direct payments will not have an adverse

impact on other services which the local authority provides or arranges for children and

young people with an EHC plan which the authority maintains; and securing the proposed

agreed provision by direct payments is an efficient use of the authority's resources.

Where a direct payment is proposed for special educational provision, the early years

setting, school or college must agree to a direct payment being used before it can go ahead.

A local authority may only make direct payments in respect of the special educational

provision specified in an EHC plan,and may not make direct payments for the purpose of

funding a place at a school or post-16 institution.

1.4 Direct Payments for NHS and allied health services.

Direct Payments for health services require the agreement of a Care Plan between the

Clinical Commissioning Group (CCG) and the recipient and are funded by the NHS rather

that the Local Authority.

While we will work closely with NHS colleagues to ensure that services and support are

coordinated to secure the best possible outcomes for children and young people, Personal

Health Budgets are not the responsibility of the Local Authority.

Further information is available via the NHS England website.

2. Eligibility

Under the provisions of the Children & Families Act 2014, a parent or carer of any child or

young person aged 0-25 who has been assessed as requiring support or services relating

to their Special Educational Needs or Disability (SEND) may request that support is provided

via a Direct Payment.

If the Local Authority maintains an EHC plan, or is securing the preparation of an EHC plan,

for a child or young person it must prepare a personal budget for him or her if asked to do

so by the child's parent or the young person.

A child's parent or a young person may make a request to a local authority for a personal

budget, including a request for direct payments, while a draft EHC plan is being prepared or

while an EHC plan is being reviewed or re-assessed.

The Council for Disabled Children provides useful information on personal budgets for

parents and carers, and for young people.

Part or all of a personal budget may be delivered by means of a Direct Payment. No-one

can be forced to receive a direct payment, and direct payments may not be suitable where

services are not available locally to meet needs.

Direct payments may be made to a child’s parents, a young person or a person over

compulsory school age nominated in writing by the child’s parents or young person (“a

nominee”). Nominees may only receive direct payments if the local authority considers them

capable of managing the direct payment, and they do not lack mental capacity to consent to

receiving direct payments. There are some additional restrictions as to who may be a

nominee but these relate primarily to situations where the proposed nominee has been

convicted of a criminal offence.

If a nominee has been appointed to receive a direct payment, then the child’s parents or

young person may notify the local authority in writing if they want to withdraw or change their

nomination. In this situation, the local authority must stop making payments to the nominee

as soon as reasonably practicable and consider whether to make direct payments to an

alternative nominee if one has been proposed.

Where any special educational provision is to be secured by a direct payment, the special

educational needs and outcomes to be met by the direct payment must be set out in Section

J of the EHCP.

2.1 Who can receive the payment?

A Direct Payment can be paid to:

• young people aged 16 years or over who have a disability; or

• to the parents or carers of a child or young person who has a disability (with

appropriate consent if the young person is aged 16 or over)

• a Nominee (see section 2 “Eligibility” above)

Typically, a nominated person who is administering the payment on behalf of a child or

young person will:

• Have Parental Responsibility for the child or young person and provide them with a

substantial amount of care, or the consent of a person with such responsibility to

administer the payment;

• Give consent to the provision of a Direct Payment rather than a direct service to the

child or young person;

• Be able to manage the Direct Payment effectively and lawfully (with assistance if

necessary)

• If using a Direct Payment to employ a personal assistant, have the capacity and

accept the responsibility to effectively and lawfully manage all aspects of being an

employer - including managing payroll, taxation, insurance, background checks,

training, pensions and other matters (with assistance if necessary).

• Ensure that the use of the Direct Payment safeguards and promotes the child or

young person’s welfare, and is always used in their best interests.

• Not be subject to certain mental health and criminal justice legislation which limits the

choices they can make – more details can be found in the Special Educational Needs

(Personal Budget) Regulations 2014.

There may be occasions where we will consider a person outside these “typical qualities”

16/17 year olds who are managing their own direct payment must:

• Consent to receiving a Direct Payment

• Be able to manage direct payments without assistance or with such assistance as

may be available to them;

The Local authority will take the necessary steps to ensure appropriate consent is gained

and will require a signed agreement with the recipient of the direct payment in order to

confirm they understand and agree to the responsibilities outlined above.

