Registration law re care homes and independent living

Registration Issues in England relevant to the ongoing difficulty about the distinction between care homes and independent living:

  • Under the old law, since repealed, ‘care homes’ were establishments which provided care (defined as ‘assistance with bodily functions’, now personal care or nursing) together withaccommodation.
  • The meaning of ‘together with’ has been held, in case law that is binding on everyone, to be ‘interdependent and integral to the right of tenure’, even if there are two separate providers, or a document called ‘a tenancy’.
  • Incapacity to sign a tenancy will go to the root of whether the tenancy actually exists in a legal sense, or is void, or voidable. If it is void, then there is a risk that the provider of the accommodation will also be found to be providing the care, in a ‘together with’ way….with fatal consequences, in theory, at least.
  • Domiciliary care agencies were undertakings that either arranged or provided care in a person’s own home, of the type they could have done for themselves if they were not ill, disabled or infirm. Now the wording is where the person is living….
  • Supported Living Services – (the kind that the CQC people used to say no-one could ever do for themselves, given the inherently third party nature of counselling, supervising, coaching, etc, however well they might one day become), used not to be registrable in England at all. (They are in Scotland, and in Wales they have always been treated as if they are at least capable of being personal care). Now, under the new law, prompting together with direct supervision of personal care tasks, in the place where one is living, has been made registrable as constituting personal care, unless there is an exemption applicable to that specific category of activity.

Why does it matter?

The provision of unregistered residential care – i.e. care that should be registered, is a criminal activity…

Funding it, in ignorance of the legal framework, must be maladministration at the very least, on the part of a council; I think funding it also amounts to provision, personally, given the statutory framework. Ambiguity over the existence of a proper liability to pay, or identification of who is liable to pay for the accommodation, risks jeopardising the Housing Benefit income stream to pay the rent, which would shake supported living to its very roots; Wychavon has improved this mess though. Ambiguity about the validity or ownership of the tenancy messes up the lines of ordinary residence, as a proper tenancy shifts O/R, to the authority on the spot, whereas a placement by the council (regardless of registration) is still done under the NAA, and carries on O/R for the originating distant council.

It messes up the DoLS framework, because DoLS can authorise detention in a care home, but not in a person’s own home; and therefore the detention of the very most challenging clients would have to be pre-authorised in every case, by the Court of Protection in advance…. and this unacceptable and unmanageable outcome, has turned deprivation of liberty into what’s now seen as mere restriction, by the CoP!
Supported Housing: what’s capacity got to do with it?

The English Care Standards Tribunal was not prepared to acknowledge that the question of capacity on its own had any significance for the legal difference between registered and unregistered accommodation, in its exploration of the problem, in Alternative Futures, back in 2003. It said, however, that people should not be moved into tenancy-based supported accommodation unless it is clear that they have had an opportunity to exercise ‘real’ informed choice. . ..see the Alternative Futures decision, July 2003 – which implied capacity, in itself, of course!

Later on, a High Court Judge held, in a follow-up judicial review of the CST’s own decision, that ‘choice’, in the sense of liking or preference, was legally irrelevant to the registration question. The test was simply – is the reality of the arrangement a contract for or the provision of care together with accommodation? (Moore v CST.)

The Court of Appeal upheld this approach – reiterating that one needs to decide what is covered by the arrangement – in that case, the tenancy contract, assuming the person’s capacity. In that case, it clearly included services which – in reality -amounted to personal care, even though they were called ‘support’. Andrew Moore’s capacity was not in issue, interestingly.

What happens, when it’s not the tenant who signed the tenancy?

A person who actually signs a tenancy is entitled to the presumption of capacity. Even if it is rebutted, and they turn out to have lacked capacity at the time, the contract is not void; it’s only voidable at the choice of the now acknowledged to be incapacitated person or a deputy or attorney or litigation friend. That means that they can get out of it if they need to, but for so long as it’s wanted, then it’s still valid and binding on the landlord, so the person is as secure as the class of tenancy that’s been signed. That is the kindest interpretation one can put on annex B in the original Valuing People guidance – the unkindest, is that the authors knew no law at all.

