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“Thank you so much for your thoughts on our CHC predicament.  It was very detailed and was of great help.  I used some of its content with the solicitor to prepare the document lodging our appeal against the CCG to have an independent NHS England review.  I again thank you, the report helped me focus on the task and I have now a clear view on how we move forward even if the conclusion isn’t favourable.”

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R on the application of SH v Waltham Forest LB

Facts of the case

SH travelled to the UK in 2012 having fled trafficking for the purposes of sexual exploitation. She was granted refugee status in 2014.

She applied to WF as homeless in September 2014. WF accepted the main housing duty and after was eventually provided with permanent accommodation in Ilford in May 2016.

In May 2017, SH was served with a no-fault eviction notice requiring her to vacate the property.

In August 2017, SH was offered and accepted a property in Tottenham. SH and her daughter had considerable issues with the property, in particular the fact that the communal grounds to the flat being used as an open air brothel where sexual activity could be seen by SH and her daughter. Evidence from the school and a psychiatrist’s report had provided evidence on the effect on SH’s mental health and her daughter’s development.

In July 2017, SH approached WF asserting that she was homeless.

In October 2018 WF made an offer of a property in Kettering under section 189B(2) in discharge of its relief duty.

SH refused the offer.

The issue in dispute

The issue before the court was whether this was a re-application by SH, in which the main duty under section 193(2) was still owed, or whether it was a fresh homelessness application, in which case the ‘lesser’ duty under section 189B(2) (to take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least six months) was owed and had then been discharged once SH refused the offer.

Central to this issue was whether the offers of the properties in Ilford and Tottenham were made in accordance with the provisions relating to private rented sector offers, contained in section 193 (7AA) and (AB) of the Act.

The Law

The section 193 duty can be discharged under section 193(7AA) of the 1996 Act if the applicant, having been informed in writing of the matters mentioned in section 193 (7AB) accepts or refuses a PRS offer.

Thus, to be a valid discharge of the section 193 duty, the following conditions need to be met:

There has to be an offer of a property in writing, which warns the applicant of the matters in section 193(7AB), namely:

  • The possible consequences of refusal or acceptance of the offer;
  • The right to request a review of suitability;
  • The effect under section 195A of a further application to an authority within 2 years of acceptance of the offer.

In addition, the property has to comply with the conditions in section 193 (7AC) namely,

  • It has to be an AST for a fixed term of at least 12 months,
  • It has to be made with the approval of the authority in pursuance of arrangements made by the authority with a view to bringing the authority’s duty to an end.
  • The authority has to be satisfied that the property is suitable (section 193 (7F).

The Court’s decision

Given that WF could not produce a copy of the offer letter, the court concluded that the offer letter for the Ilford property had not been sent and therefore that the offer did not comply with section 193 (7AA) and (7AB) of the Act and that therefore the duty under section 193(2) was not discharged in May 2015.

In terms of the Tottenham property, the court found that the property was never suitable accommodation. The court stated that given the particular characteristics of SH and her daughter, the offer should never have been made. It therefore concluded that as the Tottenham offer did not meet the statutory requirements of section 193 (7AA) and (7AB) and that therefore the duty under section 193(2) was not discharged in August 2016.

The court decided that section 189B(2) did not apply to AH because she was still owed the section 193(2) duty following her original application in 2015. The application made in July 2018 was not a fresh application. By regulation 4 of the Homelessness Reduction Act Regulations 2018/167, the amendments made do not apply in relation to an application for assistance made under section 183 of the Housing Act 1996 before the 3rd April 2018.

Learning Points for Advisers

Most advisers will be aware that the Localism Act 2011 allowed for local authorities to discharge their main housing duty by offering an assured shorthold tenancy in the private sector for at least 12 months.

This decision illustrates the importance for advisers of checking that a PRS offer made in discharge of the main housing duty has been validly made, not only in terms of the suitability of the accommodation but also by checking that the contents of any offer letter meet the requirements of 7(AB).

This will be particularly relevant in cases, as with the above case, where applicants have been evicted from a PRS property offered before the 3rd April 2018 and are now re-applying as homeless to the local authority.

