Direct payments - insufficient funding to meet needs as employer
As a Welfare Benefits caseworker this is not an area I have much experience of. A friend has asked me to help with yet another battle involving funding (one of many she has had over the years). I asked her to draft a summary of what was happening rather than attempt it myself and have copied below. Would be grateful for any thoughts. She lives in the Bristol area
I am a disabled woman, a full-time powerchair user receiving 24/7 assistance from PAs. This is funded by Direct Payments (DP), and has been in place for 28 years. Initially this was Joint funded, but now Adult Social Care funded.
Last August 2018 I requested an increase in my DPs budget (the last review was 2015) I could foresee a shortfall occurring around December 2018/January 2019. This was due to the following which had arisen over a period of time:
• Introduction and subsequent increase in pensions for employees;
• Fluctuations in staffing - fewer staff doing more hours = increased NI contributions; more staff doing less hours = a reduction in NI contributions
• Needing to maintain a competitive hourly rate to attract and retain staff
• Needing to pay a competitive enhanced rate for public holidays including Christmas/New Year to ensure adequate cover
Since then I have been subjected to approximately 7 Care needs assessments, (each of which are desperately intrusive, humiliating and harassing); these are then put before panel either formally (which I am not allowed to attend), or via the computer system. Each time, a decision is deferred either in lieu of more information that is requested, or another professional opinion is sought. When this is provided, a different line of information is then requested or the professional report/opinion is rebuffed and so it continues and a decision is never made. And on it goes.
For the last 6 months I have been unable to pay my staff the annual leave I owe them, and have repeatedly requested a one-off payment towards this cost but this has been rejected until a full care needs assessment is completed. Despite my continued attempts to fulfil this requirement, panel hearings are then delayed and put back prolonging the stress and lack of funds I am having to deal with.
In a few weeks it will be 12 months since I first made my request, this alone would seem wholly unreasonable and driving me further into financial debt.
It is my belief that I am being discriminated against for reasons based on financial cost rather than personal care need.
I cannot find any legal help and there is no legal aid available to me in any case.
Hi Maggie - a search on advicelocal produces a list of organisations that can help with disability and social care issues in Bristol.
I’d suggest starting with Bristol Law Centre as I know they have solicitors who can help in discrimination cases - and if they can’t help themselves they should have a good idea who might be able to.[ Edited: 22 Aug 2019 at 01:17 pm by shawn mach ]
Thanks Daphne but would this be covered by legal aid?
I’m afraid I don’t know the answer to that Maggie - best would be to contact the law centre to check whether she needs to be covered by legal aid, and if so, whether she is. I’m not sure of their policy for taking on cases but I’m sure they would at the very least give some initial advice.
We cover these in our factsheet Personal budgets and direct payments in social care at section 8.
In particular, note at section 8.6 we state:
If you decide to have direct payments, your personal budget amount should reflect the real local costs of purchasing your care applying market value principles.
so she certainly seems to have a good case for higher DP’s based on the bullets listed, although note the next section where we state this can be balanced against budgetary constraints of the local authority.
Section 8.11 also notes that DP arrangements should be subject to annual reviews to ensure everything is still working as it should be.
As this has dragged on for so long, I’d raise a formal complaint using the local authorities complaints procedure asking for an expedited decision about the amount of the DP.
You can also contact Disability Law Service or Disability Rights UK Personal Budget helpline and community care disputes are within scope for legal aid, so you could try to find a solicitor to instruct as well.
Unfortunately she has exhausted the LA’s complaints procedure and I’m sure there was a mention of the ombudsman (without success). It feels like delaying tactics all round and hugely stressful for her
Thanks for all the input will forward to her
You may have already tried this and I am not sure how effective they are but…
My understanding is that WECIL have a dedicated team to support those who receive direct payments. Try this link: https://www.wecil.co.uk/support-info/direct-payments-support/ for further info or call them on the number you will find there. Looks like they run an advocacy service as part of their support
Your case may have gone beyond their expertise but they should be able to offer guidance etc.
Like I said not sure whether this has gone beyond them but might be a useful starting point.
Find Community Care legal advice. If the complaints process has already been exhausted you may need to consider Judicial Review (depending what arguments, if any? the LA have put forward so far).
There is a failure to act by the LA leaving you, as an employer, in a difficult position as you still have liability for your employees and their payments.
If it reaches the point where any of your employees take legal action against you I would be joining the LA into the case as having liability alongside yourself as you are being prevented from honouring your legal liabilities.