But if someone else signs for them, without legal authority – there’s no presumption to be relied upon; it’s not the vulnerable adult’s tenancy. He or she may then be, at most, the tenant of whoever did sign, which has all sorts of implications for eligibility for HB. . ..e.g. where this is a parent or close relative – it may not be accepted as a commercial relationship for HB purposes – which would be very unfortunate indeed, for many families and people with learning disabilities.

If no-one signs at all, it doesn’t mean that there is no tenancy, but it then raises the question – is there any evidence that there was ever any suggestion of actual agreement, and if there is none, the asserted agreement may be void.

The only persons who can sign WITH legal authority are persons who have power of attorney for property and affairs, or those holding property and finance deputyship for the incapacitated person, or a single order from the Court of Protection covering the signing of a tenancy.

Why proper Supported Living schemes do not require to be registered as care home services

  • There is never a provision of care, together with the accommodation, in a properlyset up supported living arrangement.
  • One person (the adult service user) will have agreed to pay for the accommodation, and a different one (the council) will have promised to pay for the care.
  • Even if it is the same person (ie the tenant, using a direct payment, to pay the landlord for care), the two arrangements will not necessarilybe inter-dependent).
  • And the new CQC rules provide for a general exemption from regulation for any care purchased from an individual by an individual, privately.
  • The real point is, however, the tenant, by signing their consent to the contract, has provided him or herselfwith housing, i.e. by contracting for it directly (even if the LA has helped facilitatethat arrangement) him or herself.

What sort of situations risk amounting to care together with accommodation?

  • A tenancy which includes an obligation to pay for care or support which amounts to personal care;
  • A tenancy which you will not be given in the first place, unless you sign a side agreement for care services or support which amounts to personal care;
  • A situation where the local authority can compel a housing association to take anyone they want to be admitted, through 100% nomination rights, for instance, or otherwise leave the Association refusing to grant the tenancy, with empty accommodation.

 

In reality are there other risks, in the light of current guidance?

CQC’s current guidance is happily consistent with the law, in focusing on the possibility of ‘de facto’ as well as documentary integration of the care and accommodation arrangements. That means integration on the facts, and not just within the contracts or oral arrangements…

The real problem is that the guidance is weak on what ‘de facto’ integration between two organisations, or in one that does both the landlord and the care functions, but distinctly, would really look like, or how an allegation might be proven or disproven.

The obvious reason is that the whole thrust of government policy has been to get moderately and more than moderately impaired clients, into these facilities en masse so that block contracts can be secured so as to generate savings from the shared care element of meeting needs.

Consequently, the reality is that no-one ever gets a tenancy in a specialist LD supported housing set of units or flats UNLESS their care package has been agreed with the landlord or associated provider, even if the tenancy is a tenancy and the care contract IS properly separate.

If the contract is terminated for the care for whatever reason, the tenant will – in reality – be evicted at the end of the assured shorthold, because the landlord or associated provider absolutely needs the income stream from the specialist services for a new person.

And no council really wants to procure replacement care to go in to the old care agency’s BUILDING, not because they could not, legally, but because any new provider would run a mile from the aggravation, or charge a premium…

Lastly, when the occupation rights are on a joint tenancy basis and one person leaves, the only sort of person who is ever – in reality – offered a new tenancy is a person with compatible needs, and a need for a State funded care package, which gives the lie to the suggestion that these are normal unintegrated arrangements.

In going forwards, perhaps the government and CQC could consider whether we need the regulations and guidance to public, councils, providers and the inspectorate alike to make it clear that separation of the purchasing arrangements for care and accommodation will be sufficient to avoid registration as a care home service and that no more mention should be made of de facto integration.

The existence of a proper tenancy contract would still not be the be-all and-end-all – it might still be a sham, still not be signed with legal authority, or the mere support services and charges included as conditions of the tenancy might still really be personal care ie full on bodily functions input – so the offence of running unregistered would still have meaning.

But sorting this all out in regulations or amendments to the legislation and guidance, so that practice works within the legal principles laid down by the case law, and then TRAINING area offices on why we are where we are, with the law and amended guidance, could mean that provider organisations would not have an unpredictably varying regulatory burden or hoops to go to through, just in order to keep on doing what they’ve set up precisely in accordance with government policy.

