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Direct Payments : Paying A Family Member To Care ? NO ... But The Jury Is Out And Showing No Sign Of Returning ! - Page 7 - Carers UK Forum

Direct Payments : Paying A Family Member To Care ? NO ... But The Jury Is Out And Showing No Sign Of Returning !

Share information, support and advice on all aspects of caring.
68 posts
The 2014 Care Act Statutory Guidance makes it very cler that parents can be paid.


Discussed , at length , earlier in this thread , BB ... page 1 ... and subsequently when we have delved a little deeper.

Paid ... as in wages ... employer / employee relationship ?

A conundrum without a clear end ... either way ... clashes with Employment Law ... which takes precedence ?

The ruling in the John McDermott case indicates Employment Law does.
Things need to be set up properly, with a client of SSD being given the opportunity of having an independent fund manager, who then employs the family member. There are Ombudsman's decisions which are relevant too, one saying a parent can have more than the statutory maximum working hours of 48, to care for their son.

The effect on benefits is an entirely different issue, I only get my pension so I wouldn't be affected in any other way. In 2018 I was left to care for M for 97 days out of a total year yet received nothing. Slavery.
one saying a parent can have more than the statutory maximum working hours of 48,


Yep ... discussed at length earlier in this thread.

Question then which remains unanswered to this day :

On basis did said Ombudsman base his / her decision ?

( There are NO legal precedents ! )

Clear breach of Employment Law for starters ... 48 hour working week.

There again , CARERS are not governed by that ... but EMPLOYEES are.

Seems to suggest a hybrid ???

What is unknown is have the DWP / HM Revenue and Customs taken an interest in that Ruling ?

Hence the conundrum ?
M has fairly high care needs, his total care package amounts to about £900 a week.

If he had Direct Payments he would be able to vary who cares for him, and most importantly of all, get to do what he wants to do, travel, work on steam engines, look at steam engines, go to steam rallies every summer weekend.

He has female care staff, who know nothing about steam engines, and last time they took him to a rally it was so bad he said he never wanted to go with one of them ever again.
Direct Payments would enable him to employ male staff to take him to rallies - I have two in mind, one a retired teacher who owns an engine, the other a retired steam boiler inspector, ex RN engineer. Both have known M since he was little.
Promised referrals to the independent fund service haven't happened.
So M wants to come home to play with his engine, or go to rallies. I'm no engineer, but his brother is and would supervise (but can't be paid due to his contract of employment).
I'm quite able to support M otherwise, in fact I've had 2 awards from the National Traction Engine Trust, and of course I know all the local engines and their owners as I've been part of the local "gang" since I was 19 years old.
I don't think it's right that M 's carers can get paid £15 an hour to do nothing, while I get nothing so M can do what he wants. Soon we will be going away together, in search of steam, that will be more than 168 hours a week. I'd settle happily for 48!
With any luck BB , once the powers to be sit down to work out what will be in that " Green Paper " , issues such as that one will be addressed.

( That's assuming someone , somewhere , will ask US for our wish list ? )


There again , the whole concept of Direct Payments seemed to come out of nowhere back in 1997 ( Their parent being the Community Care ( Direct Payments ) Act of 1996.)

Little thought as be given to them since then ... 23 years ago.
I've been fighting the social work since June 2018 to change payments made from Council to Agency to Council to assessed client (direct payment) option 1.

They continue to refuse to change the option, currently on stage 3 complaints process to the ombudsman. At Stage 2 the outcome was by missing an appointment they close the case completely and deemed myself to refuse to engage in social services, binned my complaints, denied they received paperwork and also falsley claim I'm refusing to do a new assessment after showing them legislation that new assessment are not required if changing from 1 option to another and the initial assessment has already been agreed and passed.

Have asked the ombudsman to step in an change options without a new assessment and also to backdate payments since June 2018 approx £16k with £300 compensation for distress and time wasting. I sent ombudsman SAR copies of my contacts phone, email and letters to the social work as evidence I was engaging.

