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Independent User Trusts - are they still relevant?

May 2014

With the advent of direct payments to people for council and NHS care, are Independent User Trusts still relevant?

Background

An Independent User Trust (IUT) has conventionally been a mechanism for helping an individual to have better control over their care by delegating the delivery of care, as far as was legally possible, to the service user, instead of care being commissioned by the NHS or a social services department.

Social Services

Until 1996, social services departments were prohibited from paying cash to a service user in order for them to commission their own care. IUTs allowed a group of interested people, usually family members, to set up a trust to receive money from the social services department instead of the care itself.   The IUT would then commission the care using the funds provided.

Successive Acts of Parliament in 1996, 2001 and 2008 have largely removed the prohibition on social services departments paying cash. The personalisation agenda adopted by the Labour Government under its Putting People First policy (2007) and by the Coalition under its Vision for Adult Social Care (2010), has placed the provision of direct payments for care at the centre of social policy delivery.

NHS

IUTs continued to be useful mechanisms in the commissioning of NHS continuing care for the same reasons.

Until 2013, it was unlawful for Primary Care Trusts or CCG’s to make payments of cash to a patient. However an IUT could contract with the health authority to provide the care.  Following a pilot scheme, new regulations in August 2013 provided patients with a “right to ask” for NHS Direct Payments. From October 2014 this will become a “right to have” direct payments.

In the light of this, are IUTs still relevant?

We consider that IUTs remain a good method for organising the delivery of care in a  number of situations.

Relieving the administrative burden for people with high care needs

An example:

“C” suffered a high level spinal cord injury resulting in his almost complete paralysis below neck level. He retained mental capacity. C did not want the concern of commissioning and administering contracts and being accountable for the money relating to his care. However, NHS regulations mean that the person who receives the cash must also be the person who is responsible for the care provision.  In other words, C could not commission the care in his own name while shifting the administrative burden that he did not want on to a third party.

An IUT where the trustees were members of his own family plus a professional representative was suggested as a good method by which this burden could be lifted from him.  Through his family (the trustees) he could have the care he wanted, without being concerned with the paperwork and accountability issues.

Difficult cases

As an IUT can also delegate functions to a management committee, they may be particularly useful in difficult cases where there is a need to build strong local links with support services.  The management committee can be a good method for bringing in outside expertise, such as health or social services staff, to work alongside case managers and others in the management of the care package.

Complying with the Regulations

Generally speaking, providers of personal care must register with the Care Quality Commission (the “CQC”). However, a series of exemptions are provided for in regulations.

With regard to people who lack mental capacity, direct payments can be made to their individual deputy but where the deputy is a Trust Corporation, as a company, it is not exempt from CQC registration.

It follows then that companies or trust corporations are not appropriate vehicles for IUT’s unless CQC registration is anticipated.

An IUT as the care provider is exempt from such registration.  In these circumstances an IUT is a useful mechanism where the direct employment of carers by a trust corporation deputy is required.

National Insurance & Employment Allowance

There are significant advantages regarding employer national insurance contributions available to an IUT which are not available where the individual who employs their own carers.

Wrigleys IUT service

Wrigleys have a large professional deputyship and trustee practice. Our team are experienced in drafting IUT’s and in the legal and practical issues involved in running them which is done through our community care department.

For further information please contact Austin Thornton on 0114 267 5588.

Austin Thornton View Biography

Austin Thornton

Solicitor
Sheffield

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