The extra benefit would be that it would also assist in clarifying guidance on restrictions vs deprivations of liberty in tenanted settings with locks, keypads and curfews. This would mitigate the risk of independent living set-ups being accused of depriving people of their liberty – without authority, and outside of DoLS when they are mainly probably just doing proportionate restrictions…with which no-one would disagree.

Grounds for termination of the right to occupy – why it might go to the question of integration

A situation where the domiciliary care provider can manoeuvre the landlord into giving notice to the tenant just because the dom care provider has lost the contract or does not want to continue any longer, would be dubious.

The tenancy and its continuation must not turn, in any sense, on the willingness of the tenant to have care, pay for care, accept care, let alone accept the care from that particular 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 personal care, within an unregistered establishment, if the accommodation rights are all wrapped up with receipt of that degree of care.

Establishing Capacity for a tenancy

In this particular context, making a valid contract probably means understanding the essentials of ‘the deal’:

  • The basic concept of money – i.e.

The concept of owning one’s own money;

The concept of exchanging one’s own money, in return for something;

  • The concept of basic social rules (even if the person needs help to pull off following them) – i.e.

No damage to the property;

No violence towards others living there;

It is not likely that one needs to know that one has the right to exclusive possession (the posh term for being entitled to exclude anyone from the premises) as the defences under the MCA for best interests intervention effectively render that right unenforceable, when exercised for MCA reasons.

It is not logical to consider that it all turns on needing quite a lot of help in order to keep to the promises above, regarding reasonable behaviour. An ordinary tenant may break the covenants, but that doesn’t make people think that they lack capacity to make an agreement.

If it’s minute by minute supervision, on a 2:1 basis, it’s disingenuous to call it independent living, but, subject to getting deprivation of liberty authorised for the client, through the court, or everyone agreeing that it is merely restriction of liberty, in Cheshire West terms, there is nothing actually illegal about it.
People in independent living these days probably divide into four groups

  • Those who did understand what they signed at the time.
  • Those who didn’t, but could’ve been helped, if the sector had been properly informed.
  • Those who couldn’t and can’t, no matter what efforts might now be made – they need a deputy to sign for them (a ‘short order’ form of Type III deputyship works to give authority to sign a tenancy) or to be part of a bulk application for a single order from the Court of Protection.
  • Those whose care needs are actually inimical to the independent living culture for the others there – i.e. those who need minute by minute supervision to keep them and others safe. As said before, it might be the only thing to do for certain people, but it involves restriction of liberty of such a degree that those organising it would be imprudent notto treat it as presumptively deprivation of liberty, and go to court for explicit authority as necessary in the person’s best interests. Cheshire West is the current last word on this.

Most recent cases on the issues:

In R (Buckinghamshire CC) v Kingston upon Thames Royal London Borough Council and SL and others, the local authority applied for judicial review of a decision of the defendant local authority to ‘move’ the service user into a tenancy in its area.

SL was a person for whom Kingston was financially responsible. In 1995, when SL was nearly 21, the Defendant arranged a placement for her at a care home in Buckinghamshire. Following a review of her placement, in 2009, SL moved from the care home into a bungalow. SL occupied it under the terms of an assured shorthold tenancy. Kingston did not inform Buckinghamshire that SL would be moving into its area. Kingston initially funded the care, but shortly after the move, Kingston asked Buckinghamshire to take over the funding, alleging that SL had become ordinarily resident in its area. Buckinghamshire refused, and sought a declaration that the decision to move SL was unlawful and that Kingston should indemnify it for any expense it had incurred or would incur in consequence of that decision!

The Court held that Kingston did not owe any duties of ‘fairness’ to Buckinghamshire to notify it of SL’s proposed move, to consult with it, or give it an opportunity to participate in the decision. Kingston was under no duty to act fairly towards Buckinghamshire when carrying out the community care assessment of SL, or before making any decision consequent to it. Its duties towards other persons or bodies were limited to those stated expressly in s.47 of the 1990 Act, in the Community Care Assessment Directions 2004 and s.21 and 26 of the 1948 Act.