Further guidelines on how Direct Payments may and may not be used can be found in

Sections 4 and 5 below.

2.2 Assessment

Prior to discussing the possibility of Direct Payment with a child, young person or family, the

practitioner should consider the following as part of their assessment and discuss the

proposed solution with either a Senior Social Worker or their Team Manager. This is to

ensure, as far as is possible that there is a consistent response from the whole team to the

provision of Direct Payments.

The decision to make a Direct Payment should be informed by an assessment of need, and

the analysis will need to consider:

• The young person, parent or carer's capacity, ability, and willingness to manage a

Direct Payment; including consideration of the support available to the intended

recipient of the direct payment to help them to manage the direct payment.

• The young person, parent or carer’s understanding of safeguarding needs and

potential risks in relation to selecting a carer for their child.

• The level and amount of support needed, with a clear and detailed rationale to

support any recommendation which would exceed the cost of a directly provided

service.

• Any alternative ways to deliver services, in order that the young person, parent or

carer can make an informed decision about whether or not to request a Direct

Payment.

• The needs of the child or young person’s, their parent(s), carers and family.

Where a direct payment is being considered for a 16 or 17-year-old who will manage it

themselves, further areas to be considered include:

• Their understanding of their own care and support needs, safety, wellbeing,

safeguarding needs, and in appropriate cases education needs

• An analysis of how they will be involved in directing and choosing how the payment

is used

The assessment should also consider how the recipient of the direct payment intends to use

the funds to meet the child or young person’s assessed needs, in line with the following

sections of this policy.

Any direct payment must only proceed following the Team Manager authorising the

assessment. Following that authorisation, it is possible that, depending on the extent of the

proposed Direct Payment, it may also be necessary to seek the approval of a Resource

Panel. A signed agreement accepting the terms of the Direct Payment scheme being

received from the parent, carer, young person, or nominee is also required prior to the direct

payment commencing.

2.3 Calculating payments

An individual assessment of the appropriate level of a Direct Payment will be made and

agreed via the appropriate Head of Service or Resource Panel, based on the thresholds

currently in place. In doing so, the panel will ensure it considers:

i. A rate of payment that covers the cost of providing a lawful wage to directly

employed personal assistants, as well as associated costs of employment including

annual leave, income tax, national insurance payments, pension contributions and a

small contingency

ii. A rate of payment which reflects the local market cost of domiciliary personal care

or overnight short breaks provision

iii. The specific costs of any specialist provision or agreed flexibility in the use of Direct

Payments

The rates outlined in (i) and (ii) above will be reviewed regularly and agreed by a formal

decision of the Director of Children’s Services.

The panel may determine that not all aspects of a personal budget are suitable for provision

by way of a Direct Payment based on the sufficiency of services in the local market.

3. How Often are Direct Payments Made?

Direct Payments are usually paid in advance into a Bank or Building Society account

specifically set up for the purpose. They are usually made as:

• a school-termly payment, particularly where the support is mostly needed during

school holidays

• a four-weekly payment for more regularly occurring needs

The payment frequency should be determined by considering the level of need, the level of

the payment, how the payment will be managed, and the type of services which are likely to

be purchased. The frequency of direct payments will be specified within the direct payment

agreement between the Local Authority and the recipient of the direct payment.

The Local Authority cannot make direct payments unless it has provided written notice to

the intended recipient of the direct payments of the name of the service user for whose

benefit the direct payment is being made, the goods or services which are to be secured

using the direct payment, the proposed amount of direct payments, any conditions attached

to how the direct payments may be spent and the dates on which the Local Authority will

make the direct payments to the recipient.

The Local Authority may only make the direct payments once the recipient of this notice has

provided their written agreement to receive the direct payments, to use them only to secure

the agreed provision, to comply with any conditions attached to the direct payment, to notify

the local authority of any relevant changes in circumstances, to hold a bank account open

for the sole purpose of managing the direct payments, to ensure no person not approved in

writing by the local authority may use the bank account, to keep and make available to the

local authority records of all monies paid in and withdrawn from the bank account.

4. What can a Direct Payment be used for?

4.1 Employing a personal assistant (PA)

Direct payments are often used to directly employ a PA to:

• take the young person/child into the community to access an activity, support

inclusion, go to a club etc

• work with the child directly within the home, to give parents and siblings a break

• stay overnight to give a short break for carers

• act as a registered childminder or child home carer (sometimes referred to as a sitting

service) for children aged under 8.

