Transcript Theory vs reality in social care

Legal aspects of
housing for people
with dementia
Belinda Schwehr
www.careandhealthlaw.com
Legal Trainer and Consultant
01483 812161
[email protected]
Last year’s issues, revisited
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The effect of incapacity, in relation to the
existence of a valid tenancy – registration and HB
problems…(some developments soon, maybe)
The potential legal fall-out if relatives sign
tenancies without formal authority for their loved
ones – HB and registration problems in
spades…some developments here under the MCA.
The problem of dementia sufferers not being able
to abide by covenants, unsupported –
aggravation, nuisance, hasty and inappropriate
and potentially unlawful, enforced moving
on…(some broader developments here)
Ordinary residence, and which authority pays, for
those not funding their own retirements (no
developments here!)
This year’s issues
 The
Mental Capacity Act – will it
make any difference? Lawful
detention, under the Protective Care
regime, is not going to apply in
people’s own homes…
 Deputyship, welfare-decision making
and surrender of tenancies.
 New forms of tenancy promised for
the future – with enhanced powers of
management for providers of
supported housing - the Law
Commission’s proposals
Tenancies and services for people
with mental impairment
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A person whose capacity to understand the contract you’d
like them to sign, is merely a bit in doubt, should be
presumed to be capable of understanding it. They can sign
with a mark if they can’t write, or their insightful assent can
be witnessed and corroborated by a third party.
A person who is still mentally capacitated, regarding taking
on a tenancy obligation, can properly sign today, for a
tenancy, binding themselves to pay and to be ‘good’ even
when they are likely to deteriorate. The validity of the
tenancy or those obligations under is not affected by any
later incapacity.
An appointee cannot sign a tenancy for a person – the
appointee only has authority to manage that person’s
benefits – not bind them contractually to a set of promises.
A direct payment helper/manager cannot sign a tenancy for
someone incapacitated.
Incapacity, home care services and tenancies
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If a landlord enters into a tenancy, or a provider
enters into a care contract with a client who
probably lacks mental capacity, but the person
still signs their own part of the contract, despite
not understanding it, there is still a presumption
of capacity.
A person who is clearly already mentally
incapacitated should not be asked to contract
directly with a support provider or a care agency,
or sign a tenancy. It would be abusive to insist.
A landlord cannot be made to contract with
people who lack capacity – or their
representative - it is an objectively good
reason for refusing to accept someone as a
tenant, even under the Disability
Discrimination legislation.
Incapacity, home care services and tenancies
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But if a landlord goes ahead, then the contract or tenancy
is voidable (in England) (but void in Scotland) at the behest
of the client or their later authorised representative – if it’s
clear that the other party must have known the person was
incapable of understanding what was signed.
The vulnerable adult is probably still then liable to pay a
reasonable fee for the services or accommodation that
they’ve benefited from, regardless, based on restitutionary
principles, either because the arrangement was for what
the law regards as ‘necessaries’ or because occupation of
land has always given rise to a liability to pay what’s called
‘damages for use and occupation’.
The only good effect of ‘avoiding’ the tenancy would be that
the tenant would not be able to be sued for damages for
breach of the covenants for good behaviour. But if the
tenancy is avoided by the tenant’s representative, there is
no right to remain in occupation either, so it may be best for practical purposes - to leave it in place and take the
consequences of liability for conditions which one can no
longer actually keep to.
So what are the prudent and ethical options?
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Either a lawfully authorised representative signs for the
incapacitated person – that might be an LA deputy, a holder of a
Single Order (next year), an enduring power of attorney holder, a
lasting power of attorney holder – next year
NB A person who has given someone a valid Enduring Power of
Attorney and then lost capacity can have their tenancy signed by
that attorney on their behalf, even though the incapacitated adult
may not understand a word of it, personally.
The attorney won’t be able to force the tenant to conform to good
behaviour covenants, when the person loses capacity, but at least
they are binding, no matter what, from the landlord’s perspective,
and breach would be actionable in damages. or the LA contracts
for him or her under its own powers under the NAA, making the
contract very probably a contract for care together with
accommodation.
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Or a third party signs personally in their own name for the liability
– this could be a family member, or a trustee of a formal trust.
Or (and this is not prudent in my view) the provider takes the
risk… and provides the services regardless of the lack of a valid
obligation to pay.