However, the claim did succeed on a different ground, namely that Kingston had acted unlawfully in accepting the views of the manager of the domiciliary care agency supporting SL that she would be entitled to housing benefit in the supported living placement without making enquiries to determine whether this was the case. Her eligibility for housing benefit was crucial to the scheme of moving SL to the bungalow and it was perverse for Kingston to have proceeded without making further enquiries about entitlement to housing benefit. “It would have been perverse for the Defendant to arrange for SL to enter into the tenancy without addressing the issue of the payment of rent at all.”

What about capacity?

Buckinghamshire also argued that SL was neither informed of, nor understood the legal consequences of her move to the bungalow.

“The evidence in relation to this issue comes from Ms Karen Lane who is a director of NSE. In paragraph 10 of this witness statement Ms Lane provides information as to what occurred in the days immediately prior to SL executing the tenancy agreement. Her understanding is that Gary Scott of Zetetick met with SL and the other woman with whom SL was going to share the accommodation at the bungalow to discuss the tenancy agreement. Two such discussions took place, one very shortly before the tenancy agreement was executed. Further, on 29 September 2009 SL and her co-tenant met with an independent advocate from an organisation known as People’s Voices to discuss the nature of the tenancy agreement. The evidence demonstrates … that proper attempts were made by Mr Scott and by an independent advocate to explain to SL the nature of the document which she was proposing to execute.

Ms Richards, on behalf of the Official Solicitor, submits on instructions that SL lacks litigation capacity but that the issue of whether SL had the capacity to enter into a tenancy as at September/October 2009 is more debatable. That said, the view of the Official Solicitor is that the essentials of a tenancy (as opposed to the details thereof) are not complex. Those essentials are that the tenant occupies accommodation, pays rent in respect of that accommodation and has an obligation to look after the accommodation.”

  • “…The general tenor of the documentation which the Defendant generated suggests that those close to SL – namely her mother, Ms Treloar and members of staff of NSE believed that she had such capacity. That belief was reasonably held. Ms Treloar and members of NSE, in particular, had a wealth of information about SL and considerable experience in offering her assistance and support.

In the light of the evidence available I am satisfied that SL was informed of the legal consequences of the tenancy agreement… and that those whose task it was to safeguard her interests believe that she understood its consequences.

In the context of this case I do not think that it was incumbent upon the Defendant to do any more than it did to satisfy itself that SL understood the basic concepts associated with her tenancy. The Defendant sufficiently informed itself about SL’s ability to understand the tenancy agreement. It was not irrational or unreasonable for the Defendant to believe that SL understood the essential elements of the tenancy and, in those circumstances, the Defendant was not unreasonable or irrational in not instigating further inquiries into her understanding.”

 

Wychavon v EM – a case on HB and tenancies (HB) (2011) UKUT 144

A 20 year old severely learning disabled woman lived in a house bought on mortgage by her parents; they charged her rent (about £700 a month) based on a supposed tenancy between her father the landlord, and herself, as the tenant.

The agreement was not signed; instead a sentence had been written against the space for the signature, by the Father, explaining that she could not understand or sign the agreement. The agreement was made in 2009 but – as it happens – the mother acquired deputyship in 2010. The HB staff decided that there was no agreement; so there was no liability to pay rent. The first level appeal tribunal had held that the parents could bind the daughter, although this would make the contract “voidable”.

The further appeal tribunal agreed that the absence of a signature in and of itself, is not fatal IF and only if there is [some evidence of] an agreement underlying the deal. The appeal tribunal agreed that the question turned on the lawful authority of the parents to bind the daughter, and the decision-maker reviewed the law and set the first level tribunal right! There is no such authority! Best interests does not do it for the validity of a document which requires actual agreement!

What did Judge Mark say was the law?

English law holds that even if there is no evidence of consensus, not even the appearance of a contract, it is void. This will sometimes be the case when the other party is honest about appreciating that the other person lacked capacity to agree the essentials of the deal. The decision-maker said that the same would be the case if it had been a licence document that had been used; you need capacity to agree to one of those too.

