Various Applications, In the Matter Of (Re Direct Payments) [2026] EWCOP 42 (T2)

Clarification of whether the Court of Protection can appoint deputies with authority to manage Direct Payments payable under a range of schemes

This judgment arose from seven applications by professional property and affairs deputies seeking clarification of the Court of Protection's jurisdiction to authorise them to manage "Direct Payments" made under four separate statutory schemes (NHS, Care Act, SEN and Children Act Regulations) so that a person's care needs could be met without the public body itself commissioning services. The applications followed the decision in Lumb which held that managing NHS Direct Payments involved welfare-type decision-making falling outside a deputy's general property and affairs authority. The applicant deputies, who were already managing such payments, unanimously argued Lumb was wrongly decided. In this application, the Public Guardian and Official Solicitor (as amicus) were joined.

After reviewing each of the cases, and answering 24 questions agreed between the parties, HHJ Hilder upholds the decision in Lumb and at [199-202] concludes:

"[199] …..I have concluded that management of Direct Payments in accordance with the requirements of each and all of these schemes requires some decision-making of a welfare-type. 

[200] On the way to reaching this conclusion, I have determined that management of Direct Payments cannot properly be regarded as a routine aspect of quotidian management of an estate. Rather, it is a complex set of specific, identifiable tasks and obligations to be regarded as sui generis and not within the meaning of ‘general’ authority in a standard- terms property and affairs deputyship appointment. The conclusion that management of Direct Payments involves some decision-making of a welfare-type puts this beyond doubt. 

[201] It is within the jurisdiction of the Court of Protection to appoint a deputy with authority to make decisions of a type which involve a mixture of both the property and affairs, and the health and welfare, streams of the Court’s jurisdiction. The separation of work streams in the Mental Capacity Act 2005 and in court processes is only a matter of workability and convenience. It does not reflect how people lead their lives, and it does not restrict the Court’s ability to respond to lived experience. The authority which is needed to manage Direct Payments within deputyship is set out, in the terms of a draft order, in Schedule 1 to this judgment. 

[202] In order to obtain appropriate deputyship authority, an application to the Court of Protection will be necessary. That application may be included in a first application for deputyship appointment, or it may be made subsequently by a deputy who is already appointed. The information which should be provided in support of the application is summarised in Schedule 2 to this order. As always, each application will be particular to its own facts. So the matters listed in Schedule 2 should not be regarded as exhaustive. If a particular case requires provision of additional information, that should be provided with the application and may otherwise be directed by the Court."    

Read the judgment on Bailii