CQC’s ‘no more than 6 people in a care home’ policy target scrutinised by a Tribunal

The First-tier Tribunal has ruled in favour of the Care Quality Commission’s (CQC) decision to refuse an application submitted by Lifeways Community Care (Lifeways) to vary a condition of its registration as a care home provider.

Lifeways (a care provider looking after people with complex care needs, including those with a learning disability, autism and mental health issues) had applied to add an additional location to its list of care home registrations. [Since services are listed by reference to address, we do not know what registration or condition was being varied, and one can’t tell from the actual case report.]

CQC had felt and decided formally that the appearance of the proposed service at Springside, the application site, did not match with the residential area as it was located within an old NHS care home site and was too institutionalised in appearance ever to be made more homely.

The proposed care home consisted of a series of adjoining single storey buildings: a. Bungalow 1 – offering 2 en suite bedrooms and kitchen and living room facilities. b. Bungalow 2 – offering 3 en suite bedrooms and kitchen and living room facilities. c. 3 self-contained flats, with their own front doors. Residents would share a multi-function room, a sensory room, a conservatory, a laundry, a medicine room, a large communal garden and a large car park.

There was a supported living service on the same site run by the same organisation – very proximate.

The proposal for the care home to accommodate 9 people was regarded as not promoting integration with the local community – even though those tenants in the supported living units would have been their neighbours and shared the garden and communal facilities. Those would be neighbours sharing their own neurological and mental conditions, of course.

Policy for CQC reads as follows, with regard to Registering the Right Support:

e. New [care home] services should not be developed as part of a campus style development or congregate setting.

f. campus style development is defined as “group homes clustered together on the same site and usually sharing staff and some facilities. Staff are available 24 hours a day”

g. CQC would adopt ‘the presumption of small services “usually accommodating six or less”’ in line with current best practice [for care homes] in Building the Right Support, albeit this not a ‘rigid rule’

Walsall Council had been consulted and were supportive of the proposed application (no doubt because they were the people actually implemening s117 discharge plans). A witness was concerned that the Council had not taken into account the policy and guidance set out above.

The Appellant planned to offer ‘a step down pathway to an individual tenancy’ for those ‘looking to step down from hospital settings or at risk of placed under section’. A witness was concerned that this might be in effect “an emergency service to prevent hospital admission.”

The NHS Walsall Clinical Commissioning Group had not been consulted about the proposal, but indicated that they would have preferred to commission places in small settings consistent with the policy in RTRS.

Mr Raymond James CBE, the National Learning Disability Director and Senior Responsible Officer of the Transforming Care Programme, NHS England explained the nature of and background to the national policy and guidance set out above. He explained that he had the most senior public service role in England devoted to people with learning disabilities. He said he was a party to the writing of the RTRS and that he was “one of a few number of people” who knew the national policy and guidance very well.

Witnesses for the CQC said this:

  • “The role of public policy is to ensure that people lead the right type of life. If we allow compromise because it’s the only thing available rather than what is right; that would be wrong.”
  • “If you register an inappropriate model because there isn’t an alternative at the moment, it exists forever and sucks in more people.”
  • The Regisration Lead’s press statement echoed this sentiment too: “If we accept Good Enough we can’t transform the service and achieve the necessary change.”

When asked “why did the CQC register ANY care homes” another witness replied, ‘Good question”…

One answer, of course, is that the policy of getting the private sector to buy houses and put them out on a long lease to housing associations or voluntary organisations for maximising access to unrestricted Housing Benefit just isn’t working, so people are stuck in hospitals.

Some of the very same councils and CCGs who owe a duty to do s117 discharge planning have taken against ever offering guarantees of voids and housing benefit deficits and simply pass that on to social workers to explain.

