Supported Living is the name given to a model of care in which the person with the needs has them met in their own home, most usually let to them by a well-informed landlord such as a housing association or private or voluntary provider with experience in accommodating people with special needs.
Housing Benefit pays for the rent, if the person is eligible, in financial terms, and an extra amount is available by way of housing management costs, and on top of that, a special further payment is available out of central government funds (at present) called Transitional Housing Benefit, for general counselling services which assist the person to live independently, in terms of maintaining the tenancy.
If a person needs additional care, they can of course seek it from the local authority where they live, and the social services department will assess and provide or contract for the provision of those extra domiciliary care services, either from a domiciliary care agency, or the provider who is providing the accommodation.
Such schemes are sometimes called Enhanced or Extra Care schemes, and they are seen as the way forward for modern provision of what it is that people most want – the right level of care, in their own homes.
Existing registered care home settings can often make desirable accommodation, with a bit of remodelling being done on the internal living arrangements, for the typical Supported Living client group. Communality of accommodation has never prevented people from being granted a licence to occupy, although self-contained accommodation is needed for a tenancy. So one answer to the decrepitude of many existing care homes, which could not be brought up to standard economically, under the Care Standards Act, is to move towards de-registration and the new Supporting People model.
However, a legal issue which threatens to stymie much advance in this direction is the issue whether such schemes amount to registrable care homes under the Care Standards Act. For providers, there’s not much point in de-registering a care home and entering into tenancies if it turns out that what is going to be provided still somehow counts as registrable care! The Government has now issued new guidance on the regulation of supported housng and care homes which seeks to explain in broad terms where registration as a care home is required and how to distinguish care homes from supported housing of various kinds.
In the old days, under the Registered Homes Act, lots of early supported living schemes managed to walk the tightrope and avoid registration (not for any ill-motivated reason, but because of the expense) by not providing board. The old Act required that registration be applied for if both board and personal care were provided with accommodation. Others managed by complicated leasing and lease back schemes between landowners and domiciliary care providers.
Registration of supported living services
We advise clients that personal care services, for a person capable mentally of understanding the fundamentals of, and actually holding a genuine licence or tenancy agreement from a landlord, are capable of being provided directly by the landlord, without triggering registration in respect of the address where they are provided.
We do not think it is necessary for a supported living business strategy to separate the identities of the licensee’s or tenant’s immediate landlord from that of the freeholder, or from the identity of the organisation providing either the THB funded general counselling and support, or the full blown personal/domiciliary care. The nature of the services being provided makes no difference to this view.
If, once the NCSC gets going with inspections and the Tribunal makes some law, to the effect that it is not merely a separation of the contractual arrangements for the different elements of care making up the package, which renders the services unregistrable (by dint of the requirement for registration that care be provided ‘together with’ the accommodation), we do not think that distinctions between the legal corporate identities of linked companies would necessarily cure the problem. This is because the only basis on which contractual separation would be found to be inadequate to defeat registrability would be if the law were to be that the use of an establishment, in the sense of ‘premises’, or a ‘building’ or ‘buildings’, for the provision of care and accommodation for the same recipient, was sufficient to trigger registration. If that were to be the case, not even the complete separation of the companies providing the care and the accommodation would meet the problem that they would still be being provided in the same premises.
Hence we think that there is no benefit, in strict legal terms, in setting up a subsidiary to undertake either land owning, property maintenance or care providing functions.
Nevertheless, we appreciate that it may yet appear desirable, for the strategic reason that many councils are anxious to see separation of the identities of care and accommodation providers, such that if a business is going to be competitive and attract clients and service agreements, it needs to comply with the main beneficiaries’ perceived way around the problem.
Reasoning for the above view
The registration framework makes the ‘establishment’ which provides the care (which now has to include some assistance with bodily functions in order to trigger registration) together with the accommodation, the entity which must be registered. The person who must apply is the person who ‘carries on’ or ‘manages’ the establishment.