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Guiste v The London Borough of Lambeth

Facts of the case

This was an appeal by the appellant, Mr. Guiste, of a decision by the County Court upholding Lambeth’s decision that he was not in priority need for homelessness accommodation.

Mr. Guiste suffered from potentially serious physical and mental health problems. He had a thyroid condition called hypoparathyroidism, which if untreated by prescription medication, could lead to convulsions.

In dispute in this case was the seriousness of the appellant’s mental problems. On the instruction of his solicitors, the appellant was examined during a lengthy face to face interview by Dr. Freedman, a Fellow of the Royal College of Psychiatrists with over 20 years of providing reports for the courts.

Mr. Guiste had a history of cannabis use and there had been previous incidents of self-harm and suicidal thoughts. The psychiatrist’s report noted that the appellant suffered from anxiety and depression and was at risk of harming or even killing himself due to command hallucinations. He did not understand the importance of taking his medication and needed help from his mother to manage his finances. She concluded that, if made homeless, it was unlikely that Mr. Guiste would take his medication, his mental health would deteriorate leading to a greater risk of self-harm and suicide.

Lambeth “outsourced” the provision of medical advice in housing cases to an organisation called NowMedical Limited. Two psychiatric advisers employed by NowMedical prepared reports for Lambeth about Mr. Guiste’s application for housing, but as is standard practice in such cases, neither of them examined or interviewed Mr. Guiste and for an unknown reason did not take up the opportunity to discuss Mr. Guiste’s case with Dr. Freedman.

The Legal Test

The court accepted that the review officer, when considering the issue of vulnerability, had considered the correct legal principles as set out in Hotak v Southwark LBC and Panayiotou v Waltham Forest LBC, namely;

“The assessment should be based on whether when compared to an ordinary person if made homeless, the applicant would suffer or be at risk of suffering harm or detriment which the ordinary person would not suffer or be at risk of suffering such that the harm or detriment would make a noticeable difference to his ability to deal with the consequences of homelessness”.

Submissions by Lambeth asserted that the relevant question of ‘functionality’ is whether the applicant’s circumstances would affect his functionality so as to make a noticeable difference to his ability to deal with the consequences of homelessness.

The court rejected adding an extra layer of complexity into a test which is already far from simple. The judge confirmed that “Lewison LJ’s observations (in Panayiotou) on functionality were made in the context that there must be a causal link between the particular characteristic relied on under section 189(1)(c) and the effect of homelessness.

The decision

In his judgement, Lord Justice Henderson noted that the reviewing officer had failed in her review decision to provide cogent reasons for why she had favoured the evidence of NowMedical over the evidence of Dr. Freedman. This was despite the fact that Dr. Freedman was better qualified, had addressed her mind to the specific legal question, and most importantly, had based her opinion on a personal examination of Mr. Guiste.

The court found that such a failure amounted to a breach of the principles of rationality and fair decision making.

However, the court also concluded that, based on the evidence before it, that the issue of priority need must not inevitably be determined in Mr. Guiste’s favour. It therefore did not substitute its own decision of priority need, but instead ordered that Lambeth should reconsider the issue of priority need by holding another review by a different officer.

Learning for advisers

This case highlights the importance of advisers obtaining medical evidence from an appropriately qualified medical professional to support their client’s case wherever possible. It is also vital that the adviser sets out the correct legal test for the professional and asks them to address this directly.

This case also highlights that, in all but the clearest of cases, the courts will be reluctant to substitute their own decision for that of a review officer. The court’s role is as a guardian of fair and rational decision making rather than as an arbiter of the facts.

A homelessness officer is supposed to compare the specific applicant with an ordinary person faced with homelessness when considering vulnerability. 

Rother DC v Freeman-Roach [2018] EWCA Civ 368 held that the ‘ordinary’ or ‘average person’ should be considered to be ‘ordinarily robust and healthy’.

