14. In January 2023, Mrs O made a request to the ICB to be paid as a family member, living in the same household, managing three PHBs on behalf of her three sons. She complains the ICB refused her request on the grounds that she is an employer of the PHBs. She says she is not an employer but a manager, supporting her sons with managing the PHBs.
15. Mrs O explains the employer registered with HMRC is under her son’s name, the direct payments are paid into her sons’ accounts, and she does not have access to the money.
16. The ICB have said Mrs O is a legal representative of her sons’ PHB.
17. NHS England guidance, paragraph 4.11 states a representative is responsible for managing direct payments on behalf of the person receiving care (set out in section 4(3) of the Regulations). It says they must: • act on behalf of the person, e.g. to help develop personalised care and support plans and hold the direct payment • act in the best interests of the person when securing the provision of services • be the principle person for all contracts and agreements, e.g. as an employer • use the direct payment in line with the agreed personalised care and support plan • comply with any other requirement that would normally be undertaken by the person as set out in this guidance (e.g. review, providing information).
18. Paragraph 148 of the NHS England guidance states where direct payments are being used to employ one or more people, the person receiving care, the representative or the nominee, should be made aware of their legal responsibilities and obligations as employers.
19. NHS England guidance, section 7.3 paying staff living in the same household, paragraph 153 states a direct payment can only be used to pay a family member or friend living in the same household to deliver care agreed in the personalised care and support plan if the ICB is satisfied that this is necessary to meet the receiving carer’s need for that service.
20. Paragraph 156 states where a family member is both the direct payment recipient and the potential employee, there could be a conflict of a conflict of interest.
21. We requested further information from the ICB. Within her son, C’s, direct payment PHB support plan dated 8 February 2022, under the section ‘how will my support be managed’ it states the following:
‘My Personal Health Budget Direct Payment will be managed by my mother and me. We will manage recruitment, pay my staff, do the payroll, take out employer liability insurance and maintain the carers’ competencies with annual training updates. The employer will be me and my mother and we will manage all employment activities for the carers/personal assistants. We will draw up job descriptions, care plans and risk assessments.’
22. Mrs O’s son’s, M, direct payment PHB support plan, originally dated 7 February 2022 and amended on 27 November 2023 and 19 April 2024, states that the employer is Mrs O with the same responsibilities as listed in C’s PHB support plan.
23. Mrs O’s other son, P’s, direct payment PHB support plan dated 8 February 2022 also states Mrs O is the employer.
24. The ICB also provided us copies of C, P and M’s PHB direct payment for healthcare agreements setting out the agreement between the ICB and the representative/nominee and the responsibilities and commitments. Mrs O signed all three agreements.
25. From the evidence we have seen, Mrs O is recognised as an employer of the PHBs and therefore the ICB’s decision to refuse her request to be paid as a family member was in line with NHS England guidance and the Regulations. We therefore find no indication of a failing.
26. We thank Mrs O for bringing her complaint to us and we hope she will find our decision useful in confirming that the ICB’s decision was made in line with guidance. We wish her and her son’s all the best for the future.