The payment agreed will also include an element for the costs arising from employment,

such as tax, national insurance, and pre-employment checks. If additional support to

manage payroll services or to act as a payment management service is required, or if

insurances related to becoming an employer of a PA are needed, these may also be

included.

4.2 Other uses for Direct Payments

A direct payment may also be used to:

• cover part or all of the cost of a service from an approved agency or self-employed

person to provide direct care to meet a child, young person, or family's needs

• meet the cost of after school clubs and holiday play schemes

• meet costs of accessing community provision, incurred due to the additional needs

of the child or young person

• support the inclusion of the child or young person in activities undertaken by their

family

• cover part or all of the cost of residential overnight breaks

With the written prior agreement of the Local Authority, a direct payment may also be used

for:

• any service which meets the assessed need for a short break

• special educational provision specified in an Education, Health and Care Plan

4.3 Direct Payments for Care and Support provided under s.17A of the Children Act

1989

If the Local Authority has decided that the needs of a disabled young person (aged 16 or

17), a disabled person with parental responsibility for a child, or a person with parental

responsibility for a disabled child call for the Local Authority to provide a service under

section 17 of the Children Act 1989 then, with that person’s consent, the Local Authority may

make direct payments to them to secure the necessary service(s).

In such cases the Local Authority is obliged to make a direct payment if:

• the person appears to the Local Authority to be capable of managing a direct payment

by himself or herself or with such assistance as may be available to them;

• the person consents to the making of a direct payment;

• the Local Authority is satisfied that the person’s need for the relevant service can be

met by securing its provision by means of a direct payment; and

• the Local Authority is satisfied that the person’s welfare will be safeguarded and

promoted by securing the provision by direct payment.

Regulations place restrictions on the use of direct payments to pay relatives who live in the

same household as the person for whose benefit the direct payment will be used (but no

restriction if the relative lives elsewhere).

If a relative lives in the same household as the person for whose benefit the direct payment

will be made, the presumption is that he or she may not be paid with the direct payment –

unless the local authority ‘is satisfied that securing the service from a family member is

necessary for promoting the welfare of the child’.

5. What may a Direct Payment not be used for?

A Direct Payment must not be used for:

• Duplication of a service already provided directly to the young person by the Local

Authority, NHS, or an education provider

• For a service that the child, young person, or their carer has not been assessed as

needing

• To employ a relative living in the same household as the child without written

agreement from the Local Authority

• To purchase full-time accommodation – defined as a period of more than 28 days as

a block, or more than 120 days in any one year

• To meet a health need that is the responsibility of the NHS, aside from where the

NHS is funding this as part of a person’s Personal Budget

• To meet a housing need

• To purchase a package of care that is not sustainable in the community

• To fund childcare costs to enable a parent to work. A range of support is available via

the Early Years Funding Team for these needs.

• To purchase any service or goods which would otherwise be unlawful, or which would

compromise the reputation of the Local Authority

In addition, where the recipient of a Direct Payment purchases the service of an individual

regarded as self-employed, no part of the Direct Payment may be used to fund their Income

Tax, National Insurance, pension, redundancy payment or other related costs of

employment.

Direct payment agreements made to secure services under s.17 of the Children Act 1989

may attach conditions, including prohibiting the recipient from securing services from

particular persons and/or requiring the recipient to provide the local authority with specific

information.

5.1 Restrictions on employment

A Direct Payment must not be used to employ someone without undertaking appropriate

checks. These include, but are not limited to:

• Disclosure and Barring Service checks

• right to work in the UK checks

• references from previous employers

• qualifications and certification relevant to any specialist care or support to be provided

5.2 Permanent accommodation and short breaks

Direct payments cannot be used to pay for permanent residential accommodation, though

they can be used for occasional short breaks, where agreed as part of a care plan, for up to

120 days in any 12-month period.

5.3 Discretionary use

Should a parent, carer or young person wish to use their direct payment in ways which are

not explicitly permitted or prohibited above, they should seek the opinion of the Children with

Disabilities Team.