Incapacity and contracting privately for care
services for incapacitated people in the future
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Under the Mental Capacity Act, in 2007, a person is going
to be able to ‘pledge the credit’ of the client without any
other form of agency status or financial authorisation, for
the purchase of goods and services related to care.
So the informal third party will at least have authority to
promise that the client will pay, but of course won’t have
the authority to bind the client, in any other way, to
contractual commitments. See s8 MCA 2005
Accommodation and shelter however, would not appear to
be covered in the concept of ‘necessaries’ so relatives won’t
be able to use this new statutory power to promise to pay
rent.
Establishing capacity to sign a
tenancy, now and in the future
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In this particular context, making a valid contract
probably means understanding the essentials of
‘the deal’:
The basic concept of money – ie
The concept of owning one’s own money;
The concept of exchanging one’s own
money, in return for something;
The concept of promises and social rules (even
if the person needs help to manage to abide by
what’s been promised) - ie
No damage to the property;
No violence towards others living there;
Clients in extra care or supported living
facilities probably divide into four groups
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Those who did understand what they signed.
Those who didn’t sign, or didn’t understand at the time,
but who could’ve been helped if care managers had
grasped the importance of the issue.
Those who couldn’t have understood, and can’t, no matter
what efforts might now be made - they need a receiver to
sign for them (a ‘short order’ form of this regime, currently
works to give the holder, clear legal authority to sign a
tenancy as the agent of the incapacitated person for all
purposes – it will be called a Single Order after April 2007)
Those whose care needs are actually inimical to the
independent living culture for the others there – ie those
who need minute by minute close supervision to keep them
and others safe.
What about where the client is not actually
capable of refusing care?
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The $64,000 question, in my view….
If a person cannot physically refuse care, or does
not have the capacity to communicate their
refusal of it, or has no concept of any option
other than acquiescence, they could still be a
person who was in their own home, under a
tenancy they had signed when capacitated, or in
their own home under a tenancy signed by their
attorney or receiver, or a licence to occupy, from
their parents, or grown up offspring, for instance.
No amount or intensity of care can then
magically turn their domestic residence into
a care home.
Incapacity on its own is therefore not a
registration danger.
What about where the client is not actually
capable of refusing care?
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However, if the person acquired the tenancy
since having acquired that profile of dependency,
it seems inconceivable to me that they could
at the same time as being in that state, have
had capacity to understand the tenancy. and
hence, without a receiver/short order holder or
attorney having signed, I would be worried about
CSCI attention – on the basis that the
arrangements were actually, in practice, for care
together with accommodation, even if the
tenancy didn’t mention care or support at all.
The care purchasers (usually the LA) have the
right to provide care in the absence of a dispute
about the person’s best interests, but would not
have had the power to sign the tenancy for the
tenant (unless a deputy etc).
Registration matters
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Incapacity matters in registration terms because the Alternative
Futures case makes it clear that a document merely called a
tenancy is not an absolute answer to the CSCI Inspectors, when
they come knocking… if the tenancy is potentially invalid, or not
directly made between the tenant and the landlord, in reality,
registration consequences can flow.
The mums and dads had signed FOR the clients, and no-one had
been to the Court of Protection for approval – but the judge was
prepared to overlook that issue, because of the more serious issue
about what was being provided in that one tenancy
document.
The Courts have now dealt finally with that case, and have said
that notions of ‘choice’ are legally irrelevant to the question what
is a registrable care home and what is not….
The tenancy in that case was an apparently ordinary tenancy,
expressly incorporating support. The landlord was separate from
the care provider, as has been advised to be key, by eminent
lawyers, for years…. But the landlord was legally responsible for
the support element, as was necessary under THB rules – and
which has just been held necessary by a decision of the Social
Security Commissioners in relation to full HB above the local
reference rent.
Registration matters
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The Court found that the tenancies that had thereby been
created, were not ‘normal’ tenancies. The 11 days of
evidence before the CST had shown that there was no
significant or real difference in the care regime, before and
after the grant of the tenancy, and as the input had
undoubtedly been ‘care’ before, so, in this particular
case, the so called ‘support’ given afterwards, was still
‘care’, in fact.
Therefore given that there was one contract, between the
landlord and the parents (probably in their own names), for
what had to be seen as ‘care’, in the particular context,
together with the accommodation, that is why it was
registrable.
