Court of Protection rules deputies need mixed authority to manage direct payments

The Court of Protection has ruled that professional deputies managing direct payments on behalf of protected persons need authority that combines both the property and affairs and health and welfare strands of the court's jurisdiction, rejecting arguments that the task falls within the general authority of a standard property and affairs deputyship.

In Re Various Applications in respect of 'Direct Payments' [2026] EWCOP 42 (T2), Her Honour Judge Hilder determined seven linked applications brought by professional deputies from four solicitors' firms, each already managing direct payments for protected persons under one or more of four statutory schemes: the NHS Direct Payments Regulations, the Care Act Direct Payments Regulations, the Special Educational Needs Personal Budgets Regulations, and the Children Act Direct Payments Regulations. The applicants sought retrospective and prospective authority to continue doing so, contending that the court's earlier decision in Lumb v NHS Humber & North Yorkshire ICB [2024] EWCOP 57 (T2), which found that managing NHS direct payments involved welfare-type decision-making outside a deputy's standard authority, had been wrongly decided.

Judge Hilder declined to depart from Lumb and extended its reasoning across all four statutory schemes. Having examined each regulatory framework alongside its accompanying explanatory guidance, she concluded that direct payments exist to give protected persons choice and flexibility over how their care needs are met, and that a person receiving and administering such payments inevitably makes decisions bearing on welfare, not merely administrative or financial ones, when judging whether a public body's care plan is sufficient, whether to request payments at all, and how to deploy them in practice. She rejected the deputies' characterisation of their role as purely "operational", finding that even where deputies rely on case managers and existing care plans, judgements about the adequacy and implementation of care remain welfare in character.

The judgement also confirmed that managing direct payments cannot be treated as an "ordinary" task falling within the general authority routinely granted to property and affairs deputies, describing it instead as a distinct and specific responsibility requiring its own express authorisation. Because such authorisation necessarily draws on the welfare stream of the court's jurisdiction, it can only be granted in respect of a protected person aged 16 or over, and cannot be conferred on a trust corporation, which by statute may only hold property and affairs powers.

Beyond the central determination, the judgement answers a series of practical questions referred to the court by the parties, including model wording for an order granting mixed authority to manage direct payments, the evidence expected to support such applications, and the approach to be taken where deputies have been managing direct payments and drawing remuneration without prior court authorisation. On the latter point, the judge set 11 October 2024, the date of the Lumb judgement, as the long-stop date before which retrospective authorisation need not be sought, and indicated that supervision of this aspect of a deputy's role by the Office of the Public Guardian should mirror the general supervision applied to property and affairs deputyships rather than the fuller regime used for welfare deputies.

The judgement is expected to have significant practical implications for the personal injury and Court of Protection sectors, given the number of professional deputies currently administering direct payments for clients with substantial damages awards, and the guidance it provides on bringing existing arrangements within properly authorised deputyship.