Commissioning is the servant of care planning, not the master of it. It’s the means by which duties based on professional judgement are supposed to be implemented. And yet despite the statutory powers enjoyed by both CCGs and local authorities, to offer such financial assurance in what is undoubtedly a shark-infested but risk-heavy sector, these stances are developed and imposed top-down in a way that is often uninformed, inflexible, and without consideration of the hugely relevant considerations that flow from such a stance: namely, the continued moldering IN MENTAL HOSPITALs AND ATUs of people who do NOT, in clinical professional judgement terms, actually need to be there at all any longer. But who will do, if their hopes of a good life in an ordinary house are dashed time and time again through faceless and unaccountable decision-making.

The closing submissions in this case by Lifeways were summed up as follows: benefits of the scope and size of the property that were great for some people’s conditions, would fall away, and more people would remain in hospital because the CQC/Tribunal deemed the aesthetics and the fact that services would operate side-by-side to be too risky. “This is a case where the decision must be made taking into account the realities for providers, commissioners and service-users in Walsall. All of these must not be overlooked in the search for perfection.”

The Tribunal was not convinced, however, and upheld the position of the CQC. “The national policy and guidance is (and is supposed to be) aspirational. It seeks to transform existing care provision going forward. The panel accepts that the evidence establishes that the small domestic model of care promoted by the policy and guidance is (despite the challenges involved) realistic, workable and achievable”.

We are not opposed to aspiration in adult social care, CHC or s117 care planning and we do not KNOW what the reality of this environment might have been like. But it all costs money, and no political party seems to be prepared to acknowledge that, Boris Johnson having gone so far as offering £72.3m to build a new adult mental health inpatient unit, rather than for voids and guarantees of HB deficits in his honeymoon period.

What a Kafka-esque world it is that we live in, when this sort of thing happens – even factoring Whorlton Hall embarrassment into the situation, surely CQC and national leads cannot be blind to the facts about EQUALLY BAD things going on regarding the institutionalisation of supported living, all due to austerity and lack of legal literacy!?

Talk about registering the right support!! Why are not the majority of those tenanted settings properly seen as care homes, when these days it’s common for the care provider to have been persuaded to enter into a 25 year guarantee of voids and HB deficits with the housing provider, but will have been given the sole nomination rights to the tenancies in return? Have we not all gone MAD?

Why is that sort of a set-up not obviously the de facto provision of CARE TOGETHER WITH ACCOMMODATION, if the only way one gets the care is having a tenancy there, and the only way one gets that tenancy, is by accepting care from a provider in situ, alongside co-tenants that one has not ‘chosen’ – any more than one would ‘choose’ (as opposed to tolerate) patient to lie next to in a locked ward?

Why are providers assuming that they even have to offer shared care savings to commissioners, for looking after people in group houses? – (and why are commissioners daring to tender for providers on a block contract basis?) – when the Care Act makes it clear that pooling a personal budget is something that can only happen when and if clients consent? How’s that supposed to be happening then, in this particular sector, incapacity being as widespread as it is, albeit in an issue-specific sense?

In this particular Tribunal case, a Lifeways manager said she was concerned about the preference for supported living because of the lack of oversight and governance of the premises, where only the service is registered, and not the service within the particular premises. She was worried that this would create “mini institutions behind closed doors.”

Oh, so true, and if only parents of people in ATUs realised this fact of life!

It would have been interesting in the Lifeways case, we think to subject the Supported Living facility next door to a registration law driven scrutiny: had the tenancies been advertised on Spare Room? Did the people slotted in there have any choice? Would they be offered direct payments under the Care Act or s117 so that they could each choose a different provider? Would there be laminated signs up saying Staff ONLY on doors off of the communal areas in that building, do we think? Would people there have individual personal budgets or were larger and larger chunks of their day being given over to a block contract for more and more shared care, that isn’t even purportedly commissioned for Care Act or s117 MHA purposes?

Providers of supported living may be interested to know that there is no rule that no more than 6 people can live in a house, as sharers, and that the Housing Provider does not HAVE to be separate from the Care Provider. CQC rules very carefully say that the elements of the care and accommodation arrangements must be separate, the provision must be separate but not that the PROVIDERS must be separate. That is news to most providers of supported living, however, who are told otherwise by often poorly trained inspectors.

