It makes obvious sense to most of us, we think, that our needs depend to an appreciable extent, on our environment, and our community, and what’s available locally. It is equally obvious that if we’re 300 miles away with just a vague interest in going to live on the other side of the country the social work workforce from our hoped-for destination authority isn’t going to be exactly keen to come out to see us. Not unless we are on the coast and it’s summer, or Knightsbridge in December, perhaps…
However, people who depend on social services funding for a sustainable civilised life style, despite their difficulties, have as much right as anyone else to decide where they want to live. How are they supposed to know what they’d get, if they made the move, if they can’t be assessed before they make up their minds and do the irrevocable, like surrender a tenancy, or sign a new one?
Just like for anyone else, really being entitled to go live anywhere one fancies, depends (in the real world) on being able to afford the rent, and seeming like an acceptable tenant to a landlord – a landlord who owes the prospective tenant absolutely no duty of care in relation to sorting out care services that the person might need to be in place when s/he makes the move. If one isn’t renting, but buying, real practical freedom to go anywhere is also subject to having a financial profile enabling access to a mortgage for the purchase price of the property – or having access via friends, relatives, contacts, to accommodation IN that other area, courtesy of a private agreement.
(In passing, we are thinking what a VERY good use of a network of disabled people that would be – swaps of spare rooms, if anyone has one, in order to build local connection and housing rights and ordinary residence in ORDINARY accommodation…. but that’s for another day…)
That said, the Care Act made significant progress in the field of who deserves an assessment from whom, in the context of moving from one area to another.
The two provisions (s38 and s39 cover two different situations. In one, continuity of responsibility of a council for paying for care, is imposed, even though a person chooses to move out of area. And the other provision introduces the notion of continuity of the care package – well, at least of the sort and scope and level of care as one has had before, when one moves somewhere new, unless or until the council in the ‘new’ authority assesses that person properly as no longer eligible, or no longer needing what was previously needed, with a rational and written justification for differing from the last authority.
The first situation (continuing responsibility albeit out of area) is where ‘specified’ accommodation is agreed to be needed before the person goes, and that is basically the case where the person needs a lot of supervision in accommodation regarding their personal care. The only kind of setting where that is possible, in terms of space or logistics would be in a care home first and foremost, or in supported living (or in some kinds of Shared Lives arrangements), even if the person is not so needy as to need care in a registered care home.
The law says that in such cases, the council that WAS responsible for care, by reference to ordinary residence principles before the move, must go on being responsible, even if the person is moving into tenanted accommodation elsewhere, and that move is what necessitates a large care package. The logic is that the old council will be remaining liable, so would be reviewing the person anyway in light of the planned destination’s local care market realities.
This outcomes only applies though if the council one is leaving has recorded in a care plan that the way the needs require to be met is IN specified accommodation. We think that that’s a massive loophole in the scheme, when most councils’ forms for care planning don’t even have a box into which one would put that all important sentence. And that’s before one considers how hard it could be to GET a council to put that down, when it’s not had to provide a large package before, because of informal help, but where the move itself will terminate that informal input. Finally the Care Act is obscure here, on the extent to which the client can have a choice of provider in that new area, if the cost THERE differs very much from the equivalent cost of a package in the area one is leaving. CASCAIDr thinks that the only comparison the responsible council can do is between SUITABLE appropriate care in the destination area, and the provider preferred by the determined ‘mover’….and that will be hard for an out of area commissioner.
The second situation covered by the Care Act applies where a person (whether or not they have care needs already) decides to move to ordinary accommodation elsewhere, or is moved to it by a relative, with the person’s capacitated consent, or acting under best interests.
In both those situations, the law gives that person a RIGHT to be assessed BEFORE coming, so long as one has a genuine intention to come.
It is completely ambiguous in the Care Act as to the right approach to take when the person had no such intention for themselves, but their relative took the initiative because of incapacity, but it is a fair bet (from the approach taken in ordinary residence cases) that other than where it was abusive to remove the person from their previous setting, the new council must pick the person’s care needs up.
The theory is that a person will actually GET their assessment before they’ve made a final decision, so that they can, like anyone else, make a proper decision, well informed, based on knowledge of whatever budget or service or input they would receive, if they made the move.
In theory again, it would be possible and SENSIBLE for each area to have a company that could be contracted to do assessments for people who are planning on moving out of area – or who have been moved out of area such as CHC patients who are up for review, for instance, and for people who are genuinely considering moving long distances (and for people with no plans to move, living within that area too, for the local council. when it is pushed for staff).
But that is not what is happening.
In practice, people get told that when they arrive, the new council will sort out a similar package of services to what they’d had before, and then put them down for an assessment within the next 3 months. That doesn’t deliver on the policy intention to enable people with conditions or disabilities that compel dependency on the State for services, to be free to make decisions as to where it would be best or make the most sense to live. But it does ensure that nobody’s left high and dry.
What is clear though, is that it is not acceptable to say to a person you cannot have an assessment before you come. Most people would accept the desirability of waiting until they are settled in, but some will absolutely need to do the thinking in advance. For those people, it isn’t good enough to say ‘What we do is this, so just come on down, and cross your fingers‘. The only remedy for that sort of a stance would be an injunction in judicial review proceedings enforcing the statutory right in s38.
In CASCAIDr’s view, the very furthest a council can go is to say please wait until you at least know where you are going to be living, or in what sort of accommodation, and then we’ll be able to do an assessment – as a sort of definition of what reflects ‘a genuine intention’ to make the move. There is rationality in the notion that nobody intends to move until they know about their housing situation in the desired area. A council can not say ‘We won’t even meet your needs if you just come down and live as a single person, because we need savings from your living in group care’. It can say ‘You know you need to meet certain criteria to exercise housing rights in this area, don’t you? (that is, to people who don’t have relatives with whom they can go and live).
Housing rights are limited, in Housing law in this country.
There’s joining the housing register, for a tenancy in affordable housing, which is harder now than it used to be, because councils are allowed to add criteria regarding local connection to their letting schemes, for public sector owned accommodation or housing provided by registered social landlords. In lots of councils now, you have to have been there for a long while before you can GET access to public sector housing through the housing register.
Specialist supported housing which is not in the control of a council on the surface will often be subject to such control through nomination rights behind the scenes, which were granted when the RSL was given the land to build adapted accommodation, for instance.
And here is the rub: social services is not bound to FIND, secure, or procure, suitable accommodation in the ordinary housing sector for people who need it, even if they have disabilities or health conditions. They can help one to get it and influence one’s chances by way of supporting corroboration of one’s account of one’s needs, or through discussions with the housing department about why your current accommodation does make you homeless etc, and why some of the council’s allocations for adapted housing should be regarded as in the gift of the local authority, as between the two departments. All of that is helping the person to help themselves to get suitable accommodation. But the bottom line is that a tenancy is not something that is offered by a social services department under the Care Act. Even special specified accommodation where personal care will (by definition) be available for a person in the place where they are living is not something that the council has a duty to provide, even if it has a duty to pay for the care services, once one has taken up a tenancy there.
So it is a myth that one has to move first, before one is entitled to assessment, but in practice, the pressure will be on to do so.