Does a Property & Affairs Deputy have authority to act as a representative/nominee and manage P’s direct payment under the NHS (Direct Payments) 2013 Regulations?
News Alert
If you are a Property and Affairs Deputy, you may be aware from HHJ Hilder’s comments at the PDF Annual Conference in September 2024, that Professional Deputies have been eagerly awaiting a decision from the Court of Protection regarding the scope of a Deputy’s authority in relation to direct payments made under the Personal Health Budgets legislation.
Last week, the PDF received notification that HHJ Hilder has handed down her decision in respect of this issue, in the case of Lumb v NHS Humber and North Yorkshire ICB [2024] EWCOP 57 (hereinafter referred to as the ‘Lumb case’).
The purpose of this brief news alert is to update members regarding the initial headline points all Property and Affairs Deputies should be aware of.
Further, practical guidance for PDF members will be issued in due course.
The Issues
At its most simple, the application to be determined in the Lumb case, was for the discharge of the appointment of Daniel Lumb (“the Deputy”) as Property and Affairs Deputy for SBBi
The real issue in dispute, however, which has attracted such significant attention from many Court of Protection and Community Care practitioners, related to what involvement a Property and Affairs Deputy can, or should have, in the management of a Personal Health Budget under the National Health Service (Direct Payments) Regulations 2013.
The issue of what is within a Deputy’s standard or general authority being one of the key issues in HHJ Hilder’s decision in Re ACC & Ors [2020] EWCOP9.
The questions HHJ considered in the Lumb case were:
- Is the management of a Personal Health Budget within the standard authorisations of a Property and Affairs deputyship?
- Can a Property and Affairs Deputy be a ‘representative’?
- Can a Property and Affairs Deputy act as ‘nominee’?
- Is the appointment of a ‘representative’ or ‘nominee’ a best interests decision that the Court of Protection can make on behalf of SBB (i.e. P)?
- In light of the conclusions to these questions, what steps should be taken in respect of deputyship for SBB?ii
HHJ Hilder’s Observations
In reaching a decision, HHJ noted the following:
- In Re ACC & Ors [2020] EWCOP9, HHJ Hilder previously determined at Paragraph 53.7(c) that the general authority of a Property and Affairs Deputy does not encompass determination of the care needs of P but does encompass the application of P’s funds to meet the costs of P’s care arrangements, including, if those arrangements involve direct employment of carers, preparation of employment contractsiii.
- A Personal Health Budget is conceived as a vehicle for facilitating personal choice in healthcare arrangements.
Whichever one of the three methods of ‘having’ one is adopted (i.e. a notional budget managed by the NHS, a third-party person or organisation independent of the NHS manages the budget; or a direct payment, managed by the individual themselves), the concept of a PHB is not simple delegation of financial management according to the instructions of the paying health body.
This is because that would leave no room for ‘choice’ and so abrogate the stated aim of a PHB.
The aim of a PHB being to enable greater personalisation of healthcare services, give people more choice and control, improve patient satisfaction and quality of lifeiv.
- With reference to some provisions in The National Health Service (Direct Payments) Regulations 2013 SI 1617, the combined effect of Regulations 10(1), (3) & (5), 11(7), 15 and 16, is that the patient receiving the direct payments does not have a right of free disposal of those monies.
They must be applied for a specific purpose. The paying body exercises significant control over how funds are held, and some rights to recover payments made.
None of the above characteristics sit comfortably with the common understanding of “property and affairs” as managed by a deputyv.
- The representative, standing in the shoes of an incapacitous recipient of a Personal Health Budget, must be able to ‘plan’ care arrangements – as in ‘devise’ them, not simply make administrative payments for them.
Such ‘planning’ of care arrangements is not within the standard authorisations of a property and affairs deputyvi.
- The intention of the Regulations seems to have been to open the door to Court of Protection appointed Deputies, however, this vision is at odds with the reality of deputyship appointments as they are actually made by the Court.
The Court invariably confers property and affairs deputyship authorities separately to welfare deputyship authorities and comparatively rarely confers the latter.
Decisions about a person’s healthcare and helping to develop personalised care and support plans fall within the remit of welfare deputy, but securing services falls within the remit of a property and affairs deputy.
Acting as a ‘representative’ requires both types of authorisationvii.
The Decision
HHJ Hilder concluded that:
- The management of direct payments of a Personal Health Budget as ‘representative’ in accordance with the NHS (Direct Payment) Regulations 2013 does not fall within the standard authorisations of a Property and Affairs Deputyship order.
- A Property and Affairs Deputy could be appointed by the health body as ‘representative’ pursuant to Regulation 5(4), but such appointment would be outside the powers of the standard deputyship appointment.
- The requirements of a ‘nominee’ do not fall within the standard authorisations of a Property and Affairs Deputyship.
- The Court of Protection could specifically appoint a Deputy with authority to manage direct payments under the 2013 Regulations.
- A case manager is an appropriate kind of professional to be appointed as a ‘representative’ for the purpose of direct paymentsviii.
Does this decision apply to Direct Payments administered by Local Authorities?
The answer is no.
HHJ Hilder comments in the decision that: “It is important to be clear from the outset that this judgment is concerned with a different direct payments scheme, in respect of health bodies rather than local authorities, to which different regulations apply”ix.
Where does this decision leave Property and Affairs Deputies?
HHJ Hilder’s decision has significant consequences for Property and Affairs Deputies.
The PDF’s preliminary thoughts regarding the implications of this decision are as follows:
1. For those Deputies with clients already receiving Personal Health Budgets, it may be necessary to make an application for extended authority to:
- Ensure the Deputy can receive and administer PHB funds and make payments in line with the agreed care plan.
- Work with care teams and other services without needing welfare powers, including being authorised to source and employ care providers in line with the agreed care plan.
- Ensure that the Deputy has the legal authority to manage PHB funds.
2. In respect of future Deputyship applications, Deputies may need to consider as part of their application seeking specific authority to manage PHB funds, permission to work with and instruct care providers in line with the agreed care plan, and specific authority to enable the Deputy to oversee PHB funds.
Practical Guidance?
The PDF will shortly be arranging a webinar for PDF members to further explore the practical steps Deputies may need to take in light of HHJ Hilder’s decision.
Written by James Pantling-Skeet
PDF Committee Member & Senior Associate, Boyes Turner