“If you go to live in one of the tenancies we can secure for you, you have to abide by house rules…”

….about friends coming back for the night – for instance.

Does that sound like ‘living in your own home’?

This, we think, is best described as a legal myth, but it is not a myth in practical terms, for young people with learning disabilities.  

What we mean by that is that whilst there’s probably no legal basis for requiring consent to that sort of a rule, and the imposition of it could be enough to make CQC interested in whether the care was being provided all bound up with the accommodation arrangement, the only way of accessing supported living, at least supported living as the sector thinks of it – where accommodation is only ever occupied by people with disabilities that are compatible – may well be by agreement to it, by oneself or someone else.

Let’s focus legally for a moment: where would these rules be coming from?

The only way people can regulate the use of a person’s room is through a contract. A licence, or a tenancy.

So if your parents let you live in the house after you are 18, you are there on a licence, either paying a licence fee or not – but it’s their house, and they are in charge of it. You have resident landlords if you want to be formal about it, but the most protection you have is 28 days notice. That’s housing law. Even if it’s not written down, house rules like that would be up to the house owner, and be part and parcel of the accommodation arrangement.

Likewise, people who live together might agree among themselves, informally, how to regulate the use of the space for comfortable co-existence, but we doubt that this is what happens in practice, in supported living.

If a person is living in a shared lives household or a  house in multiple occupation, they might have a formal and paid for licence, or they might have a tenancy – and the same would be the case in most supported living settings.

If the accommodation in question was self contained, you would never find such a term in a tenancy, in our experience.

An ordinary landlord even of premises let to co-tenants (a bedroom each and shared use of the rest of the house) would be anxious to prohibit parting with possession or sub-letting, but it would be very unusual for a LANDLORD to try to regulate the sharing of a bed or a bedroom on an occasional basis.

If someone is faced with a document related to their occupation rights, with that sort of a term in it, freely agrees though, then they’ve agreed. No getting away from that. That’s the law of contract.

The impression is given by the above sort of a conversation that it’s the landlord who’s making it a condition. So, we can see that if you really want to move out of your parents’ home, or if you are really keen to NOT go back there, after residential college, this would not seem so very odd or so very serious to most such young people – the pros would outweigh the cons, perhaps.

But has the person freely agreed?

If you find this sort of a requirement in a licence or a tenancy – say in a shared house, (this could still be a tenancy of one room plus shared use of the rest) or a place that’s more like bedrooms off of a communal set of living rooms and a kitchen, (this is more likely to be a licence) you need to check what this is really all about.

The landlord may have been prevailed upon by someone else, to include some rather out of the ordinary rule in the agreement, about use of the room….and our concern would be that that may affect the registration status of the accommodation, because the law requires that tenure and care arrangements must not be mixed up and interdependent or one integral to the other.

Why would someone prevail upon a landlord to do such a thing?

It would probably be something to do with concerns about strangers in the house.

That might seem like a perfectly proper concern on the part of the local authority, given that it knows that all sorts of other equally or even more vulnerable adults may be moving into in the same household.

However, when one moves into a house share, in ordinary life, risk from other co-tenants’ associates is not something that one thinks about, or could lay at the feet of anyone else.

And the local authority, ironically, does not owe a duty of care with regard to who else is sharing – the local authority is merely providing care services to each person, living in their own individual homes. There is no duty even of disclosure on the local authority or even any right to disclose the person’s characteristics, condition or care needs to the landlord or to other co-tenants, not without consent, at least, or otherwise in a person’s best interests.

Since nobody would deny that there is a risk however, perhaps the real point is that there needs to be some supervision or support at night in case things get out of hand – with respect to anyone’s capacitated consent to whatever is happening, and THAT is what there is no money for, these days, or only enough for a sleep in member of staff, who doesn’t much fancy trying to stop people having SEX – so having a visitor for the night is what is then presented as ‘forbidden by house rules’, and why.

If the care provider or the local authority is saying ‘you can only go to this tenancy IF YOU AGREE TO THIS THIS AND THIS and THIS relates to personal matters, the chances are that the landlord is not imposing the rule at all – and these others – the council, CCG or care provider, have no source of POWER to make those requirements, in most cases we can think of.

The bottom line therefore seems to be that if you want to BE in supported living, you have some choices to make, for which the council is not responsible, (but it is, really, for all practical purposes, because it controls access to the properties through nomination rights…)

If you have capacity to make them, understanding that they are not the same kind of choices that you would be asked to make in ‘ordinary’ accommodation, but you also understand that you would find it very hard to GET a tenancy of ordinary accommodation offered, then maybe we are approaching the reality of the situation: the lettings world has not caught up with disability discrimination principles, and neither have individual landlords. But instead of flagging that up and encouraging people into ordinary tenancies, councils aren’t in a position to support people to live in genuinely independent living, because the savings from shared care are the only way to make meeting extensive but unpredictable needs possible – so that taking all that into account, one might well decide to take up what one was offered, on less than ideal terms.

However, if you lack capacity to make the decision to sign a tenancy and there’s someone else with power to do so, like a deputy, under CoP supervision, then that person must act in the best interests of the person and take their wishes and feelings into account. A parent or other relative may be delighted that these house rules exist in the form that they do, and not think about them from the perspective of a person who’s got a relationship going on with a partner – for personal or cultural reasons that aren’t abusive, necessarily, but just part of the mindset of having cared very much for a person with learning disabilities for the whole of their childhood and adolescence, going unchallenged.

In that situation, CASCAIDr does not know how any local authority, acting under the Care Act, could ever ‘meet needs’ even by facilitating access to accommodation through a tenancy, where that sort of imposition on personal freedom was in play, whilst purporting to promote well-being.

Either the person has got capacity to have sex, or not.

If the person has got sufficient capacity, it’s forcing them to have sex other than where their home is, as the price of getting into desirable accommodation – which has already been outlawed by the Court of Protection in a famous case, where the judge said that the council could not toll the bell of resources in relation to a care arrangement that denied the woman her basic human rights.

If the person has not got that much capacity we would be querying how much capacity he or she has understand the house rules in the first place, and the question of where these rules ‘lurk’ – and what the person’s other options really are. Which is why we would come back to the question covered elsewhere, ‘Is it lawful for the council to insist that I live in shared care, before it will meet my needs at all?’ to which the answer is no, in our view.