So do be careful. Avoid any situation in which the care
is being provided in one integrated contract, together
with the accommodation. That will trigger potential
registration, if the service amounts to assistance with
bodily functions, which may be not what anyone desires.
Typical models I’d feel a bit queasy about…
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If an LA was paying for the care and the accommodation under
one contract, or was paying the same provider for the rent and
the care separately, I would be worried. Eg adult placements for
people having hands on care….
A more common occurrence in my experience is the topping up
of the rent – without the LA even questioning what vires it has
to spend public money on so doing. This often happens when the
landlord is not an RSL, so is not limited to charging merely the
reference rent in the area for HB purposes.
Another favourite is an arrangement for a block contract for care,
and individual care contracts for specific tenants on top, to be
signed between the provider and the LA. Nothing wrong with that
– but guess what – the LA is also often in charge of the
‘admissions’ to the facility, through the initial conveyance
contract or grant conditions signed with the landlord. If the
Landlord and the provider are one and the same in that situation,
that smells of the procurement of the accommodation by the
LA, in an arrangement integrated with the arrangements
for the provision of care by the LA, if you ask me.
Hartrigg Oaks – the Joseph Rowntree flagship
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A hundred plus bungalows, and communal
facilities – gardens, loft conversions and 2nd beds
3 types of payment arrangement
– One off – like buying a place – you get it back when you
leave or die
– Monthly payment – like rent
– Reduced one off and reduced monthly payment – you
get your one off contribution back if you leave/die within
a certain period – a bit like rental purchase.
But what about the care payments? Everyone pays a
regular limited amount into an ‘insurance’ collective
fund, so that when they need care, they can be funded –
but they get nothing back, even if they never need care.
Why doesn’t this constitute the registrable provision of
care together with accommodation? They haven’t replied
to my very polite enquiry, on behalf of my 63 year old
husband…
Termination of the right to occupy
This must not turn, in any sense, on the
willingness of the tenant to have care, pay
for care, accept care, let alone accept care
from the landlord or their agent, or from any
particular company, either within the
tenancy agreement, or outside of it, as a
‘side’ arrangement.
Any such arrangement would obviously be an
arrangement for care, together with
accommodation – and whilst there’s nothing
wrong with that if the care is of a hands off
sort, it’s illegal to provide hands ON care,
within an unregistered establishment, ie assistance with bodily functions - if the
accommodation rights are all wrapped up
with that degree of care.
Try asking yourselves, if you’re a
provider, what is the deal really FOR?
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Is it assistance with bodily functions – if so,
it is critical that the person or their
representative is contracting for the
tenancy, directly, and the care is separately
contracted for.
Or is it for some lesser form of personal
care, together with accommodation? – that’s
fine, even if all the parties are the same, for
all contracts. See s121 CSA.
Or is it merely for some kind of ‘support’
and not care at all? Mere support does not
trigger registration even as a domiciliary
care agency, in England at least – it’s a
harder question in Wales, and a registrable
service in its own right in Scotland.
Try asking yourselves, if you’re a
provider, what is the deal really FOR?
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And if it’s merely for support, to a group of
people, what is the support provider
supposed to do, in terms of safe staffing
ratios, if one of the clients won’t agree to do
what the rest of the group wants to do, on a
given day?
It seems to me that in younger persons’
supported accommodation, we are building
packages of support, based on a right to a
percentage of a support worker, rather than
on what the individual needs….which is why
we risk recreating institutionalised care
where people are not actually free to be
unsociable. Let’s not do that in Extra Care
facilities!
Benefit and finance matters
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If a person with reduced capacity actually
signs a tenancy, they at least have the right
to rely on the presumption of capacity.
But if someone else signs for them, without
legal authority – there’s no presumption of
capacity to be relied upon – not even in
theory – because it’s not the Vulnerable
Adult’s own purported tenancy, in all
probability. It’s someone else’s…
He or she may then be, at most, the tenant
of whoever did sign, which has all sorts of
implications for eligibility for HB. . ..eg
where this is a son, daughter or other close
relative – it may not be accepted as a
commercial relationship by the HB officers –
OUCH!
