Direct Payment Agreement - terms and conditions

Contents

Agreement

This agreement is between the person receiving the direct payment (you) who will be either the
recipient or the representative of the recipient and Devon County Council (we or us).

In these terms and conditions:

Definitions

Contingency arrangements means the plan you have in place to provide the care and support in emergencies, for example, if your personal assistant is off sick.
Contribution means the amount the recipient must contribute to their personal budget.
Devon Card means the prepaid visa debit card on which we will make the direct payment unless we have agreed you can use a separate bank account.
Direct payment is the way you have chosen to receive the personal budget to enable you to arrange and buy social care support.
Employers’ liability insurance means the compulsory insurance that employers are required to have in place against personal injury to their employees.
Personal assistant (PA) means an individual support worker who works on a one-to-one basis and who is not separately employed by any agency or other employer.
Personal budget means the total sum of money that we have assessed the recipient as being entitled to receive to meet their social care needs following a social care needs assessment.
Recipient means the person for whom the direct payment is being made.
Representative means a person signing this agreement on the recipient’s behalf.
Support plan means the care and support plan agreed by you or the recipient (or both) to meet the assessed care and support needs of the recipient.

1: Identification check

1.1 Before we can make a direct payment to you, we need to verify your identity

1.2 When you sign this agreement and tick the check box at the back, you are consenting to us providing your name, address and date of birth to our contracted identity provider, Experian, who will undertake a secure identity check on our behalf. This will be a soft enquiry which will not appear on your credit report and will not impact your credit score. We will be unable to make a direct payment to you unless this check is carried out.

2: Amount of the direct payment

2.1 We have agreed to pay you the personal budget amount detailed in the support plan by way of a direct payment.
2.2 Recurring payments will be made every 4 weeks in advance.
2.3 Unless you are funded by Torbay and South Devon NHS Trust, we will undertake a financial assessment and inform you of any contribution you are required to make.
2.4 Where you receive the direct payment onto the Devon Card, we will invoice you for any required contribution and you must pay this to us by the date in the invoice.
2.5 Where we have consented to you having a separate bank account, any required contribution must be paid into this bank account. Your contribution will make up the first part of your personal budget and will therefore be spent first. For further information please refer to the Service User’s Guide (See the link at Appendix A).
2.6 We may adjust the amount of direct payment in April of each year to allow for inflation. We will write to confirm any changes.
2.7 We may also adjust the amount of direct payment if there are direct legislation changes (for example, changes to the minimum wage or to holiday entitlement) that affect the terms and conditions of employment of anyone you have employed as a consequence of this agreement. We will write to confirm any changes.

3: Direct payment – Devon Card

This clause only applies if you are receiving the direct payment via the Devon Card.

3.1 Unless otherwise agreed with us, we will pay the direct payment onto the Devon Card. The Devon Card is a safe and efficient way to pay for services and includes the ability to make bank transfers, set up standing orders and direct debits, and utilise telephone and online banking.
3.2 Our provider will supply the Devon Card to you at no cost together with a user guide explaining how it works.
3.3 You must use the Devon Card for all purchases made with the direct payment.
3.4 We will monitor the transactions you make on the Devon Card to manage compliance and protect against fraud.
3.5 You must keep a clear record for seven years (for example, invoices, payslips, HMRC records) and all receipts for payments made and will supply them to us upon request. Failure to provide adequate records for the purchases made may result in us ending this agreement.

4: Direct Payment – separate bank account

This clause only applies if we have agreed that you can receive the direct payment into a separate bank account.

4.1 We will monitor the transactions you make to manage compliance and protect against fraud.
4.2 You must keep a clear record for seven years (e.g. bank statements, invoices, payslips, HMRC records) and all receipts for payments made and will supply them to us upon request. Failure to provide adequate records for the purchases made may result in us ending this agreement.
4.3 You must send bank statements and the money tracker form to our finance team at the intervals requested by us for account monitoring purposes.
4.4 If you have problems managing your separate bank account or if adequate returns are not provided in a timely manner, you may be required to transfer the direct payment to the Devon Card or, alternatively, we may revert to providing you with a commissioned service

5: Using your direct payment

5.1 The direct payment must only be used to meet the outcomes set out in the support plan. You must not spend it on something different or you will be in breach of this agreement which may result in us ending it and/or taking action to recover funds.
5.2 Further details of what you are permitted to purchase with the direct payment are set out in Appendix 1 to our Self-Directed Support Policy (direct payments) (See the link at Appendix A).

6: Paying family members

6.1 You must not use the direct payment to pay a close family member who lives with the recipient without our prior written consent. This will only be provided where we consider that it is necessary to do so.

