Providers of adult social care are often presented with the practical problem of how to support family members of service users to arrange payment for care services.
A familiar scenario is where a resident's family member has been asked to arrange payment for care as the client cannot get access to their finances. The family member has been provided, in good faith, with the client's PIN number or an online banking login. The family member dutifully logs on and carries out the necessary transaction.
Surely, there is nothing wrong here? The transaction is with the account holder's consent and there is no dishonest intent?
Regrettably, it is not so straightforward.
In this scenario, the family member's actions may well constitute an offence under S.1 or S.2 of the Computer Misuse Act 1990. The Act prohibits gaining unauthorised access to ‘computer material’, this nebulous term includes online banking records.
Merely acquiring the account holder's consent is insufficient to authorise a transaction, as critically the bank must also consent. The terms and conditions of online banking services specifically prohibit the sharing of login details or passwords.
So much for the acts of family members, what is the liability of the care provider?
When a care provider, ‘knows or suspects’ that a service user's fees have been paid through unauthorised transactions, an offence of acquiring criminal property pursuant to Section 329(1) of the Proceeds of Crime Act 2002 may well be committed. It would be very difficult to defend such an allegation when an online payment transaction was conducted on a computer located many miles from a care home where a resident was located, without access to a PC.
The sentencing powers of the courts for offences of this type are draconian, such offences carry a maximum sentence of 14 years imprisonment and in some cases can lead to confiscation proceedings for sums far in excess of the unauthorised payment.
Given the real dangers of facilitating informal payments for care, care providers should seek guidance and legal advice. Wherever possible, Lasting Powers of Attorney (LPAs) or the appointment of a Court of Protection Deputy should be used which allow for lawful delegation of banking transactions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
