This paper seeks to focus on legal issues concerning direct payments for social care for adults. Its aim is to consider whether the aspirations for choice, control and innovation, central to successive governments' purpose in introducing direct payments and which have caused it to gain public support, risk being undermined by budget cuts within social service departments and whether the legal framework provides sufficient guarantees to those in need.
The paper summarises the legal basis for direct payments; considers issues of brokerage, choice, resource allocation and commissioning; and looks at relevant legal challenges made up to May 2011.
The paper finds that severe budgetary restraint is likely to undermine the original vision for personalisation and direct payments; and that the legal framework of social service delivery creates risks for councils and service users.
In order to achieve their legal entitlement, users of self‐directed support should always seek top‐up discretionary funds in addition to their initial resource allocation schemes budgetary indication, unless satisfied that the initial indication meets their needs. User groups should be careful to ensure that in funding care services, councils conduct a proper balancing exercise and do not over focus on their own budgetary agenda which may be unlawful.
The paper should provide a useful reference point for users of self‐directed support and their advisers.
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