Commentary on Sections Part 1 .Social Care Chapter 2 .Miscellaneous Amendments in Relation to Social Care Services, Social Care Workers and Local Authority Social Care Functions Section 20 – Direct payments in social care
79.Section 20 amends Part 4 of the 2014 Act so as to allow a local authority to make direct payments to a person (an individual or a body) nominated by an adult entitled to receive a direct payment under section 50 of the 2014 Act regardless of the whether that adult lacks capacity (within the meaning of the Mental Capacity Act 2005) to receive and manage the direct payments themselves.
80.The amendments made by section 20 are intended to ensure that all persons who are entitled to receive a direct payment under Part 4 of the 2014 Act (including payments made in respect of after-care services under section 117 of the Mental Health Act 1983) have the same entitlement to nominate a person to receive and manage the direct payments on their behalf whether or not they have mental capacity (or in the case of a child under the age of 16, the local authority is satisfied that the child has sufficient understanding to make an informed decision about consenting to receive a direct payment).
81.Those amendments insert new sections 49A and 53A into the 2014 Act and substitute sections 50, 51 and 52.
82.The new section 49A gives the Welsh Ministers power to make regulations which may require or allow a local authority to make direct payments but only where the relevant conditions specified in sections 50 (direct payments: conditions for payment to meet an adult’s needs), 51 (direct payments: conditions for payment to meet a child’s needs) or 52 (direct payments: conditions for payment to meet a carer’s needs) are met by the person who is entitled to receive care and support under Part 4 of the 2014 Act.
83.Section 20 also inserts new section 53A into Part 4 of the 2014 Act. This replaces existing provision made by section 53(11) which currently provides that regulations made under sections 50 and 51 may enable a local authority to discharge its duty to provide after-care services under section 117 of the Mental Health Act 1983 (“the 1983 Act”) by making direct payments, and introduces Schedule A1 (which contains modifications to the existing provision made by sections 50, 51 and 53).
84.Section 20 substitutes Schedule A1. New Schedule A1 sets out in full the conditions which must be met before a local authority may make direct payments in discharge of its duty to provide or secure services for a person entitled to after-care under section 117 of the 1983 Act (rather than by making modifications to the relevant provision in Part 4 of the 2014 Act). The substituted Schedule A1 contains provision that enable a person entitled to receive a direct payment in lieu of receiving after-care to nominate a person to receive the direct payments on their behalf.