1. 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.

2. 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

3. Statutory scheme
Sections 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).

4. 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)

5. 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’.

6. 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 pre-payment cards?
No – or at least probably not
Stat Guidance para – prepaid cards ‘should not be provided as the only option to take a direct payment.
Would need good reason to depart from guidance

7. Issues (4) Other questions?
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?

8. 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?

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