The practitioner will consider the impact of the proposed use on the planned outcomes for

the child or young person in determining whether this should be permitted, and the Team

Manager may approve their response. Any decision will be made on a case by case basis.

6. Hospital Stays

When a child or young person under 16 years of age needs to go into hospital, the parent,

carer, or the person managing the Direct Payment should advise the local authority

immediately to discuss the continuation of the direct payment.

It is possible that the direct payment will continue for an agreed period, primarily to allow for

the person managing the Direct Payment to ensure that any contractual obligations around

termination of the support can be met. However, the issue of continuity of care post-

discharge may also be considered in some instances.

Consideration will be given by the Local Authority and the CCG as to how continued direct

payments might be used to meet non-health needs during an extended hospital stay, or to

ensure that the employment arrangements can be maintained. For example, the child or

young person may wish to be taken to appointments or activities during their stay. However,

it is important that any input from PAs is provided in such a way that it does not interfere

with medical treatment.

In instances where the authorised or nominated person receiving the payment on behalf of

the child or young person requires hospital treatment, the Local Authority must conduct an

urgent review to ensure the child or young person continues to receive the care and support

they need. This might include consideration as to whether the duties of the usual recipient

of the direct payment can be carried out by someone else, or through provision of short-term

local authority arranged care and support.

7. Safeguarding

If the Local Authority considers provision of a Direct Payment may pose a risk to a child or

young person’s wellbeing or safety, the Local Authority may not agree to meet needs by

making a Direct Payment. The rationale for this will be clearly explained and support

provided by a social worker to ensure the family understand the worries.

7.1 Employees

This could for example be where a parent or carer wishes to employ someone who has

refused to undergo appropriate checks, or where such checks have raised areas of concern.

It may also include situations where a parent or carer wishes to use the payment to purchase

domiciliary care services from agencies which are not registered with the Care Quality

Commission.

In such circumstances, the practitioner should discuss with the family the important part that

checks and references play in ensuring that the person employed is wholly suitable for

caring for the individual child/young person. Parents, carers, and young people should be

actively encouraged to ensure all such checks are undertaken.

If, following discussion, the parent, carer, or young person does not want to take up a DBS

check on an employee, the situation should be discussed with the Children with Disabilities

Team Manager.

Use of agencies or self-employed staff to provide personal care.

Any agency used by the family to provide personal care services delivered to a child or

young person must be registered with the Care Quality Commission (CQC) to provide

domiciliary services to children. In such cases, the agency is fully responsible for

undertaking all checks on its employees and should confirm this in its agreement or contract

with the Direct Payment recipient.

Where the direct payment recipient purchases a service from a self-employed individual,

that individual will be responsible for their own tax, national insurance, and public liability

insurance. They should also be prepared to provide any requested evidence of background

or status checks to the Direct Payment recipient on request.

8. Additional Considerations

Direct Payments allow parents and young people greater choice, flexibility and control, to

employ their own workers at times convenient to them and in the way they wish, to provide

services to meet their individual needs. However, there are a range of circumstances which

may arise which require further consideration.

8.1 Employing relatives as carers/personal assistants

8.1.1 Relatives who live with the child or young person at home

Where a parent, carer or other relative such as spouse or sibling, is resident at the same

address as the child or young person, it is not normally permissible for them to be employed

as a PA via a Direct Payment.

In exceptional circumstances, for example to prevent a breakdown in care arrangements for

a temporary period, the Local Authority may determine that such an arrangement would be

appropriate. This will be confirmed in writing by the Children with Disabilities Team Manager,

including any additional arrangements for safeguarding, managing the payment or review of

the situation.

Where a parent, carer, or young person over 16 who manages their own payment begins a

personal relationship with someone who is currently employed by them as a Personal

Assistant it is important that this is disclosed immediately in writing to the Children with

Disabilities Team. Further discussion will be required to ensure that the existing

arrangement remains suitable, and to explore the potential for change in family dynamics.

Failure to disclose a change of circumstances of this nature could result in a need for urgent

review and possible termination of the Direct Payment arrangement.

8.1.2 Relatives who do not live with the child or young person at home

In most cases, other relatives may be employed as PAs via a Direct Payment, but it is

important that those administering payments take account of the following points in doing

so:

• Relatives must be employed formally as with any other carer, subject to the same

checks and issued with a contract of employment

• Payments to relatives will be monitored in exactly the same way and the parent will

be expected to keep records as with other employees

• All the responsibilities of a responsible employer still fall to the parent/carer including

liability insurance, tax and national insurance etc.