The Supreme Court, in the combined cases of Johnson, Hotak and Kanu, as to how to approach this question, held that a housing authority should consider whether the specific applicant would suffer or be at risk of suffering harm or detriment which the ordinary person faced with homelessness would not suffer or be at risk of suffering, such that the harm or detriment would make a noticeable difference to their ability to deal with the consequences of homelessness. Many homeless persons have mental health and substance misuse problems, but the test is not how would the average homeless person with these problems cope? That was the approach that Hotak in particular put an end to. It was then a very hard test to qualify as vulnerable, under, if one had to be appreciably worse than an ordinary homeless person, when an ordinary homeless person may have experience on the street, and a swathe of existing issues. So the mental health and substance abuse issues of many a specific applicant should be enough to make them vulnerable.

Experience on the streets might be used to suggest that their history of street homelessness without particular harmful effects makes that person less vulnerable than the ordinary person, but that would have to be considered on a case by case basis.

An ordinary person, if made homeless, might have an initial disadvantage, in terms of lack of experience, but that person is not going to have severe physical or mental impairments, or substance misuse issues which are foreseeably likely to raise a person’s level of vulnerability when living on the streets.

Geoff Davies, CASCAIDr commentator

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It’s down to you and you alone that I now have a fighting chance of ensuring justice prevails

“It’s been a long, hard, stressful, anxious and frustrating time for us all. Without your professional knowledge and genuine human kindness due to the passion you have for helping and genuinely caring for people like me, we would of had no choice but to give up fighting, a long time ago. 

It’s down to you and you alone that I now have a fighting chance of ensuring justice prevails. I really hope our complaint is upheld by the LGSCO not just for myself, but for the many others who are in the same situation as me. This proves there is at least a ray of hope!”

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I am convinced of the need to make sure that CASCAIDr is out there holding Local Authorities to account

“Please do not apologise for your request that we consider a donation.We’ve already agreed that we needed to do this in the light of your amazing support. Having heard you speak (which served to reconnect me as a social worker to stuff that I hadn’t realised I had lost sight of) I am convinced of the need to make sure that CASCAIDr is out there holding Local Authorities to account when the pressures of austerity tempt them to forget both the letter and the spirit of the Care Act. We will follow the link and get that done, with our sincere thanks.”

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You’ve given me the strength to put some commitment into sorting this out

“Thank you so much for your detailed email. I’m going to write a letter to social services. You’ve given me the strength to put some commitment into sorting this out. Thank you so much for your very detailed long response. That must have taken so much of your time to do. I’m going to donate some money to your extremely vital legal organisation – for people such as myself you’re an affordable lifeline.”

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Thanks so much for your frank reply

“Thanks so much for your frank reply. You are quite right that I could well have an axe to grind. I feel that I am keeping my sister’s best interests at heart and her husband is not; he has his own agenda – but how are you to know that, just because I say that’s how it is? I do appreciate how straight you are. It is all very sad. Of course I will make a donation. Your advice is great.”

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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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Care home at fault for terminating residence without notice, and charging incorrectly, the ombudsman finds.

Country Court Care Homes did not provide the seven day notice period stated within its own contract with the resident, which prevented an independent assessment of the resident and caused the resident to have to move to another care home at short notice, causing distress.

Facts

A gentleman who had lived at Neale Court for over a year and who had, as Neale Court agree, become a member of its family, was summarily discharged from the home when he was in hospital, on the footing that his needs were no longer able to be met. The resident later died, ending his days in another care home, and his brother in law who administered his finances made a complaint.

The care home contract stated that in the event that the care home was no longer able to provide the level of care needed by the resident, it had the right to terminate the agreement with seven days’ written notice.

However, prior to taking this decision the care home undertook only a very ‘minimal’ assessment of the resident in hospital.

On 5 September 2017, a senior staff member from Home P attended the hospital to assess the patient/resident.

On 8 September 2017, it informed the brother in law the resident could not return to Neale Court. 

The home said it contacted the hospital to say it would not be accepting the resident back to its care. The hospital said it found out through the resident’s sister on 9 September 2017. The hospital said it called Home P to inform it that the patient had not had a nephrostomy tube fitted, as had been assumed by the assessing care worker based on a leaflet at the end of his bed.

However, Home P maintained that it still could not meet the resident’s needs.

