Local authority duties towards people in receipt of direct payments
What are direct payments?
If you or someone you care for receives help from social services, you can apply for direct payments. These let you choose and buy the services you need yourself, instead of getting them from your local authority (LA).
Direct payments are cash payments which are only made to individuals who have been assessed by social services as needing care and support services.
Further information on direct payments from Department of Health.
Summary of local authority duties
Local Authorities (LAs) must assess the individual person's care needs.
Where people qualify in needing certain services, LAs should either provide:
- the services required to qualifying individuals; or
- direct payment to enable an individual to obtain their own services.
Individuals may employ carers directly or through an agency.
Local authorities should:
- adequately assess care needs and how safe care should be delivered.
- ensure arrangements are in place to review assessments to help ensure safe delivery of care.
- share any relevant risk assessments, which form part of the care assessment, with direct payment recipients. This will help recipients to take health and safety into account when employing carers.
- ensure that there is good on-going communication between the person in receipt of payments and the LA, so far as is reasonably practicable.
- consider what health and safety advice recipients might need.
- explain the safeguards needed in the employment of workers.
- review the level of direct payments to help ensure the right services to provide a safe level of care are secured.
What are the local authority's duties under health and safety legislation?
LAs have duties under Section 3 of the Health and Safety at Work etc Act 1974. They are also required to assess risks. Guidance is provided on sensible risk assessment.
Health and safety legislation may apply where the LA:
- has duties to assess care needs and provide care; or makes payments to allow the individual to employ their own carers or services.
- has control over how the funding is used, and what level of care is provided or purchased by the individual.
The main duties of care, both criminal and civil, will rest with the employer. Where this is the person in receipt of payments, the LA may still retain duties.
Example - if specialised equipment is required for complex handling and the funding does not cover these needs, it could be argued that the decision by the LA not to provide enough funding to cover appropriate equipment or provide someone sufficiently competent to operate it, is likely to expose non-employees to risk. The risk (or possibility of danger) might be said to have originated from the way the LA conducted its undertaking. Each case would depend on the particular facts, including the terms of the particular agreements with service users, and how reasonably practicable it was to do otherwise.
What should individuals do?
- Tell the LA about any change of circumstances, living arrangements or medical requirements so that needs can be reassessed
- Tell the LA about any issues with obtaining the correct and safe delivery of care
- Understand that they have a responsibility for their own health and safety and that of those they employ
- Share the assessments and care plan with the care agency or the employee who is to deliver the care
What is HSE's involvement?
Other organisations lead in health and social care regulation, as set out in our Who regulates health and social care page. This page also describes the circumstances under which HSE may investigate health and social care incidents.