Award-winning Court of Protection Costs Specialists
In this article we look at the recently published practice note (SD14) from the Office of the Public Guardian (OPG). The practice note covers the Public Guardian’s position on care payments that deputies make to family members who are providing care for someone who lacks mental capacity, known as ‘P’.
When considering the care arrangements available for P, the deputy might wish to approve family care payments (also referred to as ‘gratuitous care’ payments) to be made to a family member who provides informal care for P. Before approving these payments, the deputy will need to ensure that they have reviewed the practice note and considered all factors impacting P.
What are family care payments?
These are payments made to family members and friends of P where an informal care arrangement is in place for helping with P’s hygiene, supervision, or companionship.
The kinds of care arrangements that might justify a family care payment include those where:
*For example a case manager (regardless of any formal arrangements in place for professional or regulated care).
If the care arrangements are more formal, then it would suggest that the family member is being directly employed as a carer, with employment and contractual rights. The family care payments guidance does not cover these arrangements.
What is a deputy authorised to approve?
Professional deputies are considered by the Public Guardian to have the authority to make decisions regarding family care payments under the terms of the order, whilst following the guidance and principles of the practice note.
The professional deputy will need to provide evidence of a best interests decision being made. Ensure this is saved to your matter and available for provision to the OPG.
If the Public Guardian does not consider that the decision follows the guidance or is not in P’s best interests, they may apply to the court for directions. In extreme cases, an application for removal of the deputy may be made.
When might an application to the COP be required?
If an agreement cannot be reached on the amount to be paid, or if there is a possibility of the decision being challenged by other family members, then the professional deputy may wish to seek specific approval from the court for these payments.
What needs to be considered?
The deputy will need to consider a number of factors in making the decision, which should be recorded within the best interest decision note:
What about the levels of payments?
The deputy will need follow these steps when calculating the payment:
In some situations, the carer may have given up a well-paid job to care for P. It is the Public Guardian’s view that, in all but the most exceptional circumstances, family care payments are not intended to replace salaries.
When considering an increase to family care payments, the deputy should consider the different factors as set above before approving an increase.
The deputy should agree the frequency of the payments with the carer – either weekly, monthly, or an annual basis.
Are these payments subject to tax?
The deputy should seek approval from HM Revenue and Customs (HMRC) for the payments to be considered as exempt from tax and national insurance (Employment Status Manual – ESM 4016). HMRC will consider a number of factors when deciding if payments are tax exempt, and if approval is not provided by HMRC, family members may sometimes need to be directly employed as carers alongside professional carers, where they will pay tax and national insurance on their payments.
What about reviewing payments?
The deputy should ensure that all best interests decisions are recorded, and that these are kept on file to show evidence on decisions made. When completing the annual report, the deputy should provide the Public Guardian with a breakdown of the care provider, details of hours provided and at what rate.
The deputy should also keep payments under regular review to ensure these are appropriate and affordable. The frequency of reviews will depend on P’s individual circumstances. A review should be carried out if there is a change in circumstances or P’s care needs.
By keeping the payments under regular review, along with the supporting documentation, this will allow your costs draftsperson here at A&M Bacon to demonstrate the necessity of the work when preparing the bill of costs for assessment by the Senior Courts Costs Office.
Our aim at A&M Bacon is to maximise recovery for our clients, whilst delivering expert advice in a friendly and approachable manner. If you found this article helpful, then please ensure you read the articles from my colleagues which cover a number of topics, including internal payroll processing, the importance of attendance notes, and tips to avoid reductions on assessment.
Should you have any queries following this article, please do not hesitate to contact us. Our friendly team is always happy to help.
Jill Thomason-Stewart, Court of Protection Costs Lawyer
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