During a previous hospital admission, a healthcare checklist had been completed. The view of ward staff had been that the scores were overly high and there was no evidence in the notes to support an application for funded nursing care. The hospital said it informed Home P of this at the time and Home P was willing, then, to accept the gentleman back into its care.

The brother in law said he emailed Home P on 10 September 2017 to say his wife had spoken to staff at the hospital, who said her brother had not undergone surgery and his care needs were just the same as the previous time he had been discharged from hospital. 

The home denied the hospital told it that the resident did not have a nephrostomy tube but maintained that in any case, it was not the only reason it felt it was unable to meet the resident’s needs.

The gentleman was very distressed that he was not able to return to Home P, where he had made many friends and had made his home.

The brother in law challenged the home’s opinion. He researched the medical issues that Home P said the resident was facing, and, in summary, presented the case that there was nothing so severe that would require nursing care.

The brother in law said he was told to clear his relative’s room. The Home say that he was told there was ‘no immediate rush’. It accepts it said the room would be continued to be charged until it was cleared.

The resident was then assessed by two other residential homes. Both offered him a place, with the view that he did not need nursing care. He was discharged from the hospital into a residential home on 28 September 2017.

Findings

The ombudsman felt the home was honest in its assessment that the man’s needs could no longer be met, even if it was mistaken. It was not unreasonable for Home P to have concerns about its ability to manage his care. It was within its rights to determine that it could no longer meet the needs of the resident.

However, the assessment notes take by Home P were not comprehensive. It appears to have completed a very minimal assessment of the resident in hospital and his condition. In complaint correspondence with the Ombudsman Home P had said that a care worker’s notes about leaflets placed at the end of his bed about how to recover from surgery led it to think the man had undergone surgery. The ombudsmen said that a more thorough investigation of his condition than this should have been made.

The care home did not give him the seven days’ written notice outlined in its contract before ending his residential licence.

Initially the home said that the part of the contract that referred to the possibility of getting an independent assessor was in relation to an increase in fees. It indicated it was not relevant to this case as there was no fee increase, but a discharge.

The LGO did not consider the contract was clear on this point but in any event, the home gave other unsatisfactory reasons why it did not suggest getting an independent assessment. It said it was only told of the resident’s brother in law’s disagreement with its assessment, after discharge had been finalised.

The home thus prevented an independent assessment being undertaken (provision for which was made within the home’s own contract) and thus blocked the opportunity of challenging the home’s assessment and getting a review of the decision made, before the contract and residential licence ended, which was important, even if the care home had gone on and upheld its original decision.

With regard to fees and whether the invoice was correct, it was not clear whether the man was a patient in hospital for over six weeks. He was contractually required to pay the full fee for the first six weeks. For any remaining time he would have only to pay 85 per cent of the full fee.

Incorrect fees were charged as the correct amount was less than the invoiced amount. This could have been a simple miscalculation. However the home also delayed in notifying the resident of his discharge from the home, which the ombudsman thought should have led to a reduction of the invoice by the three day delay. If he was in hospital for more than 6 weeks, the 15% reduction would also have had to have been factored in.

With regard to the end of contract wear and tear charge, the contract advised that at termination of a stay where the resident had stayed in a room for over six months, the care home may charge a fee of up to £495 as a contribution towards the total costs of restoring a room following any ‘excessive wear and tear’, payable in the final statement of account – a ‘dilapidation charge’. In this case, the home added a fee of £250 as an end of contract charge for ‘dilapidation’.

The ombudsman decided this fee could not be a ‘dilapidation charge’ because there was no evidence that the resident had created ‘excessive wear and tear’, and no justification for the charge given by the care home, who added the fee on after the final statement of account was already issued. Eventually the home removed this charge. The LGO and the complainant both took the view that the charge was removed because there was no evidence it was justifiable or any explanation available as to why it had been charged. That the fee had been added in the first place was found to be inappropriate and considered arbitrary, by the ombudsman.

With regard to complaint handling, the home had not bothered with the brother in law’s complaints because the resident had moved to another care home and it saw no point in spending the time on such matters. The LGO determined that dealing with complaints is not just about resolving immediate mistakes but about learning from complaints. The home’s inaction showed a lack of resolve to learn from complaints made about its practice.

