Warwickshire County Council
Draft evaluation December 2007
Death of a service user who was receiving Direct Payments
Introduction.
When someone stops receiving Direct Payments there are three main tasks
that need to be completed:
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Their records need to be amended
Any outstanding debts need to be paid
Any remaining balance in the Direct Payment account need to be
refunded to the Council.
Unfortunately sometimes service users die, either while they are receiving
direct payments, or when they were receiving direct payments in the recent
past, but all the actions above have not been completed, (for example their
direct payment was suspended when they went into hospital, and they later
died).
In these circumstances there are particular difficulties in “wrapping up” the
direct payment package, and therefore the following additional guidance is to
be followed:
Notification of Death
Whenever a service user dies in these circumstances, it is essential that the
following are made aware of the situation:
Operational staff (through the relevant Team Administrator).
Finance staff
The Support Scheme.
Independent Living Funds (where appropriate)
Note: This process assumes that the Support Scheme was supporting the
service user before their death or that the executors/relatives of the deceased
are willing to receive support from the Support Scheme. Where, exceptionally
this is not the case the tasks described below as the responsibility of the
Support Scheme will be the responsibility of the executors of the estate.
When any of these become aware of the death, they is a duty to tell the other
parties. In some circumstances the Support Scheme will not know who the
relevant Team Administrator is, in which case the information will be passed
on to them by Finance staff.
Establishing who is dealing with the estate
Note: Although the direct payment account is not part of the estate of the
service user (because it is not the service user’s money) , sometimes this is
not always initially clear to the executors of the estate and it is sensible that
whoever is dealing with the estate and dealing with the service user’s own
money also liaises with the other stakeholders in “wrapping up” the user’s
direct payments account
The Support Scheme will normally be best placed to identify the executors of
the estate, but if they are not able to do this, they will seek the support of
operational staff in identifying next of kin etc.
The Support Scheme will then offer to help the executors with the required
process outlined below.
Ensuring that stakeholders understand the relationship between the DP
account and the user’s own resources.
The DP is not part of the estate of the service user, because it is not their
money. It is money they hold in trust to be used for a specific purpose, ie to
buy services to meet their assessed care needs, and if it is not used for that
purpose it must be refunded to the County Council (or the ILF and/or the
County Council if ILF money was going into the same account).
This is not always clear to Organisations and individuals who are not
experienced in direct payments (eg banks or solicitors) and they have a
tendency to assume that because the account is in the service user’s name it
is their money.
The Support Scheme will identify any such stakeholders and if they perceive
any difficulty in explaining to them or persuading them that this is the case,
they will inform Finance staff, who will take the matter up on the Council’s
behalf. This is likely to include sending them a copy of the direct payments
agreement that the user has signed (as this makes the position clear) and this
will be supplied to them by the Team Administrator for this purpose.
Note: although the DP account is not the user’s money and any balance in
that account should not be treated as part of the service user’s estate, in
exceptional circumstances there may be debts that are the responsibility of
the service user, and that will have to be paid out of his or her estate, as
described below
Establishing how much is in the DP account and outstanding liabilities.
The Support Scheme will take responsibility for working with the executors
and establish :
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The money available in the DP account
Outstanding liabilities to the account.
The latter will normally include
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Wages etc due to staff directly employed by the service user.
Outstanding PAYE and National Insurance for these staff
Payments due to organisations that have provided services, e.g. home
care agencies.
The Support Scheme will establish how much is owed to each person or body
(for example what directly employed staff are entitled to as outstanding
wages, or holiday pay, or pay in lieu of notice or redundancy pay).
The Support Scheme will work with the executors to ensure that:
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Outstanding liabilities to the Direct Payments account are paid
A return is submitted to the Finance Team showing how the money has
been used.
Wages due to directly employed staff
It can take many months for the Direct Payment account to be released for
use by the executors to pay the outstanding liabilities. Typically the bank will
freeze the account until they have evidence to show who it should be released
to.
This can cause real hardship to staff who were employed by the service user,
who, quite naturally expect to get paid promptly for the work they have done
and are often comparatively poorly paid and cannot afford to wait months for
their outstanding pay.