There is some case law on the meaning of ‘establishment’. In the Tribunal case law to date, the concept of an establishment has only ever been considered with regard to whether it covers one or more buildings, separated geographically, but most often, when the finding has been one ‘establishment’, within the same curtilage. Sometimes it has suited the provider to be arguing that two buildings count as one establishment, and at other times as two (when the overall number of clients was so large for instance, that two separate homes stood a better chance of getting registered).
We do not think that the fact that the word has been considered in the context of ‘buildings’, necessarily means that it means ‘buildings’, though. If the intent was that in any building where care was provided, as well as somewhere to live, it would mean (if the care services included assistance with bodily functions) that there would even have to be an exception for a person’s own home. There is none, and there never was one, under the old Act. This makes it probable, we think, that there is more to the conditions precedent for registration than would be the case if ‘establishment’ just meant ‘premises’.
Since a person has to be carrying on or managing the establishment in order to be the right person to apply, the word ‘establishment’ is more likely to mean a business, an economic activity, or an operation, rather than just ‘a building’ or ‘buildings’. If this is so, then the concept of the ‘establishment’ providing the care and accommodation becomes more important in its own right, we think. The old Part II Registered Homes Act made nursing homes registrable if they were :
Any premises used, or intended to be used, for the reception of, and the provision of nursing for, persons suffering from any sickness, injury or infirmity;
Then there was an exception as follows:
The definition in subsection (1) above does not include—
Any premises used, or intended to be used, wholly or mainly as a private dwelling;
That form of wording, had it been carried over to the new framework, would have been enough to convince us that the trigger was focusing on the use to which the building was put. But given that it has been worded differently, with the focus on the establishment doing the providing, not merely being used for the provision of the care, we think that this connotes that the operation or entity (a business in this respect) is providing the care and the accommodation. A building or premises cannot provide those things, in the ordinary meaning of the word.
There is also some case law to the effect that the running of a holiday establishment for people with disabilities also offended against the old framework unless people brought their own carers with them. This serves to support the analysis that it is not the fact that the establishment (premises) forms the site where the care and the accommodation are both received; rather it is the fact that the establishment provides both elements, which is problematic and triggers registration. If an occupant can bring their own carer, then they may as well be buying in their own care to have on the premises, and that would remain outside registration. It is a short step from there to say that the same outcome results when the local authority buys in the care for the client instead.
Neither is it enough for registration that the establishment (the business) is simply happening to provide both the care and the accommodation. They have to be being provided ‘together’, and it is significant that this word has been added to the new framework, whereas in the old it was just left as ‘with’. We think the addition connotes very strongly that the arrangements for the care and the accommodation have to be bound up together – for instance, in one contract with one party, where the two elements are understood by all parties to be inter-dependent or hand in hand.
A person who is providing domiciliary care services under s30 of the National Assistance Act to a local authority owing someone a community care service provision obligation is deemed by the law to be the agent of the authority. As such, we think it is a fair point to be made to registration officers that where there is an LA contract for the additional personal care, then the client is not the recipient of the service, but that the client is the local authority who has bought in the service, and who is seen as the statutory provider, in law, to the actual individual recipient of the services.
The Significance Of The Arrangements For Occupation
A client who is in their own home and buying in care – even 24 hour care – is in premises which are used for the provision of care and accommodation, but no-one suggests that people’s own homes are registrable. The accommodation is not being ‘provided’ by an establishment, let alone ‘together with’ any care. The same is true for someone who rents a property – they are as much in their own home as a freeholder, and they are entitled to buy in care or not, or receive it from the local authority or the local authority’s agents, without it affecting their rights of tenure or occupation.
It follows, we think, that if a provider is a landlord, with a genuine agreement for a tenancy or a licence with an occupant, on the one hand, and an arrangement to provide that person with care, at the request of the local authority or the client directly, on the other hand, there is no contract for care ‘together with’ accommodation. The person is in their own home, and the fact that the establishment which is providing the care is also the landlord is not enough to make that situation any different from the situation where a person has a mortgage or a right to occupy under a trust or whatever other interest in the home. There is one contract for the accommodation, to which the landlord and the occupier alone are parties; and there is another contract between the occupant and the landlord, or the authority and the landlord, for care. The care contract, regardless of the parties to it, will be for services to be provided to the client, in their own home.