Discussion

Residents who are have fees paid or partially paid for by a local authority would be protected by the local authority’s contract which would usually take precedence over any other contract issued by a care home. However if the local authority is not involved in the funding arrangement, for example if the resident is paying the care home fees privately as a ‘self-funder’, then the local authority will have no contractual involvement, as was the case here.

Thus the care home’s own contract would apply. In this case the care homes contract was found to contain a clause regarding financial charges for wear and tear of the resident’s room, which the home decided to apply after the final invoice and without flagging up any evidence of any such excessive wear and tear occurring. This could be considered an unfair term, and certainly the ombudsman found fault with the care home for apparently applying an arbitrary charge, along with other incorrectly calculated fees.

Additionally even plainly fair terms in this case were not applied fairly, as the contractual notice period was not applied.

Confusing or unfair care provider contracts are not new issues. Consumer organisation ‘Which?’ previously investigated care home contracts and highlighted unfair terms and an unwillingness to prove sample contracts. The Competition and Markets Authority (CMA) then also investigated care homes in 2017, concerned about potential breaches of consumer law in their practices and contracts. Following a consultation in 2018 the CMA launched its consumer law advice for care homes, explaining what they need to do to ensure they are treating residents fairly including contractual terms and complaints procedures. In addition a short guide to consumer rights for residents and their families was also created (links below).

Considerations for Professionals within the provider sector

  • How do you ensure that you are contracting with a capacitated person? Do you check whether the person signing the contract is lawfully entitled as the agent of the resident (ie has finance LPA or deputyship, or informal agency through the as yet capacitated resident’s request)? Do you check to see if the person signing means to be signing in their own right, for themselves, to be liable?
  • How fair are your contractual terms in contracts with individuals?
  • What about those terms detailing reviews and fees increases, and whether there is a need for acceptance? What if a provider does not receive acceptance but the resident does not move out? Is a debt consisting of the notified increase recoverable in that situation as would be the case in a private school’s contract? Is the provider entitled to treat absence of acceptance as the giving of notice?
  • How confident are you that your actual practice is in line with the contractual terms?
  • Are your invoices easy to check, for clients or their proxies to be sure of accurate invoicing?

Questions for Clients / Service Users

  • Are you clear of the meaning of the contractual terms of your residential licenses for privately contracted stays?
  • Are the contractual terms fair?
  • What about those regarding increases? Do they fit with the CMA’s view as to what is fair or unfair? Do the price increase clauses provide for acceptance of the variation, or deem it from silence, and what is the consequence of silence, if the resident then dies after several months of invoices at the higher fee? Does omission to accept count as the giving of notice? The provider may be entitled to give notice if its request for an increase is not met, as with a private school increasing its fees.
  • Is the care provider’s invoice sufficiently detailed and easy to check?

Date: 7th August 2019

For advice and support please contact: advice@cascaidr.org.uk

The CMA guidance ‘Care Homes: consumer rights for residents and their families’ can be found at: https://www.gov.uk/government/publications/care-homes-short-guide-to-consumer-rights-for-residents

Here is an excerpt:

Terms and conditions

If you’re paying for your own care, there will be a contract between you and the care home. The terms and conditions in that contract must be written simply and clearly, avoiding jargon, so that you can easily understand your rights and responsibilities.

Terms must be written and agreed with you in a fair and open way.

If a term in a contract is unfair, it will not be valid and the care home cannot hold you to it. Unfair terms include those which put you, or the person who signs the contract on your behalf, at an unfair disadvantage (for example, because they give the care home more rights than you).

Terms which may be unfair include those that:

  • hold you to ‘hidden’ terms that you have not had the chance to read and understand
  • do not hold the care home responsible if things go wrong and it is their fault.
  • require fees to continue to be paid for extended periods after a resident has died
  • allow the care home to make unexpected changes to your fees
  • require any upfront payments, unless it is a fair deposit or an advance payment of the regular residential fees

The full Local Government Ombudsman report can be found at

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/17-015-611

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Secretary of State for Work and Pensions v MM (Scotland) [2019]

This case concerned the application of one of the criteria for Personal Independence Payment: ‘Engaging with other people face to face’, a type of need that occurs most commonly amongst those with mental health needs and/or neurodevelopmental conditions (such as Autism).