CQC LIKES to see a differentiation but cannot compel it. Separation of landlord and provider of care is not a necessary element of lawful unregistered provision but neither is it a sufficient for avoiding care home registration, if in fact either the way the tenancies are worded, or the way in which the arrangements actually WORK, amount to de facto integration and interdependency of the care together with the accommodation arrangements.

CQC does not seem to wish to engage with this issue in the context of what’s actually happening in the Supported Living sector … in our view, obviously, because it is government policy generally for people with LDs who were decanted from hospitals, and for Transforming Care targets, and because CQC is funded by central government.

It was CQC’s own predecessor (pre CSCI, ie the NCSC) who established the law about the meaning of care together with accommodation in the Alternative Futures case in the early 2000s …. taken together with the Andrew Moore judicial review of the Care Standards Tribunal’s decision at that time.

If people in ATUs, needing accommodation, can only depend on the grace and favour of tenancy nominations from social services, or from those providers who are being pressed to take lower and lower fees for the care, by macho commissioners, in which deals the providers can’t any longer hide the element for the voids guarantee because commissioning has become so budget driven, these luckless people may wait for ever to access this special type of setting.

Who else could offer these guarantees? Councils and CCGs could and did used to do this. They still can, under specific statutory powers; it’s even mentioned in Transforming Care guidance.

The illegality that we see all around is the fettering of the discretion to even consider it, and never any giving of reasons for NOT doing it – no balancing of all legally relevant considerations for the exercise of discretion – given the iniquity of the lifestyles of the clients at the sharp end, in NHS funded ATUs where the impact on the continuation of wellbeing and family life arising from the conditions and the culture, surely cannot be ignored.

The fact that a clinician in a hospital or ATU will say that ‘X is fit for discharge … IF there is a suitable place to live, but NOT if there is NOT, is the proof that the person’s aftercare purpose can’t be met without housing being PROVIDED. If X is going to have to sign their own tenancy, and only in a place where x is signposted to by the s117 team, that’s absolutely fine if they WANT to, but when they lack capacity to make that choice, there’s a duty to provide that can be managed through Deputyship and guarantees/grants from the State, on pain of the only other way being direct property purchase and placement with a prohibition on care TOGETHER with accommodation, to stay within CQC registration law.

We would be asking, in litigation, if we ever have to go that far – how can it be using ‘best endeavours’ not to make a grant/guarantee and say no to purchasing property, if that leaves a person in an ATU in the meantime?

We have no doubt that people in this business can make fabulous profits by taking the responsibility for caring for people who pose a risk to themselves and others. No s117 liable commissioners want the trouble and the duty of care in negligence law that comes from being a direct provider. So there is real business acumen in the position that ‘If we Build It, They Will Come’ – because once a facility exists, commissioners can’t say it doesn’t exist, and will find it harder to resist judicial review for not purchasing it.

We are not to be taken to be embracing profiteering: competition should be enough if the sector is knowledgeable about public law duties to provide for packages in a timely way to support hospital discharge, after all.

But those very same sorts of canny providers will be charging the council £13,000 per week for inhuman and unacceptable standards of care for private hospitals as well, because s3 Mental Health clients cannot be denied a bed if they need it.

What hope is there for integration if blinkers against realities such as this (let alone the HUMAN cost of delaying discharge for individuals and families), are allowed to stay ON?

We would remind readers that CHC, social care and s117 aftercare functions are duties, not discretions – and that the duties include provision of accommodation, even if at costs well above locally imposed rates, although not crazy prices, when necessary in a care planner’s competent professional judgment, to deliver on the statutory purpose of meeting ‘primary health need’, eligible unmet care and support needs, or aftercare needs, depending on the status of the client in question.