It follows that even if the landlord is one and the same as the provider of the care, there is still no contract for provision by the establishment concerned, of ‘care’, ‘together with’ the accommodation.
A very large number of candidates for Supporting People projects are moderately to severely mentally incapacitated, having been ex-long stay hospital patients since moved out into the community, in line with NHS and DH policy.
The above approach to the non-amenability to registration of genuine supported living licences or tenancies is, we think, completely inapplicable where the occupants are so severely mentally impaired as not to understand the basics of the tenancy agreement or licence. Anyone who is incapable of understanding the concept of money, and appreciating what is involved in managing their own money, and anyone incapable of understanding the notion of the exchange of money, in return for a place to stay, and the basic obligations which go with it, in terms of mutual respect and decent behaviour towards other occupants and the property itself, is not capable, in law, we think, of holding a tenancy or licence. This means in turn that they are incapable of claiming housing benefit, THB, managing a direct payment, and all the rest of what goes with a move into supported living.
We appreciate that the law on necessaries (ie food, shelter, and care) would hold that any such contract which had been entered into by a person acting on their own account, would in fact be enforceable by the provider, despite the person’s mental impairment. However, it is inevitable that the people whom Supporting People projects end up housing or serving with personal care etc. will not have been acting on their own account. They will have been ‘put up’ by the local authority or health authority, and manoeuvred into the tenancy (in the nicest possible sense of the word), without ever having even personally purported to be knowing what they were doing.
We are confident that such agreements, convenient and desirable though they may be, in relation to maximising the autonomy, income and dignity, of the persons concerned, were and would be ‘shams’ – and that the court would say that such persons should never have been ‘externalised’ from the care of the local authority under its National Assistance Act residential and nursing home procurement functions in the first place, or by the Health Authority, using the s28A and benefits route into care, without any care management from the local authority. All such agreements involve public officers having presented the clients to the providers and having said something to the effect of ‘treat them as a tenant’ – and that is more like arranging a placement for someone, rather than introducing them to an arm’s length landlord for an arm’s length tenancy.
Since this client group will often be receiving personal care which is of the nature of assistance with bodily functions, as well as support and supervision, we think it is inescapably the law, that such set-ups remain registrable, and that de-registration would in due course attract enforcement action by the NCSC – for the purpose of protecting the clients – unless some other means is found by which they can validly take tenancies from their landlords.
We think the answer to that problem is formal Receivership. We have made a formal enquiry of the NCSC using their helpline address, with a request for assurance in relation to the general argument about ‘together with’ and the specific receivership point.
Receivership is managed and administered by the Public Guardianship Office. The important features to note are that there are scale charges, a discretion in the Office to waive the fees, and a right to payment for receivership services, if the individual Receiver is a professional.
We think it is worth investigating whether the provision of such receivership by suitably qualified people, perhaps working as part of another of a projects corporate group structure, as either an advocacy unit or a specialist financial management and benefits unit, might provide an income stream additional to the one to be derived from THB and domiciliary care services. Finding a source of payment for these new financial management responsibilities should be seen as the price at which LAs and HAs can choose whether or not to facilitate the other savings that they might see from de-registration of existing registered residential care homes.
We also think it is conceivable that a receiver signing a tenancy in place of the individual occupying the premises might prudently wish to consider the need to get insurance in relation to harm to visitors, including the staff of the providers, as a normal incident of the responsibility for the management of the ‘property and affairs ‘ of the person concerned, and of any person’s responsibility for the state of their premises and equipment, if it is foreseeable that other might be affected by it.
We would also call the attention of Supporting People projects to the possibility that having an external Receiver in place might enable a project to ask for a guarantor of the rent, so as to smooth financial difficulties out in areas where the administration of Housing Benefit and THB is in disarray. This would depend on convincing local authorities that their finance departments are the obviously well suited candidates for the role.
Significance of Choice of Provider
The government guidance in relation to choice of care provider within Extra Care or supported living settings is firm on the point that an agreement which makes the reception of the care from the landlord, or where the agreement ties the client to having any care received from the landlord, renders the arrangement potentially registrable.