8.2 Transferring between a Direct Payment and a direct service

There may be situations where a parent, carer or young person who currently receives

directly provided services wishes to transfer to receipt of a Direct Payment, or vice versa.

Assuming there is no request for an increase in the level of services, this transfer should

usually be able to take place without the need for re-assessment.

Any such change will need to be agreed at a child in need review meeting, specially

convened if necessary. In all cases, the availability and sufficiency of services in the local

area which would meet needs should be carefully considered, alongside the need for

specifically commissioned services, along with the usual considerations for eligibility for

services or Direct Payments.

In cases where an unexpected change of circumstances occurs, it may be necessary for the

Local Authority to urgently modify the provision in place to ensure the safety and wellbeing

of a child or young person.

8.3 Transfer to Adult Services

When a child in respect of whom direct payments are being made becomes a young person,

the local authority must take reasonable steps to ascertain whether the young person

consents to receiving direct payments.

If the young person notifies the local authority that they wish to receive direct payments,

then subject to the eligibility criteria being met, the local authority must make direct

payments. The young person may request to their parent or nominee continuing to receive

the direct payment on their behalf.

If the young person notifies the local authority in writing that they do not consent to the

making of direct payments, the local authority will stop making direct payments as soon as

reasonably practicable.

While the Care Act 2014 provides a similar right to request a Direct Payment, the process

of assessing eligible care and support needs differs from that for children and young people,

as do many of the arrangements around funding health and further education provision.

Colleagues in schools will begin to consider preparation for adulthood at around age 14,

often at the Annual Review in Year 9 for those children with an EHCP. Continued

consideration will take place as the transfer approaches, and it may be determined that the

Adult Transitions Team needs to assess any ongoing care needs beyond the age of 18. This

including consideration of ongoing eligibility for Direct Payments and a new direct payment

agreement will need to be signed between the recipient and the local authority.

Parents and carers, or young people receiving a Direct Payment who are concerned about

transition to adult services should contact the Children with Disabilities Team.

8.4 Recruiting, training, and employing Personal Assistants

Should a recipient of a Direct Payment wish to directly employ personal assistants, they will

need to consider a range of additional factors. The Direct Payment Support Team will

support new users of Direct Payments with these matters, which include:

Where to advertise for support?

• local job websites and newspapers are often still the best places to reach people

interested in care work.

• You may also wish to consider the Personal Assistant Register operated by North

Somerset.

• While social media can reach many people quickly, it is important that privacy and

confidentiality are not breached, and that any potential safeguarding concerns are

considered carefully.

What training may be required?

• Will your employees need to be trained to manage specific needs, or use equipment

in your home?

• Will your employees be aware of their responsibility to keep your personal information

secure and confidential, or how to report any safeguarding concerns they have?

Will your employees be safe?

• Have you assessed any potential risks in the work they will undertake, or your home

environment?

• Have you got sufficient Employers Liability Insurance cover in case an employee has

an accident?

• Have you ensured you have enough staff so they are not working long hours a day

and/or many hours a week over and above an average working week.

Are your employment and financial processes robust?

• Are you aware of all potential tax, national insurance, and pension liabilities for your

employees?

• Have you provided your employees with a contract of employment?

• Are you paying an hourly rate which allows you to cover these additional costs from

your agreed Direct Payment amount?

• Have you a system in place for keeping accurate records of time work, amounts paid

and any disciplinary matters which may arise?

Have you planned for contingencies?

• Do you have a plan in place for times that your employees are on holiday or unwell?

9. Roles and responsibilities

9.1 The recipient of the Direct Payment

The Direct Payment recipient, or appointed person will sign a Direct Payment Agreement

with the Local Authority prior to payments commencing. This will confirm that they are aware

of and fully accept their responsibilities.