7: Service arrangements and support providers

7.1 You are responsible for managing all arrangements for service provision to meet the outcomes specified in the support plan. This will include putting in place contingency arrangements for any break in service.
7.2 If there is a break in service and the contingency arrangements fail, we must be informed and we will try to arrange alternative services. We will recover monies and detail the amount in writing.
7.3 You should carry out checks on the safety and quality of the services you are proposing to put in place. (See the link at Appendix A – Arranging Care and Support Safely).
7.4 We intend that the direct payment is the means by which you are able to independently arrange and manage the services required to meet the outcomes as set out in the support plan. However, where there is evidence to suggest that the person or organisation providing a service is unfit, not able to provide an adequate or appropriate service or is not meeting the principles of our Fair and Affordable Care policy (See the link at Appendix A), we may require you to change the service provider.

Care agency

7.5 You must ensure that any agency that you purchase regulated care services from is registered with the Care Quality Commission (CQC) in respect of that activity. Regulated care is any form of personal care service in the person’s own home and it is an offence for any commercial provider to offer such personal care without a CQC registration.
7.6 We strongly recommend that you have a written contract in place with any care agency that is used for providing care and support.

Personal assistants (PAs)

General requirements

7.7 We have a PA network where you can find useful information about employing a personal assistant (See the link as Appendix A).
7.8 Please also refer to the employing a personal assistant FAQ for further information on the factors you must take into account (See the link at Appendix A).
7.9 If you are planning to use a PA to provide care, we strongly recommend that you check their employment history by obtaining a minimum of two references, asking to see proof of their training and qualifications and their right to work in the UK. You should also check their employment status by referring to HMRC’s Employment Status Guidance and Calculator.
7.10 You must purchase and maintain adequate employers’ liability insurance. The costs of such insurance will be included within the personal budget. You must provide us with a copy of this insurance and receipts for payment upon request.
7.11 We recommend that you carry out a Disclosure and Barring Service (DBS) check. If you request, your arranging support adviser can arrange for this check to be completed for you.

Employing a PA

7..12 You must comply with all legal duties and obligations as an employer including those required by HM Revenues and Customs (HMRC) and the UK Border Agency.
7.13 Anyone employed through a direct payment will not be considered our employee or agent and we will not be responsible for income tax, national insurance or any other employee payments or legal responsibilities in relation to employees. These will be your sole responsibility.
7.14 You must put a contract of employment in place with the PA which includes terms and conditions i.e. agreed holiday, sick pay, working hours. Please refer to the Appendix A – Skills for Care website for further information.
7.15 You must use a payroll advice service or equivalent to ensure that wages, income tax, national insurance, holiday and pension contributions and any other required payment are complied with. The costs of this will be included in your personal budget.
7.16 You must ensure that employers’ liability insurance is in place and public liability insurance if required.
7.17 You must ensure the PA is paid at a rate that is not less than the National Minimum Wage.

Self-employed PA

7.18 If a PA maintains that they are self-employed, we strongly recommend that you carry out all relevant checks with HMRC including obtaining a Unique Taxpayer Reference number (UTR) that verifies self-employed status. Please refer to https://www.gov.uk/guidance/check-employment-status-fortax. Failure to do so may leave you liable for tax and pension contributions plus penalties.
7.19 You must also obtain proof that they have required public liability insurance in place.
7.20 You must put a services agreement/written statement of work in place with the PA which should, amongst other things, set out their employment status, their charges, when they will work for you. Please refer to the Appendix A – Skills for Care website for further information.

8: Help managing a direct payment

8.1 Please refer to the Appendix A for further information about where you can obtain support and advice on managing the direct payment.
8.2 Our Arranging Support Team will provide initial support to new direct payment recipients. If after three months, you are still unable to manage independently, the recipient may be provided with commissioned services instead of a direct payment.
8.3 We will provide funding for ongoing financial support services where this is agreed in the support plan for example, payroll services.
8.4 We have a service level agreement with Disability Focus who can provide you with financial administrative support. Please see Appendix B. If you receive support from Disability Focus, it is important to keep them up to date with any changes to your employee arrangements (for example sickness, holiday, employment ending). If they are not kept informed, an overpayment may occur for which you will be responsible.
8.5 Despite any support that is put in place, you are responsible for the direct payment and the care and support arrangements. If at any point you do not wish to continue receiving a direct payment, you should inform us immediately and we will arrange for a commissioned service to be put in place.
8.6 If you are experiencing difficulty managing the direct payment you should contact: Care Direct Plus East on 01392 381206 option 1, then option 1 or csc.caredirect@devon.gov.uk, alternatively, you can email the Arranging Support Team directly at: ASTSelfdirectedsupporteast@devon.gov.uk or ASTSelfdirectedsupportsouth@devon.gov.uk or ASTSelfdirectedsupportnorth@devon.gov.uk

9: Change of circumstances

9.1 You must inform us as soon as possible if there is any change in your or the recipient’s financial or other circumstances which may affect the amount of personal budget or the care and support needed for example, if the recipient goes into hospital.
9.2 Where there is a temporary change in circumstances, we may decide to suspend payment. Any decision to suspend payment will take account of any reasonable existing liabilities including periods of notice relating to the service arrangements. You will be notified in writing of any such changes.
9.3 You must advise us if there is any change to your contact information as completed at the end of this agreement.