We do not think it is because choice of care provider, as such, is important to the question of whether the person is really to be seen as being in their own home. Ordinary clients of a social services department have no legal right to choice of provider, so it could hardly constitute a test. Rather, we think it is because the question of choice of whether one has care at all or not is the crucial feature of being someone who lives in their own home.
We are also aware that the government’s consultation guidance on Supported Living warns that de-registration may lead to the finding that what is thereafter provided to the clients amounts to a registrable service, and that a number of companies together could be found to be running ‘an establishment’.
We have followed this warning up and have had it confirmed by the Department of Health legal team that there is no decided Tribunal case on which they were relying when saying this. It is our view that the warning is actually aimed at sham schemes where there really is very little difference before and after de-registration in the range of services offered or the philosophy of care applying; and in particular, where the contracts of so-called tenancy require the client to receive the services as a condition of the tenancy, and indeed, sometimes, from the landlord itself and no other provider, or from an associated company which will have been set up to provide the personal care.
We agree with the guidance that such schemes would be registrable, regardless of the identity of the separate providers, not because they deny choice of providers, but for the simpler reason that a contract of tenancy which makes the receipt of care, part and parcel of, or a condition precedent to, the continuation of the right to occupy, IS an agreement between one legal entity, and the client (him or herself), for a package of care ‘together with’ accommodation. The tenancy may be genuine, but what is abnormal in that situation is the client’s acceptance in advance that to have a right to live there, they must accept care or care from the same provider as the landlord, or his agent. That is not what the law is for people in their own homes, who can refuse or accept care as they please (subject to having mental capacity and not presenting a public health risk); and that abnormality of arrangement is what would make for a finding of amenability to registration, in our view – whether on the basis that the tenancy was a sham or on the basis that the establishment was in fact offering care and accommodation ‘together’.
In a situation where the client has been tied in to accepting care as a condition of the tenancy, then even if there were no tie-in to a particular company, we would not be confident that it would cure the problem even if the care to be provided, at the behest of the authority’s SSD, were to be provided by a different company to the landlord. Thus, even if there were two contracts in place, one for care and one for accommodation, with separate parties (tenancy between landlord and tenant, and care between authority and separate company, we would still expect the NCSC to contend that the client was not truly to be seen to be in their own home, because of the condition of receiving the care. The more associated the companies happened to be, the greater the likelihood, we fear, to find that together they run an ‘establishment’ – in those particular circumstances.
We can understand why a lot of local authorities think that separation of the businesses offering the different elements in the package is the best way of achieving the kind of separation which strikes them as necessary. They would imagine, no doubt because of the dubious benefit of the terms on which some old properties have been disposed of, to Housing Associations, that the only way they would get Housing Associations willingly involved in taking on such tenants, would be to re-assure the landowners of the right to repossession of the premises, the moment the person gets difficult, or denies the Housing Association (by refusing care services) the chance to earn the lucrative domiciliary care contractual payments often going hand in hand with the long term lease of the properties concerned.
Terminating the Tenancies or Licences – Protection for the Provider
The HB and THB system depends for its conceptual underpinning on the idea that the client is contracting with the landlord, not only for the accommodation, but for the add-on support as well. To that extent, THB depends on the existence of an agreement between the client and the landlord for the general counselling services. But it does not depend on the landlord’s having made it a condition of the tenancy that the client actually accepts the support services, or accepts them from the landlord or his agent. The law, quite simply, is that if the tenant does not agree to have the service, then s/he doesn’t qualify for the extra HB to cover the service, and that would leave the landlord/care provider out of pocket, with a need to take swift action. Refusal of care services should not lead to the forfeiture of the tenancy, without putting into doubt the validity of the home being the occupant’s own home, and hence amenability to registration, in our view.
