Lumb v NHS Humber and North Yorkshire ICB [2024] – further restrictions of which all Deputies must be aware

Post Re ACC we are ever watchful in the Court of Protection world for the next case providing further guidance as the scope and limitations of Deputies in managing the financial affairs of an incapable party.

Earlier in the year, there were rumblings about what involvement a property and financial affairs Deputy has in the management of a personal health budget provided through health bodies. HHJ Hilder has now handed down her judgment in the case of Lumb v NHS Humber and North Yorkshire ICB [2024], resulting in more ‘food for thought’ for all financial Deputies.

What is a personal health budget?

This is a vehicle for facilitating a personal choice for P in their healthcare arrangements i.e. allowing them to employ carers directly rather than this being arranged through the Local Authority. There are three methods in which a personal health budget can be installed; a notional budget managed by the NHS, a third party managing the budget, or a direct payment which is managed by P themselves. The aim of a personal health budget is to allow P more choice and control in how their care needs are met and promotes their autonomy in respect of the care package they want.

What happened in the case of Daniel Lumb?

In this case, Lumb, the Deputy, made an application to the Court of Protection for his discharge on the basis that P had no capital that required administering. P did, however, have a personal health budget which Lumb argued was not P’s property as this involved the management of P’s care package, which fell outside the scope of his authority as property and affairs Deputy. Lumb argued that, as a representative in a personal health budget, you are standing in the shoes of P and you must therefore have authority to plan the care arrangements, as P would do if they had capacity, and not simply administer the payments. Lumb suggested that ‘planning’ does not fall within the remit of a property and financial affairs Deputy i.e. it is not a financial matter.  

HHJ Hilder considered that the personal health budgets did not form part of P’s property in respect of s16 of the Mental Capacity Act 2005, however they did constitute part of P’s affairs under s16(1)(b) and therefore required administering. HHJ Hilder concluded the following:

• The management of direct payments of a personal health budget as ‘representative’ in line with the NHS (Direct Payment) Regulations 2013 does not fall within the authority of a property and financial affairs Deputy.
• A property and financial affairs Deputy could be appointed by the health body as ‘representative’ pursuant to Regulations 5(4), but such appointment would fall outside the scope of their standard Deputyship appointment. This begs the question of whether a professional Deputy would be paid for their services in managing this without specific authority.
• A ‘nominee’ also does not fall within the standard authorisation of a property and financial affairs Deputy.
• The Court of Protection could specifically appoint a Deputy with authority to manage direct payments under the 2013 Regulations.
• A case manager is an appropriate kind of professional to be appointed as a ‘representative’ for the purposes of direct payments.

What does this case mean for financial Deputies?

If you currently manage a personal health budget as a financial Deputy, or if you are in discussions regarding doing so in the near future, you must consider making an application to the Court of Protection requesting that your authority be extended to enable you to do so.

Should you require advice or support in respect of this judgement and the possibility of making an application in this context to the Court, then please do not hesitate to contact our Court of Protection team here at Birketts LLP.