The recipient of the payment, or their appointed person, is responsible for:

• Maintaining a separate bank or building society account solely for the use of the

Direct Payment

• Keeping records of expenditure, receipts, and time sheets, and providing these to the

Local Authority along with statements of account, to facilitate quarterly financial audits

• Providing any directly employed PAs with a contract of employment which is

compatible with current employment law

• Paying Income Tax and National Insurance payments, holiday pay and sick pay in

line with current employment Law

• Determining employees’ entitlement to annual leave, pension enrolment and

redundancy payments

• Keeping employment records, including time sheets, disciplinary matters, training

received

• Repayment of any excess unused funds on the request of the Local Authority

• Notifying the Local Authority promptly of any change in needs, services provided or

their own ability to manage the Direct Payment

9.2 The Children with Disabilities Team

The Local Authority Children with Disabilities Team will:

• Undertake statutory assessments and reviews promptly, including:

o responding to requests for assessment within 10 working days

o visiting children, young people, and their families every 12 weeks

o carrying out reviews of Direct Payment arrangements twice each year

• Notify all children, young people, or parents of their right to request a Direct Payment

• To work with the Direct Payments Support Team to support children, parents, and

carers to understand the expectations and responsibilities in receiving a Direct

Payment in relation to ensuring the needs of the child or young person are met

• Consider any changes in needs or circumstances and agreeing any changes in the

agreement in writing, undertaking a child in need review if necessary

• To work with the Direct Payments Support Team to support the child, young person,

or parent with finding appropriate services to purchase, notifying the Children’s

Commissioning Team of any gaps or insufficiencies noted

9.3 Payroll Services and Brokers

Given the complexities of managing a Direct Payment to employ PAs, the parent, carer, or

young person may determine that they wish to employ a Payroll Service or Broker to manage

aspects of their Direct Payment. This may include taxation, insurance, time sheet

management, annual leave entitlement or pensions for example.

The Direct Payments Support Team can provide advice and support on deciding which

service may be suitable during the setup of a new Direct Payment. Should a Payroll provider

be required it may be possible to provide the additional costs via the Direct Payment.

9.4 The Direct Payments Support Team

Where a new Direct Payment is agreed for a child or young person, the Direct Payments

Support Team (DPST) will provide guidance and assistance to ensure the set-up process

runs smoothly, including advice on employing Personal Assistants and financial monitoring.

This may include:

• Offering advice and assistance with the recruitment, selection, and retention of

personal assistant staff

• Advice and support to ensure understanding of how to keep accurate records to

complete the required regular financial returns

• Giving support and guidance with the elements of managing a personal assistant,

being an employer, accessing suitable insurance, payroll providers, and personnel

records

• Support children, parents, and carers to understand the expectations and their

responsibilities in respect of directly employed PAs under current employment law

9.5 The Local Authority Finance Team (Payments)

The Local Authority Finance Team (Payments) will ensure that:

• Agreed payments are made promptly and correctly, at the agreed frequency

• Quarterly audits are undertaken and processed promptly, with outcomes notified to

the Direct Payment recipient, the Direct Payments Support Team and the Children

with Disabilities Team

• Any excess balances in Direct Payment accounts are recovered promptly, in

accordance with the relevant Regulations

• Any issues or irregularities in management of the Direct Payment are notified

promptly to the Children with Disabilities Team to facilitate a review of the

arrangement

10. Decisions not to make Direct Payments

Where the Local Authority decides not to make Direct Payments it must inform the parent,

carer or young person of its decision and rationale in writing. This communication must

explain the right to request a review of the decision. If the Local Authority is asked to review

its decision then it must consider any representations made by the child's parent or the

young person and inform in writing the child's parent or the young person of the outcome of

the review, giving reasons.

11. Monitoring and review of Direct Payments

The Local Authority will carefully monitor and review the use of Direct Payments by the

recipient to ensure that they are meeting needs effectively, promoting the wellbeing, safety

and outcomes of the child or young person, and being used responsibly within the Direct

Payment agreement.