The institutional madness of NHS England and the local government sector’s stance that people must just molder on in hospital for want of housing – and that clever business people should be stopped through Registration Law and Policy from taking advantage of successive government’s policies that public bodies should be commissioners of services – and not direct providers, themselves – when the Bubb report on Transforming Care ITSELF relies on the private Real Estate Investment Trust sector to take a commercial opportunity by the horns and get into this sector, and when the RTRS policy itself says that the views of local commissioners need to be taken into account so that there is a match between supply and demand – is enough to make us all GASP at CASCAIDr.

The commissioner for Walsall Council in this case had been in discussions with Lifeways since 2015 in relation to the development of Springside. It was decided following conversations that instead of turning Springside into multiple supported living flats on the site, the area required accommodation for people with more complex support needs, particularly those looking to step down from hospital settings or who were at risk of being placed under section. He said that the proposed care home would offer an “integrated pathway” and a “journey” through the bungalows and independent flats “to supported living and independence” outside.

[Pretty much like a care village for the aspiring moneyed elderly purchaser, one might think, even though the nature of the tenure is very different!]

He said that “I am under pressure to get people out of hospital.” He said that he supported the policy of “do it once and do it right” but “we have to live in the real world.”  He thought the environment at the proposed care home was “welcoming and homely” and “the 10 bed model rather than a 6 bed model also enables some economies of scale.”

He said this – “I have put my head above the parapet to support this application … I didn’t realise it would take on a national importance.”

He also said “It could be perceived as a campus but I have to balance that with local need. We consider money and cost effectiveness and resources.”

He later reiterated that he supported the CQC and the national policy and guidance but “my concern is that I don’t have the luxury of seeing it that way…… I accept [Springside] is bigger than 6 beds and there is a risk. Ideally we would look at 6, but I had 12 to 15 people looking for places and I didn’t have other sites available, so I made an informed decision and looked at the risks.” He also said that he had “voids” in the supported living stock that he could not fill. It was possible to buy more houses but he had to consider the financial consequences.

The Tribunal said despite this input from the commissioner that there was inadequate evidence as to why there was a pressing need for the specific provision proposed and there was no adequate evidence of the lack availability of alternative provision that was in keeping with the national policy and guidance.

Many parents of people with Transforming Care patients waiting on a list that is not even being actively managed, would have begged to differ, we think, and been able to supply a picture of the never ending merry-go-round between housing providers, investors, HB officers and commissioners and care providers that they and their loved ones are put onto.

We think that legal literacy is the only way off of that merry-go-round, with clients willing to bring judicial review proceedings so that some of the assumptions being made are exposed. “There is nowhere suitable at the moment available” is the usual translation from the reality that

  • “There is nowhere suitable for this person to live, currently, where we’ve got a long term decent provider in charge, with any vacancy” or
  • “There is nowhere we can exert influence in relation to accessing a nomination” or
  • “There is nowhere for this person to live being run by the right kind of a housing provider such that HB can be got up to the necessary level to make the whole deal attractive and not turn on voids and HB guarantees
  • …which we just don’t DO any longer ‘because of austerity’ ….. (pregnant pause!).

CASCAIDr’s Litigation Strategy is looking for a case where the person in question will qualify for legal aid and their s117 team has refused to be drawn on just what sort of an open minded house-hunting trip they’ve actually been on before sending the social worker back to the Care and Treatment Review or discharge planning meeting to say ‘There’s nowhere out there right now’…

We do not think that a mental health Tribunal challenge is the right thing to do at all in that situation. We think that good old public law principles will put matters right a lot quicker, and illuminate the real meaning of the ‘best endeavours’ nature of the statutory duty in s117 Mental Health Act to plan and arrange for aftercare once fitness for discharge comes within a patient’s sights.

If a parent who is not afraid of victimisation or reprisals or abuse, who’s serious about using law to do good, would like to get in touch with us, we would like to hear from them, on belinda@cascaidr.org.uk

Read the First-tier Tribunal judgement findings in full

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