10: What will happen in the event of your death

Devon Card

10.1 Any funds left on the Devon Card will not form part of the recipient’s estate and will be recovered by us after relevant discussions.

Bank account

10.2 Any remaining funds in the bank account will not form part of your estate and must be returned to us immediately.
10.3 We will pay any amount due to the recipient’s estate to fulfil any contractual or legal obligations due on receipt of supporting documentation or an invoice.

11: Review of direct payments

11.1 We will review the management of the direct payment as part of the initial review of your support plan and annually thereafter to check that the direct payment is still an appropriate way to meet the recipient’s needs.
11.2 We will check that you are complying with your employer obligations, if applicable, including PAYE returns, paying tax and national insurance deductions to HMRC and have the required employers’ liability insurance in place.
11.3 We will provide reasonable notice of the review and you are responsible for engaging with the review process and for taking all reasonable steps to provide any information and evidence that we request.

12: Review of support needs

12.1 We will undertake an annual review of the support plan.
12.2 A review will also be triggered if the monitoring and review of the direct payment raises concerns about whether the recipient’s support needs are being met.
12.3 If there is a change in needs, this may result in a change to the personal budget. We will notify you in writing of any such changes.

13: Surplus funds

Devon Card

13.1 If a surplus of funds has accumulated on the Devon Card, we will seek to reclaim any surplus where the amount in your account exceeds 8 weeks’ of your personal budget. If your individual circumstances may mean you need more than the 8 weeks balance, you must contact us to discuss an exception.
13.2 Any surplus funds on the Devon Card remain our property.

Bank account

13.3 If a surplus of funds has accumulated in your bank account, considering the need for contingency and any other anticipated expenditure, the surplus must be repaid to us. Any surplus identified and requested for repayment, will be automatically recovered, unless you contact us to request that we leave it in your account. Failure to do so may result in us taking legal action against you.

14: When will we claim money back?

14.1 We may recover any direct payment money from you which is not used in accordance with this agreement or to meet the agreed outcomes as set out in the support plan. We will routinely reclaim surplus where the amount in your account exceeds 8 weeks’ of your personal budget.
14.2 Where a misspend has occurred but is the result of a genuine mistake, we will liaise with you to arrange a voluntary repayment.
14.3 Where a misspend has occurred and is as a result of a deliberate breach or any of the conditions of this agreement, repayment will be requested.
14.4 Failure to repay any misspent funds may result in us taking legal action against you in the County Court as well as the termination of the direct payment.

15: Ending this agreement

You

15.1 You can end this agreement by providing us with 4 weeks’ notice in writing.

15.2 We will discuss with you as soon as possible if we are considering discontinuing direct payments and why, in order to explore all available options before we make the final decision to end this agreement.
15.3 We will normally provide you with 4 weeks’ notice in writing before we end this agreement but reserve the right to provide less or no notice in serious cases for example, where we believe there is a significant risk of harm or financial abuse
15.4 The circumstances where we will consider ending this agreement include:
- if you are not complying with this agreement or any of the conditions contained within it and more particularly summarised at Appendix C
- if the direct payment is not being used to achieve the outcomes in the support plan
- if the recipient no longer needs support or no longer needs support for a short period.
- if you fail to supply sufficient information to support the payments made
- if we no longer believe it is appropriate to make the direct payment
- if we believe that you are no longer capable of managing the direct payment or of managing it with support.
- where we are required to do so under legislation, for example where the individual receiving the care is placed by the courts under a condition relating to drug and/or alcohol dependency
- where the representative no longer wishes to do so, is no longer deemed appropriate by us and no alternative person can be found.
- where the recipient has lost capacity to consent and there is no appropriate person to
  manage the direct payment on their behalf.
15.5 Ending the agreement will trigger a review of the recipient’s support needs so we can plan how their needs can alternatively be met.
15.6 We will support you to seek to ensure there are no outstanding contractual liabilities before the direct payment ends.