In this case there was no feasible appearance of a contract between the daughter and the father at all – given what he’d said on the document about her incapacity. It was simply void. Of more help though, was the view of the appeal tribunal on the propriety of the arrangement, if only the deputyship had been signed: it was commercially necessary, not a contrivance, and had been carefully discussed with the LA, and had it not been for the capacity point, it would have been ok to claim HB.

Since then, Judge Mark has put himself even more ‘right’, by setting aside his own judgment and confirming that the common law of necessaries still exists in so far as s7 MCA might not actually cover accommodation, as neither goods nor services, so now, all occupiers supplied with accommodation need to pay a reasonable fee for the privilege – and can therefore claim HB, even if they have no capacity to have signed a tenancy.

Thank goodness for law, on must surely think? As opposed to smoke, mirrors, and government ‘policy’!

 

What has the Court of Protection been doing about all this?

In November 2011, the CoP issued guidance, which said, effectively: “A person who lacks capacity cannot have a tenancy. However, that does not preclude someone lacking capacity from taking one on… [what that was supposed to convey, is anyone’s guess].

In Feb 2012, however, the CoP guidance was updated to say this:

When is it necessary to apply to the Court of Protection?

  • If a person lacks the mental capacity to make his or her own informed decision about whether or not to accept a tenancy offer, then an appropriate person can make the decision through the best interest process outlined in the Mental Capacity Act 2005….
  • Although the Mental Capacity Act 2005 enables the making of certain decisions without the need to obtain any formal authority to act, it does not extend to signing legal documents, such as tenancy agreements.
  • In some circumstances, landlords may be willing to accept unsigned tenancies, but this guidance applies to the situation where the landlord wants the tenancy to be signed. Even if the landlord will accept an unsigned agreement, it would also be appropriate to make an application where there is a dispute or if it is not clear whether the tenancy offer is in the person’s best interests.

So what is going on?

  • A best interests decision-maker can PUT someone physically in the accommodation, but cannot get them tenure.
  • Tenancies don’t have to BE signed, to be valid.
  • A tenancy can’t be valid if there is no capacity on the part of the tenant, but the best interests decision maker will have a defence if anyone challenges the rectitude of putting of the person in to the accommodation (or more probably, against any allegation of wrongdoing in removing a person from their previous accommodation….).
  • That still doesn’t help the fact that Best Interests cannot make something invalid, into something valid. The covenants won’t apply; and the CQC could treat the occupation as provided together with the care, if the provider is one and the same, meaning unregistered accommodation is being criminally provided.

How to make an application in bulk!

The court is prepared to deal with all of the adults required to sign the tenancy agreement(s) in a single application. This is on the understanding that the only order required from the court relates to the tenancy agreement and no further directions, for example the appointment of a deputy, are necessary. The court will require:

  • A single COP1 Application form setting out the order or declaration required with a list of all the adults required to sign the agreement annexed;
  • A COP3 Assessment of capacity for each adult. The assessment should deal specifically with the adult’s capacity to sign or terminate the agreement;
  • A COP24 Witness statement for each person setting out the circumstances behind the moves and confirming that a best interests assessment has been carried out, including consultation with close family members, or people in close contact with the person, where applicable.
  • An application fee.
  • A covering letter clearly stating that the applications relates to tenancy agreements in respect of more than one person.

The application form should request the court to make a single order or declaration that it is in all the adult service users’ best interests for the tenancy arrangement to be signed or terminated on their behalf. The procedure above can also be adapted for applications relating to individuals.

How will the court deal with the application?

When the court issues the application, the applicant will notify each adult personally using form COP14 and provide evidence that they have done on form COP20A. Once notified, the person will have 21days to object or respond to the application. If the court receives an objection to the application it will deal with it as a discrete issue, in accordance with the usual procedure. Once the 21 day time limit expires, the court will issue a single order that deals with the tenancy matter for all the service users.

Will the court remit the fee?

No. The court is only charging a single fee for an application that relates to more than one person and will not remit fees in relation to bulk applications. The applicant is responsible for paying the fee, which must accompany the application. If the application relates to a single individual only, then the usual policy on fee remissions and exemption will apply.

 

 

 

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