The case of Lumb v NHS Humber and North Yorkshire ICB & Anor [2024] EWCOP 57 (T2) relates to a public health budget and whether the management of this falls within the usual authorisations for a property and affairs deputy.
The background of the matter
This matter revolved around SBB – a 31 year old man who has complex needs associated with learning disability and autistic spectrum disorder. The applicant, Daniel Lumb, was his deputy for property and affairs.
Daniel sought to be discharged as SBB’s deputy on the basis that a deputy was not needed, because SBB had no capital assets (only statutory benefits).
NHS Humber and North Yorkshire ICB (the ICB) contested this on the basis that SBB was in receipt of direct payments under a personal health budget. A deputy was therefore required to manage these payments.
What is a personal health budget?
A personal health budget is an amount of money which is provided to a patient in lieu of their regular NHS care (pursuant to the National Health Service (Direct Payments) Regulations 2013). The patient and their healthcare professional agree the desired health outcome and the patient, with support, is able to plan how to use the money available to meet those needs.
A direct payment is where money is paid under this budget directly to the patient, so they can manage the funds themselves.
Was the personal health budget part of SBB’s property and affairs?
The court decided that direct payments under a personal health budget were not SBB’s property. This is because the payments could not be used other than to expend the agreed care plan – and even if used properly, repayments obligations can arise.
However, because receipt of a direct payment created obligations in respect of them, it was found that direct payments do come within “and affairs” as envisaged by the Mental Capacity Act 2005.
Are the standard authorisations of a property and affairs deputy sufficient to act as a “representative” for a personal health budget?
The court decided that a “representative” for the purposes of a personal health budget must be able to standard in the shoes of the patient, and so must be able to “plan” care arrangements – “as in ‘devise’ them not simply make administrative arrangements to pay for them”.
As such, this role fell outside the usual role of a property and affairs deputy.
Can a property and affairs deputy be appointed by a health body as a “representative” for the purposes of a personal health budget?
The court decided that if the deputy consented then they could be appointed, but that would not alter the terms of the deputyship itself. If the deputy agreed to act as representative, it would be outside the terms of the deputyship. Crucially, this means a deputy would not be able to recover their fees, nor could they use the direct payments to pay their own fees.
It is therefore unlikely a professional deputy would agree to this in the absence of an agreed financial arrangement for their costs from the health body.
Could a deputy act as a “nominee” for the purposes of a personal health budget?
The court found that the regulatory requirements of a nominee of a personal care budget would still include obtaining and providing information regarding SBB’s care plan. As such, the regulatory requirements of a nominee do not fit within the standard authorisations of the deputy.
Could the Court of Protection specifically authorise a deputy to manage direct payments of a personal health budget?
The court found that the court could authorise a deputy to manage direct payments, but it is a separate question as to whether they should do so.
In considering whether the court should authorise a deputy to manage direct payments, it will be relevant as to whether the deputy is willing to be appointed. In this matter, the deputy was not willing to be appointed and therefore the court did not make an order to this effect.
Who else could act in this role?
The court highlighted that a case manager would be able to act as a representative for SBB in this circumstance – and this could be agreed by consent without the need for a court order.
Our content explained
Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.