Court says authority involves both property and welfare decisions under Direct Payment schemes
The Court of Protection has clarified the authority required for deputies to manage Direct Payments, ruling that the function involves both property and affairs and health and welfare responsibilities.
Her Honour Judge Hilder handed down the judgment on 10 September 2026 following seven applications concerning Direct Payments made under four different statutory schemes. The applications were brought by professional deputies already managing payments who sought retrospective and prospective authority to continue doing so.
The central issue was whether managing Direct Payments involved welfare-type decision-making. The court concluded that it did. As a result, management of Direct Payments cannot simply be treated as part of the general authority normally given to a property and affairs deputy.
Judge Hilder found that managing Direct Payments within a regulatory scheme is a distinct responsibility rather than an ordinary day-to-day aspect of managing a person’s estate. The role can involve deploying funds within regulatory constraints, dealing with the public authority providing the funding and complying with repayment obligations.
The judgment also concluded that any authority granted to a deputy to manage Direct Payments should be understood as mixed authority, involving both property and affairs and health and welfare. A Trust Corporation cannot itself receive this mixed authority.
The court set out a framework for applications for authority. Before applying, a deputy should identify other possible people who could manage the Direct Payments and ask the relevant public authority whether it is willing to meet the deputy’s costs. However, obtaining confirmation of funding is not a precondition to making the application.
The judgment also provides guidance on when deputyship management may be in a person’s best interests. Relevant factors include a mixed public and private care package, access to personalised care that may not otherwise be available, the care package working well, the absence of another suitable manager, the proportionality of the management costs and support from family or others properly interested in the person’s welfare. The court stressed that these factors are not exhaustive and that managing Direct Payments through deputyship should not be viewed only as a last resort.
For existing arrangements, Judge Hilder identified 11 October 2024, the date of the earlier Lumb judgment, as the long-stop date. Unless case-specific factors arise, retrospective approval does not need to be sought for steps taken or costs incurred before that date.
The court also said that already-finalised costs assessments by the Senior Courts Costs Office should not normally be reopened. It considered such a step unnecessary, disproportionate and inappropriate.
The judgment ultimately answers 24 questions concerning the practical management of Direct Payments through deputyship and includes a model form of authorisation. That authorisation covers receiving and managing payments, requesting assessments and personal budgets, making representations about the adequacy of care arrangements, participating in reviews and applying payments in P’s best interests. It does not, without further court authority, permit a deputy to appeal or bring judicial review proceedings against decisions made by the statutory body.