In fact, it is the supported living market which has moved towards making the support element a condition of the tenancy, we think, to deal with the problem that a person with community care needs, who won’t accept the services, potentially becomes a problem for the landlord and other tenants, and doesn’t pay for what has been contracted for. Direct payment of THB by the council to the provider offsets that last problem for now, at least; and when the THB element becomes a LA contractual requirement for care services, the economic problem of being left out of pocket by a non-paying client will disappear, because the council will be contractually liable to the provider, regardless of acceptance of services. But not all councils are willing to pay for the more extensive personal care services which may be needed on top of general counselling services, regardless of whether the person will let the carers in to provide the care.
If the real problem is what to do with people who will not accept care, having taken up the tenancy, then the law of landlord and tenant can help. If the occupant has been given an assured tenancy, it will be difficult, if not impossible, to evict them merely for becoming challenging. That is why we think it is a necessary element of any such strategy for provision to people with a learning disability or a mental illness, that they be provided with assured shortholds, and that the LAs concerned are reminded by providers that LAs may be forced to take steps under guardianship, declaratory relief, or the Mental Health Act, should it become necessary to ensure the continued reception of care services, somewhere. It will be embarrassing for a local authority to argue that the person is incapacitated in relation to daily living decisions (an essential precondition to declaratory relief and a virtual necessity for guardianship) if the authority itself played a significant role in getting the person into the apparent tenancy or licence arrangement in the first place.
If a candidate for a supported living scheme has mental capacity, it is our view that for the reassurance of the providers, the authorities concerned ought to seek the written agreement of the client to accept domiciliary care services in the RSL or private landlord setting, as a condition of being nominated to the land-owner for the tenancy. That is the closest the authority can get to ensuring that everyone knows the real basis on which the parties are going to work together to maintain independence for as long as possible.
Where the client plainly lacks mental capacity, then even if a Receiver can sign the tenancy, legitimately, and thus ensure access to HB and THB, the client cannot be said to be consenting to receipt of personal care, and government policy around Supporting People seems to be based on the notion that local authorities can put in those services on the basis of ‘necessity’, without the lack of consent making the service provision into an assault.
This may or may not be correct in law – it has not yet been explicitly decided whether authorities can just get on with it, or must go to court first for the judge’s sanction of the arrangements in the best interests of the client.
The significance of this is that in situations where the clients’ personal care is to be supplied to the client without any contract in place with a local authority, (because it would simply continue to be paid for by a Health Authority’s s28A monies paid directly to the voluntary sector provider or RSL), the provider itself would have to be prepared to meet the challenge ‘What or who has given you the power to touch a non-consenting adult in this way’? – and the provider would not then even be able to point to any statutory responsibility of theirs, for meeting the client’s needs, nor suggest that the Receiver has a power to consent on behalf of the clients concerned, in matters of personal welfare (even though he or she does have an obligation to consider contracting for such services, for the maintenance of the individual).
Implications of grant funding for the success of the strategy and status for de-registration purposes
Our legal advisory work makes us aware that many clients who might be suited to Supported Living are currently funded by s28A National Health Service Act money from the Health Authority or PCT. This may be either
- a) via the LA, which then contracts with the provider for a registered residential package
- b) directly to the residential care home owner, under s28A(9) as a voluntary organisation.
In addition, some other authorities have provided s64 Health Services and Public Health Act 1968 monies, also by way of grant, directly to providers as a voluntary organisation.
In both cases, the nature of the arrangement is support for funding of either residential, or a basic nursing package of services – that is, social care, in nature, rather than any health service continuing outside of a hospital.
In most if not all of these cases, the money has not been tied to the specific client, but has been paid on a regular basis in block sums on account of a certain number of bed spaces, rather than specific people. This is consistent with the nature of such payments being by way of grant and not a contract for specific services, for specific clients of the health service.
Some of the clients have either been their own ‘care managers’, notionally requesting and receiving services without input from any other professional, and paying for them wholly or partly out of benefits which counted as money in their own hands, the shortfall being met by the HA/PCT grant payment. Alternatively, they have been the clients of the local authority, provided with a social care package (usually residential) and charged by the authority for the services in line with the national charging regulations, the actual cost of which services to the authority being offset further, by virtue of the HA/PCT s28A subsidy.