11.1 Frequency of reviews

The Direct Payment arrangement will be reviewed:

• By the DPST within the first three months of set-up, to ensure the recipient has all

the support necessary to use the payment effectively

• By the Children with Disabilities Team six months after setting up, and twice each

year, to ensure the arrangement is meeting the needs of the child or young person

and their carers

• As part of the EHCP Annual Review process where applicable

11.2 Scope of reviews

When carrying out a review, the Local Authority must consider whether:

it is appropriate to continue to secure the agreed provision by means of a Direct Payment;

• the child or young person’s needs are being met, or could now be met by universal

services, meaning the Direct Payment is no longer required

• the Direct Payments have been used effectively

• there are sufficient local services available for purchase via the Direct Payment to

meet the needs of the child or young person, or their carer

• the amount of direct payments continues to be sufficient to secure the agreed

provision

• the recipient has complied with their obligations on the use of the Direct Payment, or

whether any support may be required to do so

11.3 Outcome of reviews

Following a review, the Local Authority may determine that it is necessary to:

• substitute the person receiving the Direct Payments with a nominee or broker as

appropriate to secure correct management of the funds; or

• increase, maintain or reduce the amount of Direct Payments to meet changing needs;

• require the recipient to comply with either or both of the following conditions:

o Not to secure a service from a particular person or provider

o To provide such information as the Local Authority considers necessary; or

• to stop making Direct Payments, and to arrange direct provision of services to meet

needs.

11.4 Notification of outcomes

Any decision to alter the Direct Payment agreement will be notified in writing to the parent,

carer or young person receiving the payment, along with the reasons for making the change.

If the outcome of a review is that the local authority has decided to reduce the amount of the

direct payment, the local authority must give reasonable notice to the recipient setting out

its reasons for its decision. If asked to reconsider its decision, the Local Authority must do

so. This will require the Local Authority to consider representations made by the recipient

(and where the recipient is a nominee, any representations made by the child's parent or

the young person) and must then provide written reasons for its decision.

For each occasion on which the Local Authority decides to reduce the amount of a direct

payment it can be asked to reconsider its decision only once.

The Local Authority may reduce direct payments following reasonable notice even if a

request for reconsideration has been made.

11.5 Quarterly Financial Audits

All direct payments are subject to a quarterly audit to check that the funds are being used

appropriately, that accurate records are being kept, and that the account is being managed

effectively and is in good order. These Audits are undertaken by Liberata, on behalf of the

Local Authority.

Direct Payment recipients will receive support from DPST with setting up recording

processes to enable them to manage the audit process effectively and efficiently.

Should concerns be identified during the audit process, these will initially be flagged with the

Direct Payments Support Team who will liaise with the Children with Disabilities Team to

ensure a review the direct payment arrangement takes place. Actions which may follow if

the situation cannot be rectified are detailed in Section 12 below.

12. Changes to the Direct Payment Agreement

12.1 Reducing the Amount of Direct Payments

Where the Local Authority determines that there is a need to reduce the amount of Direct

Payments, it must provide reasonable written notice (where possible this will usually be four

weeks) to the recipient and must set out in the notice the reasons for its decision. These

reasons will usually be determined by way of a review of the Direct Payment (see section

11) and will carefully balance the impact of reducing the payment on the wellbeing and needs

of the child or young person.

The Local Authority may not reduce the Direct Payments in such a way that costs already

incurred for services provided cannot be met by the recipient.

A particular instalment of a Direct Payment may be reduced without notice if it is determined

that the recipient has a higher than expected balance in their account. For example, if a

payment would normally be £500 but the recipient has a current balance of £200, it is

appropriate for the next payment to be adjusted to £300 to reflect this, any exceptions to this

must be agreed in advance by the Children with Disabilities Team, notified to the Finance

team and carefully recorded.

If a Direct Payment recipient holds a high balance which is unlikely to be used in a

reasonable period, the Local Authority may recover the full balance.

12.2 Repayment and Recovery of Direct Payments

The Local Authority may require the recipient to repay part or all of the direct payments

account balance held, where:

• The circumstances of the child or young person have changed in a manner which

has an impact on the appropriateness of the agreed provision

• All or part of the Direct Payments have not been used to secure the agreed provision

• Conditions attached to the direct payment’s use have not been complied with

• Theft, fraud, or another offence may have occurred in connection with the Direct

Payment

• The capacity or legal standing of the person receiving the Direct Payment on behalf

of the child or young person has changed

• The personal relationship between the recipient of the Direct Payment and an

employee has changed and following review, it is no longer appropriate to provide

support via a Direct Payment

• The child or young person has died, has moved into long-term residential or nursing

provision, has moved permanently to another local authority area or has transferred

to adult services and will no longer be receiving a Direct Payment

• The balance of the direct payment is considered high, or the service user is not

reasonably likely to use the current balance within a reasonable time.

