Table talk: commissioners beware, direct payments for funding care packages do have limitations

Court of Protection finds financial and care management oversight arrangements for managing a personal health budget in the best interests of a young man.

A new decision from the CoP will be of interest to local clinical commissioning groups managing personal health budgets as it raises important issues in relation to getting the financial and “care management oversight” right.

The court found that a brokerage arrangement for delivering an extensive package of care was in the best interests of a young man (P) who lacked capacity to make decisions about where he should live, with whom he should live and the package of care and clinical treatment he required.

The context

P is 24 and has autism with learning disabilities and lives at home with his parents who are the first and second respondents. He was assessed as being eligible for NHS continuing healthcare funding by Harrow CCG in November 2013. In July 2014 when P’s school attendance came to an abrupt end, the CCG agreed to pay P’s parents £2,800 per week to care for their son. They also agreed to pay for additional carers to a maximum of 112 hours per week. Under the arrangement, payments of £4,816 per week were made to P’s parents by the CCG, with the parents organising care and payments to the carers, including themselves. This was an interim, emergency measure.

Harrow CCG commenced proceedings in August 2015 because:

  • the relationship between the CCG and P’s family had broken down;
  • there were no clinicians involved in P’s care and the CCG has no oversight of the care provided or the outcomes for P;
  • the financial arrangements could not continue as they were not in accordance with the NHS (Direct Payments) Regulations 2013; and
  • P’s parents had been reluctant to consider anything other than direct payment.

The CCG applied for orders to provide for review of P’s capacity, needs, care plan and options for residence and care.

The CCG reached a decision that it would not continue to fund the proposed package of care by direct payments because "an additional layer of CCG commissioned clinical governance and oversight is an essential and non-negotiable part of any future care package." The CCG wished to fund a package of care for P on the same basis as the interim arrangement, but with additional clinical input and oversight and financial and care management oversight via a third party brokerage organisation. The CCG’s proposal was supported by the official solicitor, however, the first and second Respondents objected to the care package and, in particular, to the use of a third party broker.

HHJ Hilder noted in her judgment that:

“Within these proceedings, it is apparent that IPJ and IJJ have been offered as much opportunity for discussion and contribution as in reality they were willing to take up. Appropriate efforts to facilitate concord between the parties have been made, including even line by line consideration of the PBSP at the last hearing and today inviting (and being given) from the CCG explicit assurances of their intentions in respect of collaborative working with P's family.”

The outcome

It was found that the CCG’s brokerage arrangements would provide the necessary transparency, opportunity for review and accountability of the proposed care package and that this was directly in P’s best interests. The court was entirely “satisfied that the care arrangements proposed offer[ed] extensive support for P, calibrated to meet his needs as far as they have been ascertained after multi-disciplinary assessment, and offering scope for further provision as issues arise.”

Comment

This case is particularly interesting for three reasons:

  • First, because of what the court says on governance and oversight being an essential part of a CCG funded personal health budget.
  • Second, because it exposes the limitations on direct payments as an option for funding care packages.
  • Third, because there is a message and a reminder for those in receipt of direct payments for the need for co-operation and developing a flexible relationship with CCGs.

The court was entirely supportive of the CCG’s approach commenting that mechanisms of transparency and governance were reasonable expectations of the CCG:

HHJ Hilder said, “It seems to me unarguable that public funds not far short of £5000 per week should be administered in any way other than on an open, transparent and impartial basis; and that is not the case if P’s parents both manage such funds and use a large part of it to pay themselves, without any system of oversight. It is right and proper that such expenditure should be transparent, traceable and demonstrably well-founded. The CCG's unwillingness to continue financial arrangements which were adopted as an interim response to a crisis situation is in my judgment entirely understandable.

The CCG repeatedly emphasised its wish to work collaboratively with P’s parents and for the process not to be adversarial.

Mills & Reeve represented Harrow CCG. You can read the judgment here.

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