Calderdale MBC v AB & Ors (Order) [2021] EWCOP 56

This application was brought by the Protected Party’s local authority in relation to aspects of P’s care arrangements, in particular the local authority sought confirmation of the Deputy’s authority and scope for decision making, in respect of P’s direct payments.

P received a package of care provided by his siblings. DB (P’s brother in-law) received the direct payments on P’s behalf, from the local authority, which were used to fund P’s care package. P’s Deputy, Mr Lumb, who was appointed in 2019 to manage P’s property and affairs, raised concerns as to the lawfulness of the arrangements in respect of P’s care, chiefly, who was entitled under the Care Act 2014 to receive P’s direct payments.

The local authority’s position was that The Care Act 2014 provides for direct payments in order to delegate their s.18 Care Act duties to the authorised person. These funds are not able to be spent for any other purpose than to fund P’s care and support. If these conditions are breached, the local authority is entitled to seek repayment of the relevant funds. As such, the person managing P’s direct payment can be considered as acting in place of the local authority in providing care and meeting P’s needs for support, this is therefore an act of managing the local authority’s budget for P’s care, rather than the management of P’s funds.

The local authority also drew attention to s.32 (4) (a) of the Care Act 2014 and the definition of ‘authorised person.’ The meaning of authorised person was particularly pertinent as the Care Act prescribes that if there is a person authorised under the Mental Capacity Act, no other authorised person may seek direct payments without the authorised person’s support. Consequently, if it was accepted the Deputy was an authorised person for the purpose of s.32 (4) (a) of the Care Act 2014, it would be within the Deputy’s scope of authority to terminate the current direct payment arrangements if he saw fit to do so. In the alternative, if it was ruled the Deputy was not classified as an authorised person under the s.32 (a), it would be within the local authority’s jurisdiction to determine if the person receiving the direct payments on P’s behalf was a ‘suitable person’ who would act in P’s best interests, as defined by s32 (4)(c) and s32 (7).

Reference was made to ACC & Ors [2020] EWCOP9 and it was highlighted that whilst the Deputy may have general authority to allow him to undertake carer’s employment contracts on P’s behalf, this precludes the determination of P’s care and support needs. Under s.32 (a) of the Care Act 2014, the authority required to be an authorised person was not the authority to ‘apply P’s funds to meet the costs of care arrangements’ but rather to ‘make decisions about the adult’s needs for care and support.’

The local authority therefore concluded that whilst it was not suggested that P’s Deputy was not a suitable or appropriate recipient of the direct payments, the authority granted to him by the Deputyship Order did not deem him as an ‘authorised person’ for the purpose of s.32 (4) (a) of the Care Act 2014.

The Deputy and Respondent duly expressed agreement with the analysis of the local authority and Senior Judge Hilder concurred with the uncontested position. It was therefore ordered that the authority granted to the Deputy in the Deputyship Order did not include authority to make decisions relating to P’s needs for care and support within the meaning of s.32 (4) (a) of The Care Act 2014.

The full judgement can be read here

If you have any questions regarding this summary case law please contact Michelle Wright here

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