This one goes like this:
Of course we will meet your needs. But if you’re a person with a learning disability, our approach is that you have to live in shared care to get our services, even if that means moving out of your family home, into a tenancy that we’ve ‘secured’ for you…
If anyone says this to a person you’re concerned about, the first thing to do is to ask them politely
“Where’s the legal authority for the duty to meet need being conditional upon X moving, please?”
The care manager will probably say this “We are not obliged to meet a person’s needs in their own home”.
And that, as far as it goes is not untrue, as a matter of law. One can’t just say to the council, if one depends on the council for the money or the organisational skill to provide essential services ‘I want that one'(!) Nobody has a right to make the decision as to what to offer, FOR the local authority; the law is clear on that, post Care Act as well as pre-Care Act. The person’s right is to be at the centre of the process and to lay all their hopes fears and aspirations on the council; but the council only has to have regard to all of those things, conscientiously, and can take its own resources difficulties into account, in relation to HOW it meets needs.
The reason, therefore, that a council CAN say ‘we don’t have to meet your needs in your own home’ is that there are some people to whom it would offer care in a care home. A care home, please note, where it would make a local authority contract for care together with accommodation and ta-da – there would be the job done – a package offered that could either be refused or accepted.
The difference with a tenancy is that the council does not and cannot and may not pretend that it is the landlord – it may have done 99% of the persuasion of a housing association, landlord, or shared lives carer with regard to letting the person into occupation, but a tenancy is not a service that is part of social services’ functions under the Care Act. A council can suggest to a person that they might move; or facilitate their moving or even incentivise them to move, but not MAKE them move, other than by Mental Capacity Act compliant implementation of a move into a care home (for someone lacking in capacity in that regard). To make a person’s service conditional upon their moving – when that move would necessitate their agreeing to obligations in connection with a tenancy, covering rent, covenants and upheaval, is not open to any social services council. It is simply, not within a council’s gift to PROVIDE a tenancy, unless that council IS the landlord of the property. But even then, it is a really deep legal point as to whether a county council can hold land and OFFER a tenancy to someone when it has no housing functions: it is a question that involves the Localism Act which is well beyond the scope of these myths.
In the social care context, there is a decided case (Perry Clarke) in which Sutton was successfully judicially reviewed on the basis of the pre-Care Act law, for ‘requiring’ a man to move from his home of 4 years, where services had been paid for by another council, and now Sutton had been obliged to take over that role. The care provider who was being regarded as cost effective elsewhere had not been asked to complete a care plan, but nevertheless the council had said it would cut the budget provided to the man for the payment of the original provider to less than half, when the evidence was that the man’s seizures, although they only happened rarely, were unpredictable, even with the aid of technology. So there was no justification for assuming that less than half of the budget would suffice and the judge found against the council.
In that case the judge put the aspect regarding having to move out, down to an intolerable infringement of the man’s article 8 human rights, which is helpful, but not necessary, in our view, in light of the above analysis.
That is to say, the Care Act duty to meet needs is a duty, and can only be provided in one’s own home OR in a care home. If one is offered supported living, one may well thrive there and want to take up the opportunity – but supported living is not a service that the council can buy, so, it must be the law that one cannot be made to go into shared care.
Why do we say that it can’t be bought, when councils have whole teams of commissioners, buying what they call supported living? We say so because Supported Living by dint of clear registration law MUST NOT comprise even de facto integration of care together with accommodation; the fact that the tenancy comes from the landlord and is an arrangement in contract with the client, is what saves Supported Living from being registered residential care, and from which all advantages to do with the benefit system, then flow.
Once one HAS a tenancy, or has been let into accommodation (other than by way of a local authority contract with a provider, covering the accommodation as well as the care, which will probably then be called ‘support’), one may indeed receive services, but they are then home care services in what has become one’s own home, afresh, when one took up the tenancy.
The acid test of it is this: can you imagine a council saying to a couple of people who are married, despite their learning disabilities – one of you must now come with us and live like a student again, over THERE, in that shared house?
People put under pressure to move into shared care settings or told that they can’t have a direct payment for at least part of their budget in such settings, (or their families or formal advocates) need to say this, if the arrangements are not as desired:
- Under what legal provision is the Council acting, with regard to the tenancy you are proposing I sign? How is that, something that you are doing, please, to meet my needs?
- What power do you have, please, to make the duty to meet my needs conditional upon where I choose to live?
- Am I right that you will not put down on paper in the care plan that you think specified accommodation as defined, is the only way of meeting my needs, for care planning purposes? If you put it down you will remain liable for my care costs, wherever I end up, remember, under s39… but you’d still only be paying for my care, and not my accommodation, so I still don’t get why you think you can tell me to live with other people?
- What is it about my living in this shared care setting, now or in the future, that gives you any special power to regard a direct payment as not appropriate as a means of meeting my needs, please?