If the ombudsman fails I'm considering legal action and if that fails I will move address and reapply to a different council who will meet our needs. I heard some smaller councils are fair and reasonable and large big city councils are strict and corrupt.
This is my story on this subject and CHC. Been trying to sort it out since 2017 and the Council had disallowed any complaint about it. Health have done the same.

.EXPLANATORY MEMORANDUM TO THE CARE AND SUPPORT (DIRECT PAYMENTS) REGULATIONS 2014 2014 No. 2871

7.4. The 2009 regulations provide that direct payments cannot be used to pay for care from close family members living in the same household, unless the local authority determines this is necessary to meet needs.

This instrument retains this provision, but introduces a related provision to allow a direct payments to be used to pay a close family member living in the same household for administration and management support, or services for the purpose of enabling the person to whom direct payments are made to comply with their legal obligations, such as duties owed to an employee (if they employ, for example a personal assistant), or to monitor their receipt and expenditure of the direct payments. Again, this is only allowed if the local authority considers it is necessary to pay a close family member to provide such services. This change is intended to allow local authorities to make managing direct payments less onerous by allowing a nominal payment to be paid to a family carer, similar to the way direct payment holders can pay agencies to manage aspects of the payment on their behalf. This can be helpful where a person may have multiple, complex needs and may have several different care workers to arrange and manage.

Above is from The Care Act. and that is an Act of Law that has been decided, so therefore it is a law of the land named The Care Act. It is what the Council and Nhs should adhere to.

The Council via Social services adult team for complex needs have totally refused to acknowledge the wording of the Care Act regarding direct payments in my son’s case. They have ignored exceptional circumstances and also repeatedly quoted ‘there is no legislation in place’ that says they can look into allowing carers to be paid for care the Authority is offering via direct payments. It is difficult to get paid carers to care for people with complex needs, especially adults.

The Council also insists on not paying any additional amounts for night care and refuses to allow more than £9.00 an hour, which makes it increasingly difficult to able to hire staff who are willing to give up their whole night up to care. More especially is the case where the person is requiring numerous and continuous care throughout the night. It also makes it impossible to find an agency to do it as they charge more than double what the Council allocates as a direct payment.

Agencies also charge more than £9.00 for an hourly day rate, so the direct payment is not at all flexible. Even less flexible if the care is calculated via direct payments, and is in place for 117 aftercare.

117 aftercare is what professionals determine is necessary for care, as a result of discharge from a hospital after Section 3 of the Mental Health Act. has been applied, to a long hospital stay.

The flexibility for direct payments and finding staff for complex cases is not in place in order to easily gain consistency of staff, as rarely do staff stay long when the amount of pay is £9.00 an hour. Especially if the care has to be provided constantly for multiple needs and for all aspects of care for someone like my son who needs constant 24 hr care.

That care consists of multiple tasks that are continuous.

The other aspect of this, in my son’s case, is carer’s having to deal with complex partial seizures which are also known as Temporal lobe epilepsy.

Apparently, complex partial seizures is the new term for Temporal lobe epilepsy, so I’m told. I’m not so sure these aren’t 2 simular but separate terms used mainly for convenience reasons. I do know that an M.R.I. scan, dated 2004, indicated T.L.E. in my son’s case.

Temporal lobe epilepsy (TLE) is a chronic disorder of the nervous system characterized by recurrent, unprovoked focal seizures that originate in the temporal lobe of the brain and last about one or two minutes. TLE is the most common form of epilepsy with focal seizures.[1] A focal seizure in the temporal lobe may spread to other areas in the brain when it may become a focal to bilateral seizure.

Complex partial seizures.
A Complex partial seizure is a seizure that is associated with unilateral cerebral hemisphere involvement and causes impairment of awareness or responsiveness, i.e. alteration of consciousness.

Presentation
Complex partial seizures are often preceded by an aura.The seizure aura is a focal aware seizure. The aura may manifest itself as a feeling of déjà vu, jamais vu, fear, euphoria or depersonalization.The aura might also occur as a visual disturbance, such as tunnel vision or a change in the perceived size of objects.[14] Once consciousness is impaired, the person may display automatisms, such as lip smacking, chewing or swallowing.[13] There may also be loss of memory (amnesia) surrounding the seizural event.[12] The person may still be able to perform routine tasks such as walking, although such movements are not purposeful or planned. Witnesses may not recognize that anything is wrong. The person may or may not even realize that they experienced a seizure.