Notice will be provided in writing to the recipient or nominee, setting out the reasons for the

decision, the amount to be repaid and a reasonable timescale within which the amount must

be repaid.

The Local Authority may only seek repayment of any portion of the Direct Payments that

has not already been spent on the agreed provision.

12.3 Ceasing Direct Payments

The Local Authority will stop making Direct Payments if:

• the recipient has notified the Local Authority in writing that they withdraw their consent

to receive the Direct Payments, or to the terms of the Direct Payments agreement

• Having taken reasonable steps to ascertain whether the young person consents to

Direct Payments the Local Authority has not been able to determine this

• By change of legal status, relationship, or capacity the recipient ceases to be a person

to whom a Direct Payments may be made

• Following an appropriate review, it appears to the Local Authority that:

o The recipient is not using the payment to secure the agreed provision; or:

o The agreed provision can no longer be secured by means of a Direct Payment

• At any point the Local Authority becomes aware that the making of Direct Payments

relating to special educational provision is:

o Having an adverse impact on other services which the Local Authority provides

or arranges for children and young people with an education, Health and Care

Plan which the authority maintains; or

o No longer compatible with the authority’s efficient use of its resources.

Where the Local Authority decides to stop making Direct Payments, the Local Authority must

first give notice in writing to the recipient setting out the reasons for its decision.

The local authority must reconsider its decision where requested to do so by the recipient.

When conducting its reconsideration, the local authority must consider the representations

made by the recipient (and where the recipient is a nominee, any representations made by

the child's parent or young person) and must then provide written reasons of its decision

following the reconsideration to the recipient (and to the child's parent or young person,

where the recipient is a nominee).

The local authority is not required to undertake more than one reconsideration of its decision.

12.4 Funding additional provision from employees or providers

Where a child, young person, parent, or carer wishes to purchase additional services beyond

those agreed in the care plan from providers with whom they work, they will be wholly

responsible for any additional costs incurred. They should first seek agreement from the

Children with Disabilities Team in writing but is acknowledged that in urgent situations this

may not be possible e.g “admission to hospital and extra support required and or requested

from the Hospital setting”. However, the recipient of the Direct Payment should undertake

to inform the team as soon as possible after the event.

For example, should a parent whose child receives 10 hours of personal care from a PA

they employ decide to request an additional 5 hours of care beyond that agreed in the care

plan and Direct Payment agreement, they should transfer funds to cover the full cost of this

additional service, including any tax and insurance liabilities, into their direct payment

account.

Careful records should be kept of any such arrangement to prevent issues arising when

quarterly audits take place.

The Local Authority will not provide additional funds should direct payment recipients use

the balance of their account to purchase additional services without agreement or agree to

pay a higher rate of pay to any directly employed staff without prior approval from the

Children with Disabilities Team.

12.5 Right to reconsideration

In all of the situations outlined in this section, the Local Authority must provide the

opportunity for the recipient to request reconsideration of the decision but is not required to

undertake more than one reconsideration of a decision. Any further concerns should be

managed via the Corporate Complaints process.

When conducting its reconsideration, the Local Authority must consider any representations

made by the recipient (and where the recipient is a nominee, any representations made by

the child’s parent, carer or the young person) and must then provide written reasons to the

recipient of the decision following the reconsideration. The Local Authority may reduce

Direct Payments following reasonable notice even though a request for reconsideration has

been made.

Statutory rights of appeal to the First-Tier Tribunal or to complain to the Local Government

and Social Care ombudsman are not affected by this policy.

13. Further support, advice, and guidance

We recognise that deciding to receive a Direct Payment and becoming an employer is a

huge decision, and that anyone considering this may want to talk to others who have taken

the step, or to get further advice. The resource below may help:

• Supportive Parents SENDIAS Service – providing local, independent advice,

guidance, support and advocacy for parents and carers navigating the SEN process,

included education, health and care matters

• North Somerset Parent Carers Working Together – a local forum for parents and

carers of children with SEND which advocates for their rights and needs, and works

with the Local Authority and Health services to support improvements

• The Council for Disabled Children – providing high quality training and resources for

young people, parents. carers and professionals

• North Somerset Local Offer – a directory of local information, advice and support

including short breaks, care services and activities