A recent benefits crisis regarding reg 10(6)
exempt accommodation
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The Freeholder granted a long lease to the…
Landlord – who granted tenancy to the…
Tenant – who gets support from another company (call it an SP
provider)
The SP provider is in a so-called ‘joint venture’ agreement
between the Freeholder, and the landlord, but is financed by
the LA
The HB payable would be restricted to the local reference rent
UNLESS the premises were exempt accommodation – regulation
10(6) – applying the old reg 11. If not, there’d be a £10K
difference per annum per resident.
“Exempt accommodation” is defined in reg. 10(6) of the 1995
Regulations as including accommodation which is “provided by a
non-metropolitan county council …… a housing association, a
registered charity or voluntary organisation where that body or
a person acting on its behalf also provides the claimant
with care, support or supervision.”
The HB dept and the benefits Tribunal decided that the dwelling
occupied by each of the appellants was not “exempt
accommodation” because the care, support and supervision which
was provided to the appellants by the SP provider was not
provided by or on behalf of the Landlord HA. ….
The Commissioner’s approach
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This matters for you if you have SP obligations under
contract with the LA, and not directly to the tenants under
the tenancy conditions.
“A strong indication against the argument [that the SP
provider is acting on behalf of the landlord] is in my
judgment that, if it were right, it would appear to have the
consequence that not only the strictly housing related
support, but also the personal care and supervision, is
being provided by [that provider] on [the landlord’s] behalf.
The scheme would not work unless the appellants (or at
any rate the two more seriously disabled of them) receive
not only housing related support but also personal care and
supervision. …Yet counsel shrank from the suggestion that
personal care and supervision (as opposed to housingrelated support) were being provided on behalf of the
landlord
AS INDEED HE WOULD HAVE TO DO…because of the risk of
the place being found to be registrable if the care was
being provided together with the accommodation, under
the tenancy!
The Commissioner’s approach
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A key difference since April 2003, and one which goes to the heart
of the issue in this appeal, is that in general the SP Administering
Authorities, and social services departments for schemes not
funded via SP, tend to channel the funds for the support costs
directly to the support provider, rather than contracting with the
landlord who then sub-contracts with the support provider.
This is in great part due to a policy development derived from the
White Paper “Valuing People” in 2001, which sought to promote
the maximum degree of independence for people with learning
disabilities. It was considered desirable to separate the provision
of housing from the provision of care, partly so that relations with
the provider of one did not necessarily impact on relations with
the provider of the other.
ANOTHER SHOT IN THEIR OWN FOOT BY THE VALUING PEOPLE
TEAM … This case means it is actually necessary for a landlord to
be one and the same as the provider of care, but simply
contracting separately with the LA. See
http://www.osscsc.gov.uk/judgmentfiles/j1988/CH%200423%202
006-00.doc
Welfare concerns for landlords – and ultimately, for
Extra Care, if we ignore capacity issues
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Compensation for the land use aside, a landlord may not be able
lawfully to evict for breach of covenant, if a tenant cannot help
him or herself from causing nuisance or annoyance – for that could
be disability discrimination, unless actual physical harm were
being threatened.
This can put the landlord in difficulties with other tenants, who can
reasonably expect such covenants to be enforced by the landlord.
A local authority will have no power to surrender a tenancy on
behalf of someone incapacitated, who is refusing care, or causing
a problem for others in a group setting – whether or not the
person was capacitated at the time of signing the tenancy.
An attorney or receiver (a deputy, in the future) could be prevailed
upon to do so, however, if one was in place.
A deputy will be able to exercise a welfare decision making role as
the delegate of the court, and determine where a person should
live, in their best interests, which will combine an LA or personal
power to contract, and a power to move someone under the s5
immunity from suit under the Act, for carers, acting in a person’s
best interests.
The Law Commission’s proposals for a new
form of tenure for supported housing
THE NEW APPROACH
10.6 Our approach now is to provide a legal framework that differentiates
between types of supported accommodation. In essence, our scheme
establishes three levels of tenant’s legal protection for supported housing:
 (1) agreements excluded from the scheme (very short term
accommodation);
 (2) agreements included as standard contracts; and
 (3) agreements included as secure contracts.
10.7 We have also recognised that managers in the supported housing sector
have specific needs for a range of measures that can be used by
them in specific circumstances.
10.8 Our new recommendations provide for as few exclusions from the
scheme as possible and as few exceptions to the general requirement
upon social landlords to provide housing on secure contracts as possible.