Complex partial seizures might arise from any lobe of the brain.[12] They most commonly arise from the mesial temporal lobe, particularly the amygdala, hippocampus, and neocortical regions.[15] A common associated brain abnormality is mesial temporal sclerosis.[13] Mesial temporal sclerosis is a specific pattern of hippocampal neuronal loss accompanied by hippocampal gliosis and atrophy.[16] Complex partial seizures occur when excessive and synchronous electrical brain activity causes the impaired awareness and responsiveness.[17] The abnormal electrical activity might spread to the rest of the brain and cause a focal to bilateral seizure or a generalized tonic–clonic seizure.[18] The newer classification of 2017 groups only focal and generalized seizures, and generalized seizures are those that involve both sides of the brain from the onset.[6][5]

Extracts from Wikipedia above.

In my son’s case, there is a ‘probably’ included, which really doesn’t help the actual diagnosis. Especially when attempting to put my case forward, for exceptional care consideration to the Council (and to health) who also ignore. The whole situation of ‘probably’ has caused major loopholes for the confusion card to be played, by the Council’s social services department and it remains as only recently they quoted, that my son’s seizures and not part of his epilepsy. So much so, that an Ombudsman has also quoted this. Of course, this Ombudsman can try and back-track and say her ‘fact-finding’ is on the basis of the Councils say so. However, I have brought the matter up to her as not being a factually correct statement concerning my son and one she ought to remove.

I alerted this Ombudsman to this matter before she quoted it in a so-called final decision.

I also asked the clinician for his advice on this quote and he was deliberately unhelpful after knowing it had been used by the Council and in the manner it has been used. He even went so far as saying social services have their own definition for assessment. The thing is my son’s health and care needs are currently split by both and are under what is called Joint solutions.

Defining a joint package of health and social care
A joint package of health and social care is an arrangement between the Local Authority and the local Clinical Commissioning Group (CCG) to:

Work together to arrange, manage and review a person’s support and services; and
Share the cost of those services; when
A person has complex health needs; but
Does not meet the threshold for NHS Continuing Healthcare funding.
Of course, that is another issue. My son does meet the threshold for NHS Continuing Healthcare but it seems once a Continuing Healthcare NURSE assessor (from Nhs) is allocated on 117 cases, then there is a refusal to allow full continuing healthcare and regardless of if someone like my son actually does meet the priority/high threshold. Which he does most certainly.

The nurse assessor makes the ultimate decision on this and the nurse assessor doesn’t even properly know the person they are assessing…Plus they take absolutely no notice whatsoever of anything said by carers like myself who in my case have been caring 34 years…and the majority of my whole adult life.

And then I go back to the main issue of The Council ignoring The Care Act…and making up their own ‘rules’ and inforcing these ‘rules’, by not allowing any determination of exceptional care. Always based on their made-up rules regarding this, that NOBODY living in the same household ever qualifies for being paid to care.

Should this be questioned, all complaints will be disregarded to the point of ‘you’ve been told we do not allow this’ and ultimately someone like me is actually FORCED to accept it. Regardless of actual exceptional care, taking place, in the home.

Care which was actually forced to take place in the household, as all Council facilities and Health couldn’t manage.
My heart goes out to you and your son for how yous are being treated.

There is new legislation that came out in 2014 here in Scotland that changed 1 option into 4 different options and yes councils and social workers still don't know the rules. Their managers or most likley line managers and the chief executive, ceo who receive compliants know legislation so they are the ones to target and you will get a blank no its not allowed but lower level staff who have not been trained or trained badly.

You need to include legislation rules in your complaints as a defence or else they won't budge.

I know 2 families whos parents get direct payment for their children all living in the same household so you can get it under the exceptional circumstances rules.

Keep fighting and don't give up or maybe move if you can to another authority that will accept you and your son.
68 posts