It is important to ensure that they receive this pay as soon as possible, not
only so as to be fair to them, but also because otherwise, if potential staff
know that they might not get paid for months when the user dies, they might
not be willing to work for a direct payment recipient. This would act as a
further barrier to increasing the number of people using direct payments.
Therefore the following process will be used to ensure that any wages
outstanding to directly employed staff are paid as soon as possible.
NB. This process only applies to
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outstanding wages, i.e. payment for work that had actually been done
at the date of death.
It does not apply to:
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Any other money owed to directly employed staff eg any holiday pay,
or money in lieu of notice or redundancy pay that the person is entitled
to.
Any amount owed to any other person or body, eg the Inland Revenue,
or Care Agencies.
These will be paid (if the money in the Direct Payment account is sufficient),
when the Direct Payment account is released by the bank for the purpose
(see below).
It may not apply:
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Where staff have been employed partially or fully using money from the
Independent Living Funds. If it is clear that there is sufficient funding in
the joint DP/account (when it is released) to pay the wages, this
process may be used. It will not otherwise be used (because the
County was neither responsible for funding these staff nor guaranteed
to get the outlay back form the account)
The Support Scheme will identify directly employed staff and the amount that
they are owed.
They will inform the relevant Team Administrator of this, who will the details to
the Team Manager for approval and for information for budgeting purposes
(although experience shows that in the vast majority of cases the money will
later be refunded in full to the relevant cost code when the DP account is
cleared by the bank.)
When approval has been obtained, either:
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Where the directly employed staff were previously paid through the
Support Service’s payroll service, the Support Service will pay the
employees, and then invoice the Team, Administrator for the amount
paid, or.
Where (exceptionally) the directly employed staff were not previously
paid through the Support Service’s payroll service, the Support Service
will liaise with the Team Administrator to ensure that the latter makes
the payment directly to them.
In both cases the employees must be informed, in writing that:
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The Council is making the payment in advance of the wages that they
are due from the service user, and on behalf of the service user (ie
they won’t also get the wages from the service user’s estate as well)
The Council is making the payment as a goodwill gesture, but does not
consider itself to have been legally liable to make the payment,
because the Council was not their employer.
The Council does not consider itself liable for any other payment, eg
any holiday pay, or money in lieu of notice or redundancy pay that the
person is entitled to, and that these will be paid (if sufficient funding is
available) from the direct payment account, when this is released by
the Bank.
Other debts to the direct payment account.
The Support Scheme will work with the executors and will not make further
payments from the direct payment account until they are reasonably confident
that all outstanding debts have been identified.
If there is sufficient money in the account to pay all the outstanding debts.
The Support Scheme will
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Ensure that the debts are paid,
Ensure that a return is submitted to Finance staff showing how the
money has been used and the balance outstanding (using the standard
quarterly monitoring form)
Ensure, if possible, that any balance is refunded to Finance Staff
(and/or to the ILF in appropriate cases), If, exceptionally this is not
possible, Finance Staff will raise an invoice and take appropriate
subsequent action.
Finance Staff will credit the amount received to the appropriate Team’s cost
centre.
If, exceptionally, there is not sufficient money in the account to pay all the
outstanding debts.
The Support Scheme will;
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Advise the executors of the priority to be given to debtors.
Ensure the debts are paid insofar as possible.
Inform Finance staff how the money has been used and the debts
outstanding, and to whom and the amount to each.
Finance staff, with the help of the Support Scheme will then:
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Decide why, they believe there was a shortfall in the account.
If Finance Staff the reason for the shortfall was a fault by the service user,
which is likely to be:
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The service user has mismanaged the account, or
The service user has not contributed their required contribution to the
account
The Support Scheme will support the executors in informing debtors that the
debts are the responsibility of the user’s estate, and should be passed onto
the executors for payment, if there is sufficient estate.
If Finance Staff believe that the reason for the shortfall was that the direct
payments had proved not sufficient for the user to purchase services to meet
their assessed care needs (including contingency planning for unexpected
events such as their death), Finance Staff pass the details to the relevant
team administrator.
The relevant Team Manager decides,
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Whether, or not, to pay some or all of the outstanding debts, giving
particular consideration to any debts to directly employed staff.
If the Team Manager agrees to make such payments, the processes
described above (under “Wages due to directly employed staff”) are followed.