In the arena of the Court of Protection (CoP), can a property and affairs deputy manage P’s direct payments under their general authority? In Re Various Applications in respect of ‘Direct Payments’ [2026] EWCOP 42 (T2), HHJ Hilder held that they cannot. Management of direct payments goes beyond the ordinary operational management of P’s money, falling outside their general authority and therefore, requires specific authority from the CoP.
The decision builds upon Lumb v NHS Humber and North Yorkshire ICB & Anor [2024] EWCOP 57 (T2), in which Senior Judge Hilder held, in the context of NHS direct payments, their management may involve welfare decision-making falling outside a property and affairs deputy’s general authority.
The issue in the present case was whether that reasoning applied across other statutory direct payment schemes. The applications concerned four statutory direct payment regimes; namely, the National Health Service (Direct Payments) Regulations 2013, the Care and Support (Direct Payments) Regulations 2014, the Special Educational Needs (Personal Budgets) Regulations 2014 and the Community Care, Services of Carers and Children’s Services (Direct Payments) (England) Regulations 2009.
The seven applications were brought by professional deputies who were already managing direct payments and who challenged Lumb’s conclusion that such management involved welfare decision-making, while seeking prospective and, where necessary, retrospective authority to continue doing so.
HHJ Hilder rejected the deputies’ argument. The management of direct payments is a distinct function falling outside the general authority of a property and affairs deputy. Specific authority to undertaken such management is required from the CoP, to encompass both property and affairs and welfare decision-making.
The critical distinction was between the mere administration of money and decisions as to how P’s care and support needs should be met. Direct payments are intended to facilitate choice; deciding that they are an appropriate means of meeting P’s needs, and how they should be deployed, therefore involves welfare decision-making. HHJ Hilder accordingly held that the reasoning in Lumb was not confined to NHS Personal Health Budgets but applied across the four schemes before the Court.
The judgment also addresses deputies who have historically managed direct payments without specific authority. Recognising the established practice, HHJ Hilder adopted a pragmatic approach to retrospective authorisation, including a backstop date of 11 October 2024, the date of the decision in Lumb.
Practically, deputies managing direct payments should review the scope of their existing authority. Future applications will require evidence addressing P’s care and support needs, the funding arrangements, alternatives to deputy management and why deputy involvement is in P’s best interests.
The decision therefore confirms that managing direct payments is not merely an incident of property and affairs deputyship: where it entails decisions as to the meeting of P’s care and support needs, specific Court of Protection authority is required.
The key points for practitioners are therefore:
1. general property and affairs authority does not, without more, authorise a deputy to manage direct payments;
2. management of direct payments involves both property and affairs and welfare elements, requiring specific Court of Protection authority where undertaken within deputyship;
3. the reasoning in Lumb is not confined to NHS Personal Health Budgets but applies across the direct payment schemes considered in this case; and
4. existing deputies managing direct payments should review their authority and consider whether prospective and/or retrospective authorisation is required.
Teia Yule