The two central issues were:

(1) What “social support” means and how it differs from “prompting”

(2) Whether “social support” only covers help given during an interaction or whether help given in advance is also relevant.

The criterion is represented below.

Activity 9: Engaging with other people face to face

Descriptor 9b: Needs prompting to be able to engage with other people (2 points)

Descriptor 9c: Needs social support to be able to engage with other people (4 points)

The Decision of the Court

It is inherent to the structure of PIP that, broadly speaking, each descriptor reflects a greater degree of disability than the previous descriptor.

The Social Security (Personal Independence Payment) Regulations 2013 (“the Regulations”) Schedule 1 defines ‘social support’ as:

“support from a person trained or experienced in assisting people to engage in social situations

It was the training or experience required by the supporter rather than the nature of the support itself which differentiated ‘prompting’ in 9b from ‘social support’ in 9c. A need for support from any person (including a friend or family member) could qualify as ‘social support’, but only where it was necessary (rather than merely desirable) for the support to be provided by a person with relevant training or experience (rather than merely any person with whom the claimant was familiar or had a positive relationship) could it count for 9c purposes [paras. 33-35]. Thus the

“twin requirements of necessity and relevant training or experience” [para. 34]

differentiated between “social support” and “prompting”, even though

“the nature of the support provided might not differ between 9b and 9c” [para. 35].

(2) Lady Black dismissed the Secretary of State’s argument that only a need for support to be provided face to face during the engagement itself could satisfy a relevant descriptor. In her view, such a narrow construction of ‘support’ would

“stand in the way of other means of support which work for the particular claimant, and would also be likely to impede attempts to improve the claimant’s abilities to handle matters without support at all, or with diminished support.”

[para. 41]

She also pointed to the wide range of types of interaction included and identified that the physical presence of a supporter may be inappropriate and/or counter-productive in such sensitive situations as a medical examination or romantic encounter.

It was fundamental to the requirements for PIP eligibility that the claimant’s condition must be relatively long-term or permanent (lasting at least 12 months) and that each specific need must be present at least 50% of the time. The need itself must, therefore, be a continuing need (rather than a past need from which the claimant has recovered or is improving), however:

“There is nothing in the wording of descriptor 9c, or the definition of “social support”, to require actual presence of the supporter during the engagement, nor yet to require that the support is timed to coincide with the engagement, rather than being provided in advance, or indeed afterwards.” [para.43]

Comment

Lady Black resisted the temptation to specify in more detail the types, nature, timing or duration of support which would or would not be sufficient to meet a descriptor and decided that reading in a need for a temporal or causal link between the support and the engagement was incorrect. ‘Need’ was not a relative term. If only trained or experienced help would be sufficient for the claimant to be able to engage with other people face to face, then they would satisfy 9(c) “social support”. If any familiar, well-meaning but inexperienced support would do, then they would not (although 9(b) might still be satisfied). She concluded:

“Given that social support is likely to take many different forms, depending on the individual needs of the claimant, it is undesirable to attempt to prescribe, in the abstract, which other forms of support will be sufficient. It will be a question of fact and degree, and is something that will have to be worked out on a case by case basis, by those with expertise in making assessments and decisions in relation to claims, keeping the wording of the provision firmly in mind.” [para. 46]

In practice, of course, short of their case being considered in detail by the Supreme Court, most claimants will have to take their chances as to the expertise and knowledge of the wording of the provision of the particular assessor and decision-maker assigned their claim. Nevertheless, this judgement should be of assistance (at least at FTT level) in clarifying that the support is needed by many individuals with relevant needs where it has perhaps been denied before.

Although this case originated in Scotland, this criterion is exactly the same in England.

Full text at: https://www.supremecourt.uk/cases/docs/uksc-2017-0215-judgment.pdf

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