Law Commission proposals
DETAILS OF OUR STATUTORY SCHEME
10.9 The Bill provides the first legislative recognition of the specific needs of
supported housing landlords and occupiers. It provides the opportunity to
escape the very real difficulties that projects are forced to deal with under
the current law, given the need to choose between quite possibly legally
dubious licences, on the one hand, and (for these purposes) overly-secure
assured shorthold tenancies on the other.
10.10 Supported housing accommodation is defined in clause 234. It is based
upon the link between the provision of accommodation and the provision
of support services.
We also recognise the importance of housing charities’ work in this area, and
accommodation provided by charities is therefore included in the definition
alongside accommodation provided by community landlords. This means
that those housing charities that are not also community landlords are
able to utilise the legal tools we have designed for the management of
supported housing, though they are not obliged to provide accommodation
on a secure contract.
Law Commission proposals
10.11 Notwithstanding the general objective of including supported
housing in the scheme, the draft Bill excludes supported
accommodation from the scope of the scheme when it is
intended to be provided for a period of four months or less. This is
designed to exclude respite accommodation and
accommodation provided whilst a landlord assesses the
needs of a client before providing them with longer-term
accommodation.
10.12 During this period the normal rules about, for example, the
provision of a written statement of the contract will not apply.
This does not mean that landlords cannot provide their clients with
some statement of their rights and obligations. In practice many
do, if only to make clear what the particular house rules are. For
example, many schemes explicitly prohibit alcohol or drug use on
the premises, and make it clear that breach of such a rule will
result in loss of the accommodation.
Law Commission proposals
10.13 The scheme also enables supported housing provided
by community landlords to be excluded from the general
requirement that they provide accommodation under
secure contracts.
The exclusion is, however, time limited. Initially it lasts for up
to two years, and can be extended in particular
circumstances that are outlined below.
During this period, the landlord will enter into a modified
version of the standard contract, known as the supported
standard contract.
The Bill does not prevent a community landlord offering a
client, who has made good progress and demonstrated a
capacity to live fully independently, a secure contract
before the end of the two-year period.
Tools that will be available to the
managers of supported housing
10.14 The two-year period is defined in the Bill as the enhanced
management period. During the enhanced management period
two specific management tools are available: exclusion and
mobility within a facility.
EXCLUSION
10.15 The first of these recognises that many landlords must be
able, without delay, to temporarily remove a resident who is
behaving violently or in a way which endangers themselves or
someone else in the accommodation. At present this is achieved
in practice because supported housing managers use licences
which they think – often incorrectly – entitle them to evict such a
person without going to court.
10.16 Although our scheme provides that, after the initial period of
four months, residents should have the benefit of at least a
standard contract, it also recognises that there are circumstances
when immediate removal is the only practical option.
10.17 Therefore the Bill provides that it is a fundamental term of the
supported standard contract that, during the enhanced
management period, the landlord can exclude an occupier
without the need for any intervention by the court.
Tools that will be available to the
managers of supported housing
This admittedly draconian power is subject to two vital limitations. First, no exclusion can
be for more than 48 hours. Second, the landlord or the designated person must
reasonably believe that the occupier has acted in a particularly dangerous manner.
The landlord must give notice to the contract-holder setting out the reasons why they
are required to leave, either when requiring them to leave or as soon as reasonably
practicable afterwards.
10.18 The acts which justify a temporary exclusion are:
(1) where the occupier has used violence against anyone on the premises;
(2) where the occupier does something on the premises which creates a risk of
significant harm to anyone; or
(3) where the occupier behaves in a way which seriously impedes the ability of
another resident of supported accommodation provided by the landlord to benefit
from the support provided.
10.1
We recommend (and the Bill provides for this) that this provision cannot be
used more than three times in any six-month period. We thought restriction should
be included to prevent abuse by the landlord. Three times in six months was the
number we arrived at after discussions with providers of social housing, but the
Government may see fit to increase or decrease this number. This may be a
particular issue on which further public consultation will be needed.
10.20 Clearly there will be circumstances where the landlord will need to exclude the
occupier for a period longer than 48 hours.
To do this the landlord will need to go to court to obtain an injunction. For example, if
the landlord decides that eviction is necessary, the landlord may seek an injunction
against the occupier to last for the length of the possession notice period.
Thanks for listening
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