Alternative Futures Ltd v National Care Standards Commission [2002] 101-111 NC

Supported living – deregistration – personal care – national care standards Alternative Futures Ltd, a not for profit company limited by guarantee, is a registered charity. It was established in 1992 primarily to assist the retraction of NHS institutional hospitals by providing care in the community. This took the form of small registered residential homes, nursing homes, and supported living services. Alternative Futures at this time provided both housing and personal services. In 2001, Alternative Housing was established as a separate not for profit company and was also registered as a charity. Alternative Futures and Alternative Housing are part of the Alternative Group. The intention behind this reorganisation was to facilitate a change in the model of operation of Alternative Futures’ existing care homes to a model of supported or assisted living. Alternative Futures applied to the National Care Standards Commission (NCSC), under s15(1)(b) Care Standards Act 2000 (CSA), for the voluntary cancellation of the registration of 11 care homes. The reason for the application in all 11 cases was that the “home is no longer functioning as a registered residential home and that the establishment is following requests by service users to establish a supported living model. Four other homes owned by Alternative Futures had already been considered by the NCSC to be suitable for deregistration. The Response of the NCSC was to send officers to visit each home to assess suitability for deregistration, focusing on the tenants capacity to consent to a tenancy and levels of personal care. This resulted in the NCSC denying the deregistration application and ordered the houses to be managed as registered residential homes. Alternative Futures appealed against that decision to the Care Standards Tribunal. Human Rights With regard to Human Rights, the Tribunal rejected the submission that the reaction of the NCSC amounted to a breach of article 8 (right to respect for the home) or of article 1 of the First Protocol (respect for possessions) or of article 14 of the Convention (unjustified discrimination in respect of another Convention right). It did so on the footing that to fulfil its role and come to regulatory decisions that were required of it could not be an interference with human rights, regardless of the impact on the householder. The Tribunal relied on the fact that the decision to regulate and enforce the CSA does not of itself deprive the tenant of a home or of his possessions. In legal terms (and wholly ignoring the immediate consequences of lack of Housing Benefit entitlement and the subsequent inability to pay their rent, on the security of tenure of the tenants) this part of the decision is probably right, and is not surprising to lawyers, but will be to the social care and housing sector nationwide. Burden of Proof On the matter of burden of proof, the Tribunal decided that it was for the NCSC to satisfy the Tribunal that the establishment being refused de-registration is still a care home. The NCSC must therefore prove that care together with accommodation is being provided. The existence of a tenancy is not enough to protect against a decision that the facility is still a care home. But at least this decision means that the NCSC cannot just leave a deregistration application in the air, and rely on the continuation of registration and do nothing. It has to explain its rejection of the applicant’s reasons for refusal, and these of course will be appealed, which will be very inconvenient for the NCSC. The Test As to the test to be applied under s3 CSA, the Tribunal concluded that the major emphasis must be placed on real and significant choice of the service user. Only in this way could there be an appropriate balance between the requirements of the statutory provision in s 3 on the one hand and the policy considerations that underpin the Government’s “Supporting People” strategy and in particular, “supporting the appropriate development of innovative ways of providing housing and personal care to disabled people.” The Tribunal emphasised that it was not able to apply a simple “best interests” approach. It was therefore no part of its decision in this case whether the service users were better placed in a care home or better placed in a supported living environment. The Tribunal acknowledged that the NCSC’s decision making process was flawed. However, the question for the Tribunal nonetheless remained “Are the properties care homes within s3?” In the Tribunal’s view the level of personal care was not on its own the determining factor and s121(9) CSA must not be read to mean that where bodily assistance is provided or required then registration as a care home is required. Where the needs and the requirements of personal care remained the same, there must be a genuine change of substance. Cosmetic or superficial changes could often be given considerable prominence, and it was the responsibility of the decision-maker to form a view based on the reality of what was actually happening in the establishment and what real choices were provided prior to the introduction of the new structure. As to the argument that the separation between Alternative Homes and Alternative Futures removed the houses from the statutory definition in s3 altogether, the Tribunal concluded that there was full co-ordination on many aspects of the running of Alternative Futures and Alternative Housing, in particular on selection, rent payments, decisions on departure and that the creation of Alternative Housing had therefore not taken the organisation out of the s3 definition. On the issue of choice, the Tribunal said that one of the aspects of choice was what would happen if a service user or a member of his family was not happy with the care being provided by Alternative Futures and wished another service provider to provide for him in the house in which he was a tenant. The evidence was that if someone wanted to change support provider, the only role the landlord has is to ensure that the support they received was appropriate to their needs. Whilst a request for a change of care provider would have to go through the statutory agencies, Alternative Housing had overall control of the care delivery at the home. The evidence showed that the level of personal care remained the same as before the reorganisation. The Tribunal went on to state that the consultation process emphasising the choices available was of the utmost significance. It was necessary to have evidence that the service users should sign by themselves, or where appropriate by advocates or relatives, assured tenancy agreements following full consultation with each of them and their relatives and advocates. It was also necessary that the service users and/or their relatives and advocates should be consulted on the proposal to deregister and positively want their status to be changed to that of tenants in the new scheme. There should be a choice of care provider as part of the process of choice, although the Tribunal acknowledged that this might be difficult in practice. These considerations should be set against the requirement that there should be a full community care assessment undertaken by the commissioning body in which needs and options were fully discussed with the service users and their carers. There should be a detailed service plan drawn up in consultation with each service user. Service users must be able to exercise a choice over what care is provided and which carer provides the care and it should be made clear to the service user and their relatives and advocates that they may bar entry to a carer in the exercise of their tenancy rights. Thus, service user choice was essential in the delivery of care services and if a tenant did not want the existing provider to provide the care, alternative suitable provision would have to be made available following discussions with the service user concerned and other interested parties. The Tribunal was not satisfied that any of this was explained to the service users and or their relatives or advocates in the detail that was required. The Tribunal reached the unanimous decision that the eleven homes were establishments providing accommodation together with nursing or personal care for persons with a mental disorder (s 3(1) Care Standards Act 2000).

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