Appendix 1
Summary of Short Breaks assessment of need factors
Appendix 2
Section 49 of the Children and Families Act 2014 – Personal Budgets
and Direct Payments
Appendix 3
The Special Educational Needs (Personal Budgets) Regulations 2014
Appendix 4
National Framework for NHS Continuing Healthcare and NHS-funded
Nursery Care (October 2018)
Appendix 1
The number of hours of short breaks allocated to a child and their family and the type of service offered will be explored during the assessment. The recommendation made will be based on the individual needs of the child and their family and will consider the following:
- the level of the child’s disability
- the impact of the child’s disability on being able to care for themselves and keep safe, taking into account the child’s age
- the impact of the child’s disability on family life, taking account of the child’s age
- the circumstances of the parents
- any additional factors that impact the family including housing, finance, domestic violence, physical or mental health problems, and substance misuse
- the wishes and views of the child and their family
Appendix 2
Section 49 Children and Families Act 2014 - Personal budgets and direct payments
- a local authority that maintains an EHC plan, or is securing the preparation of an EHC plan, for a child or young person must prepare a personal budget for him or her if asked to do so by the child’s parent or the young person
- the authority prepares a “personal budget” for the child or young person if it identifies an amount as available to secure particular provision that is specified, or proposed to be specified, in the EHC plan, with a view to the child’s parent or the young person being involved in securing the provision
- regulations may make provision about personal budgets, in particular:
- about requests for personal budgets
- about the amount of a personal budget
- about the sources of the funds making up a personal budget
- for payments (“direct payments”) representing all or part of a personal budget to be made to a child’s parent or a young person, or a person of a prescribed description in prescribed circumstances, in order to secure provision to which the budget relates
- about the description of provision to which personal budgets and direct payments may (and may not) relate
- for a personal budget or direct payment to cover the agreed cost of the provision to which the budget or payment relates
- about when, how, to whom and on what conditions direct payments may (and may not) be made
- about when direct payments may be required to be repaid and the recovery of unpaid sums
- about conditions with which a person or body making direct payments must comply before, after or at the time of making a direct payment
- about arrangements for providing information, advice or support in connection with personal budgets and direct payments
- If the regulations include provision authorising direct payments, they must
- require the consent of a child’s parent or a young person, or a person of a prescribed description in prescribed circumstances, to be obtained before direct payments are made
- require the authority to stop making direct payments where the required consent is withdrawn
- Special educational provision acquired by means of a direct payment made by a local authority is to be treated as having been secured by the authority in pursuance of its duty under section 42(2), subject to any prescribed conditions or exceptions
- subsection (7) applies if
- an EHC plan is maintained for a child or young person, and
- health care provision specified in the plan is acquired for him or her by means of a payment made by a commissioning body under section 12A(1) of the National Health Service Act 2006 (direct payments for health care)
- the health care provision is to be treated as having been arranged by the commissioning body in pursuance of its duty under section 42(3) of this Act, subject to any prescribed conditions or exceptions
- “Commissioning body”, in relation to any specified health care provision, means a body that is under a duty to arrange health care provision of that kind in respect of the child or young person
Appendix 3
The Special Educational Needs (Personal Budgets) Regulations 2014
Request for a personal budget including direct payments
- a child’s parent or a young person may make a request to a local authority for a personal budget, including a request for direct payments, at any time during the period in which
- the draft EHC plan is being prepared in accordance with section 38 of the 2014 Act; or
- the EHC plan is being reviewed or re-assessed under section 44 of the 2014 Act
- where a request for direct payments has been made, a local authority must consider that request
Persons to whom direct payments may be made
- a local authority may make direct payments, as appropriate, to
- the child’s parent
- the young person; or
- a person nominated in writing by the child’s parent or the young person to receive direct payments on their behalf
- direct payments may only be made to an intended recipient if the person
- appears to the local authority to be capable of managing direct payments without assistance or with such assistance as may be available to them
- where the recipient is an individual, is over compulsory school age
- does not lack capacity within the meaning of the 2005 Act to consent to the making of direct payments to them or to secure the agreed provision with any direct payment; and
- is not a person described in the Schedule
- where a nominee has been appointed in accordance with paragraph (1)(c), if the child’s parent or young person notifies the local authority in writing that they wish to withdraw or change their nomination, the local authority must stop making direct payments to the nominee as soon as reasonably practicable and, where applicable, consider whether to make direct payments to the alternative nominee
Decision to make direct payments
- a local authority may only make direct payments where a request has been made for direct payments to be made and the authority is satisfied that
- the recipient will use them to secure the agreed provision in an appropriate way
- where the recipient is the child’s parent or a nominee, that person will act in the best
- interests of the child or the young person when securing the proposed agreed provision
- the direct payments will not have an adverse impact on other services which the local authority provides or arranges for children and young people with an EHC plan which the authority maintains; and
- securing the proposed agreed provision by direct payments is an efficient use of the authority’s resources
- a local authority may only make direct payments in respect of the special educational provision specified in an EHC plan and may not make direct payments for the purpose of funding a place at a school or post-16 institution
Decisions not to make direct payments
- where a local authority decides not to make direct payments it must
- inform in writing the child’s parent or the young person of:
- its decision
- the reasons for its decision; and
- the right to request a review of the decision
- where requested to do so, review its decision and in carrying out the review consider any representations made by the child’s parent or the young person; and
- inform in writing the child’s parent or the young person of the outcome of the review, giving reasons
Conditions for direct payments
- a local authority may not make direct payments unless the requirements set out in paragraphs (2) to (4) have been satisfied
