Lumb v NHS Humber and North Yorkshire ICB [2024] EWCOP 57 and the Deputy’s authority to manage a Personal Health Budget.
The matter of Lumb v NHS Humber and North Yorkshire ICB concerned an application to discharge the Deputy, as the Deputy considered that a Deputy was not required as the patient’s income is limited to state benefits and managing a Personal Healthcare Budget (PHB) falls outside the scope of the authority for a property and affairs deputy.
The Court considered the points raised and found that the management of a PHB is outside the scope of a property and affairs deputy and it was not necessary or appropriate in the circumstances to appoint a Deputy. The Court granted the application to discharge the Deputy, ultimately finding that a case manager is an appropriate professional to act as a representative for PHB purposes, which did not need approval from the Court to be in place.
Background
The patient in this matter is referred to as SBB, a 31-year old individual with complex needs, who lacked capacity to manage his property, affairs and care arrangements.
Daniel Lumb was appointed as Deputy for SBB in 2020. However, Mr Lumb contended the need for a deputy in the circumstances, as SBB’s income was limited to state benefits and the management of SBB’s PHB fell outside the scope of a property and affairs deputy.
NHS Humber and North Yorkshire ICB contended this and argued that a deputy was required for SBB to act as a representative/nominee to manage the PHB. Two case management companies expressed interest in acting as representative for PBB’s PHB if the Deputy was unwilling to perform the role.
Issues raised
The application was heard in 2023. It was identified that the issues to be considered were whether the management of a PHB fell within the scope of authority for a property and affairs deputy, whether such a deputy can be a representative or nominee under the NHS Regulations 2013, whether the Court can appoint a representative/nominee on behalf of SSB and the steps to be taken with the deputyship in the circumstances.
The appellant argued that a professional deputy was not required, as SSB had no assets beyond state benefits and the direct payments under the PHB remained the property of the Respondent and not SSB. It was argued that acting as a representative under the PHB required the party to make healthcare decisions, which were not appropriate to be carried out by a solicitor. It was suggested that a case manager would be a much more appropriate party to undertake the management of SBB’s PHB.
The Respondent argued that the PHB funds fall within the control of SBB and would be part of SBB’s property and affairs. It was rejected that the deputy would be required to make healthcare decisions, as this would remain the reasonability of the Respondent. The Respondent advised that they considered the deputy suitable to be either a representative or nominee and was prepared to meet the costs of the deputy. The Respondent initially rejected the suggestion that a case manager would be suitable to be a representative, but later conceded that a case manage would be suitable.
The Court’s findings
The Court carefully considered the framework under the Mental Capacity Act 2005 and the NHS (Direct Payments) Regulations 2013. It identified the broad powers bestowed in a professional deputy, but emphasised the difference between financial management and healthcare decision making. While a property and affairs deputy would have authority to manage financial affairs, the role of representative requires decision making regarding healthcare.
The Court considered the appointment of a property and affairs deputy as representative would place obligations on the deputy that would fall outside of the scope of the deputy’s duties and would lack the proper fee authorisation and oversight.
As such, the Court considered it appropriate to discharge the applicant as Deputy. It was held that the management of direct payments under a PHB does not fall within the standard authorisation of a property and affairs deputy. While the court did consider that it could appoint a deputy for authority on financial and welfare decisions, no appointment was considered necessary in the circumstances. A case manager was considered a more appropriate professional, who could be appointed without authorisation from the Court.
Analysis
The claim provides important clarity for financial and affairs deputies who may be managing a patient’s personal health budget. As this has been considered outside of the authority of the deputy, an application should be made to the Court for authority to enable the deputy to continue to manage the budget.
It also clarifies that patients with only state benefits by way of income and no other assets that a case manager may be more appropriate of the only requirement is the management of the PHB. However, this will need to be considered on a case by case basis.
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