16: Concerns and complaints

16.1 You should know how you can prevent, recognise and report abuse, neglect and exploitation and any other concerns you may have about the safety or welfare of the recipient. For further information on safeguarding, see the link at Appendix A.
16.2 You have the right to complain about the operation of this agreement under the Social Care complaints process.

17: How will your information be used?

17.1 You agree that we and the person you have nominated to manage the direct payment on your behalf (if you have one) may share personal information about you in order to help make sure your needs are met appropriately.
17.2 Your personal data is being used by our Adult Care and Health Team for the purposes of assessment, care planning and support delivery via a personal budget and direct payment. We undertake to ensure your personal data will only be used in accordance with our privacy notice which can be accessed here: https://www.devon.gov.uk/privacy/privacy-notices/

18: Changes to this agreement

18.1 We may change the terms and conditions of this agreement from time to time by advising you in writing about the change. We will give you reasonable notice of these changes and give you the opportunity to withdraw from the agreement.

Appendix A – links to useful information on direct payments

Appendix B – Disability Focus financial administration services

For people taking a direct payment to employ a personal assistant:

Act as a payment agency for all employer liabilities, including but not limited to processing P46 or P45 for personal assistants, issuing pay slips, calculating payments due from timesheets, calculating statutory payments and obtaining refunds from HMRC, holiday leave and pension payments where applicable and within the required time frames. Disability Focus will maintain correct audit procedures in relation to the above activities.
Establish the status of the personal assistant through a signed declaration from the individual to declare that they are registered with HMRC under self-assessment. If such a declaration is not received, then the personal assistant will be advised at that point by Disability Focus that they will be treated for the purpose of payroll as an employee.
When a case is to be closed, Disability Focus contact the direct payment recipient and obtain a final timesheet so that a final payment can be made, P45s issued and the relevant third parties closed, for example, HMRC PAYE Scheme and the Nest Pension Scheme.

For direct payments recipients paying an agency:

Liaise with service providers regarding all invoices to be paid.
Pay invoices to service providers.
Keep records of payments due and payments made each month.
On account closure contact service providers to arrange to pay the final balance.

For people using the (prepaid) Devon Card:

Disability Focus will use the prepaid card system to manage and record payments to providers. All liabilities stay with the cardholder.

For people who want a payroll only service:

All activities are the same as above apart from the action of making payments. For payroll support only, Disability Focus does not have access to the Devon (prepaid) Card, so they cannot make the payments on behalf of the person.

Disability Focus will also undertake the following general duties on behalf of the Council:

Raise with DCC any concerns as to whether a direct payment is being spent appropriately.
Advise DCC once a final payment has been made and an account can be closed.
Directing a direct payment recipient who is an employer to their employers’ liability insurance provider helpline or Care Direct for HR advice when there is a potential employment issue to be resolved.
Completion of surplus reporting each month.
Assistance in budget profiling and visitations of clients.

Costs

If a direct payment with financial administration support is agreed as appropriate, the costs will be included in your personal budget.

Appendix C – summary of conditions

Mandatory conditions

The direct payment is to be used only to pay for arrangements required to meet the needs specified in your care and support plan.
Without our written consent, the direct payment must not be used to pay any person listed below to meet your care needs or provide you with administrative support:
- Your spouse or civil partner.
- A person who lives with you as if your spouse or civil partner.
- A person living in the same household as you who is your parent or parent-in-law, son or daughter, son-in-law or daughter-in-law, stepson or stepdaughter, brother or sister, aunt or uncle, grandparent.
- The spouse or civil partner of any person listed above who lives in the same household as you.
- A person who lives with any person listed above as if that person’s spouse or civil partner.

Written consent to pay for the persons listed above will only be provided if we consider that it is
necessary for that person to be paid to meet your care needs.

A direct payment made to an authorised person is made on the condition they must:
- notify us if they reasonably believe that you no longer lack the capacity to request the making of direct payments
If we have appointed an authorised person is:
- a company
- a partnership
- someone who is not a family member: or
- someone who is not a friend of yours who provides you with care

they must obtain –

an enhanced criminal record certificate, or
verification that a satisfactory enhanced criminal record certificate has been obtained.

Discretionary conditions

Upon our request you or the authorised person must provide sufficient information to us for the purposes of enabling us to ascertain that:
- the making of direct payments is an appropriate way to meet your needs
- the conditions upon which this direct payment is made are being complied with,
Any such request for information will not be:
- Made more frequently and in more detail than is reasonably required by us to ascertain the matters referred to in paragraph 1,
- Required in a format which is not reasonably practicable for the adult or authorised person to provide.
Optional [Your needs may not be met by [name or person or company];]

Direct Payment Agreement – terms and conditions