- The local authority must provide written notice to the recipient, specifying the following
- the name of the child or young person in respect of whom direct payments are to be made;
- the goods or services which are to be secured by direct payments;
- the proposed amount of direct payments;
- any conditions on how direct payments may be spent;
- the dates for payments into the bank account approved by the local authority;
- upon receipt of a notice under paragraph (2), the recipient must notify the local authority in writing that they agree to
- receive the direct payments
- use the direct payments only to secure the agreed provision
- comply with any conditions specified in the notice under paragraph (2)(d)
- notify the local authority of any changes in circumstances which might affect the need for the agreed provision
- use the bank account approved by the local authority solely for the purposes of one or more of the following
- these direct payments;
- direct payments made pursuant to the Community Care, Services for Carers
- and Children’s Services (Direct Payments) (England) Regulations 2009(a); direct payments made pursuant to the National Health Service (Direct Payment) Regulations 2013(b)
- ensure that the bank account approved by the local authority is only accessible by the recipient or any other person approved in writing by the local authority; and
- keep a record of money paid in and withdrawn from the bank account approved by the local authority and, on request, or at intervals specified by the local authority, provide the local authority with information or evidence relating to
- the account; and
- the agreed provision
- where the recipient is a nominee
- the child’s parent or young person must provide written consent to the local authority to direct payments being used to secure the agreed provision; and
- the nominee must provide written confirmation to the local authority that he or she is
- responsible as a principal for all contractual arrangements entered into for the benefit of the child or young person and secured by means of direct payments
- (a) S.I. 2009/1887
- (b) S.I. 2013/1617
Permission of school etc
- a local authority may not make direct payments in respect of any goods or services which are to be used or provided in a school (a) or post-16 institution without the written consent of the head teacher, principal or the person occupying an equivalent position
- a local authority may not make direct payments in respect of any goods or services which are to be used or provided on premises where relevant early years education is provided without the written consent of the provider of the relevant early years education
The amount of direct payments
- the local authority must ensure that the amount of direct payments is sufficient to secure the agreed provision
- the local authority may increase or reduce the amount of direct payments provided that the authority is satisfied that the new amount is sufficient to secure the agreed provision
- the local authority may reduce the amount of direct payments where
- payments remain unused; and
- the local authority considers that it is reasonable to offset unused direct payments against the outstanding amount to be paid
Monitoring and review of direct payments
- the local authority must monitor the use of direct payments by the recipient.
- the local authority must review the making and use of direct payments
- at least once within the first three months of direct payments being made; and
- when conducting a review or a re-assessment of an EHC plan under section 44 of the 2014 Act.
- when carrying out a review, a local authority must consider whether
- it should continue to secure the agreed provision by means of direct payments
- the direct payments have been used effectively
- the amount of direct payments continues to be sufficient to secure the agreed provision
- it is still satisfied as to the matters set out in regulation 6; and
- the recipient has complied with the conditions set out in regulation 8(3)
- a recipient may make a request for the local authority to review the making and use of direct payments and the local authority
- must then consider whether to carry out a review; and
- if it decides to carry out a review, must consider the matters set out in paragraph (3)
- following a review the local authority may
- substitute the person receiving direct payments with a nominee, the child’s parent or the young person, as appropriate, where regulation 8 has been complied with in respect of that person;
- increase, maintain or reduce the amount of direct payments;
- require the recipient to comply with either or both of the following conditions:
- the person must not secure a service from a particular person,
- the person must provide such information as the local authority considers necessary
- stop making direct payments
- school is defined in section 4 of the Education Act 1996 c.56 which is applied by section 83(7) of the 2014 Act
Reducing the amount of direct payments
- where a local authority decides to reduce the amount of direct payments it must provide reasonable notice to the recipient and must set out in the notice the reasons for its decision
- the local authority must reconsider its decision, where requested to do so by the recipient
- when conducting its reconsideration, the local authority must consider the representations made by the recipient (and where the recipient is a nominee, any representations made by the child’s parent or the young person) and must then provide written reasons to the recipient (and to the child’s parent or young person, where the recipient is a nominee) of its decision following the reconsideration
- a local authority may not be required to undertake more than one reconsideration of a decision made under paragraph (1)
- the local authority may reduce direct payments following reasonable notice despite the fact that a request for reconsideration has been made under paragraph (2)
Appendix 4
National Framework for NHS Continuing Healthcare and NHS-funded Nursery Care (October 2018)
296
A Personal Health Budget (PHB) is an amount of money to support the identified healthcare and wellbeing needs of an individual, which is planned and agreed between the individual, or their representative, and the local CCG. Personal Health Budgets are a means by which an individual can be given more choice and control. It is not new money, but a different way of spending health funding to meet the needs of an individual.
297
Individuals who are eligible for NHS Continuing Healthcare have had a right to have a Personal Health Budget since October 2014. Personal Health Budget Standing Rules require CCGs to provide people eligible for NHS Continuing Healthcare with information about Personal Health Budgets to offer them the option of taking them up, and support to do so.
298
Personal health budgets can be provided in three different ways, or in a combination of these ways:
a) a notional budget held by the commissioner;
b) a budget managed on the individual’s behalf by a third party;
c) a cash payment to the individual (a ‘direct payment’).
299
A wide variety of resources are available via the personal health budgets pages of NHS England’s website1.
300
CCGs and local authorities are encouraged to work closely together with regard to the personalisation of care and support in order to share expertise and develop arrangements that provide for smooth transfers of care where necessary.