Amongst the clients, some people will have been used to getting benefits at the Preserved Rights rate because some homes existed prior to 1993 and those in registered placements prior to 1993 would have continued to get the higher Preserved Rights rates, out of which to pay for their care.
Some of those who came along later, but who accessed care independently via the benefits ‘loophole’ route, when Residential Allowance made it possible, rather than coming via contractual arrangements made by the local authority, would still have got benefits such as income support, though not so much as Preserved Rights rates. Presumably therefore, the grant payments the providers received from Health Authorities, would have made allowance for that deficit, and would have been greater for those clients.
The majority of clients who came along later will not have been able to manage to pay the fees without the LA’s care management and contracting, and they too will have got income support etc, including the residential allowance, when it still existed, but their shortfall will have been funded by the LA, and reimbursed by way of the s28A funding, or kept to a minimum by the direct payment of the s28A money to the providers, whose charges would then have been less to the LAs concerned.
The PR people now have been handed over to the LAs who now have contractual responsibility for these clients. LAs should have got as far as agreeing prices for the clients because otherwise they have no security in their placements. Those agreements may have assumed that the HA’s s28A subsidy is still going to be paid, and in the same amounts, by the HA. IF that is the case, then that is fine, and the decision is simply about whether provider can provide the services for the money on offer, but if the grant money is in doubt, the LA should be paying for the whole amount.
The crucial point, about the basis for this sort of grant funding, though, in light of the need to move towards deregistration to bring about Supported Living projects, is that the grant would meet the shortfall in cost, after benefits had been taken into account, through the provider having charged the client directly for the care.
The consequence of de-registering will be to make these people eligible for a different kind of benefits and care package, or else into clients who need to be cared for elsewhere, because they cannot hold a tenancy.
- a) Those clients who have been the LAs’ clients all along, will have to be re-assessed, because once the LA is on notice that the registered nature of the service is going to change, they ought to appreciate that they will need to consider whether the client can be seen as being able to make their own arrangements for accommodation.
- b) The right approach for clients who have never had care management is more complicated. We think that a referral of those clients who have not been contracted for previously by the local authority ought to be made by the providers to the LAs concerned, as part of any deregistration strategy, unless there is agreement from the HA concerned that the grant paid should remain the same or increase. We take this view because notwithstanding the s28A monies, the HA has not ever taken a formal responsibility for these people, in relation to the purchase of aservice for them as individuals, and they have no care management at the moment. If there is to be an enforced reduction in the grant paid, because the HA sees de-registration as somehow signalling the severance of a link with the clients, then the services are at risk, and that is a matter of concern for the LA on the spot.
We think it should be put to the local authorities concerned, that including these people as part of the group for whom the authority should see itself as contractually responsible will be good for the authority – in terms of its SSA, and the take-up of THB, prior to the changeover to the Supporting People cash limited grant. The authority must at least consider whether these people need to be assessed for the first time, even though the conclusion might be that they will be given the right kind of support if they go the independent living route and have THB and HB to pay for it, thus meaning that the LA does not have to step in to provide extra services.
If though, a majority of candidates for supported living are those who have a mental illness or a learning disability, it is highly probable that they will need more by way of a care package than could legitimately be provided by way of THB general counselling services. So referral to the LA will have the added advantage of putting the LA on notice of the need to allocate resources to those persons, and hence an interest in keeping the HAs on side, so far as continuing with their grants at present or increased levels is concerned.
There is another, more pressing reason why the LAs must be involved where the clients have been, in effect, their own care managers (because benefits plus the s28A grant money have met the cost of meeting their needs). For these people, de-registration will give rise to an immediate problem, which can only be resolved, in our view, by putting the s28A monies through the relevant LA, in order that it can plainly be seen thereafter that the LA is purchasing domiciliary care with the money.
If this is not done, the clients will be apparently receiving personal care of a registrable nature, (if that is what is needed in some of the cases) as well as THB eligible services, from the same establishment as is providing the accommodation. And unlike the case with the LA’s clients, there will be no separate contract to which to point, as the source of the request for the additional care services, and none capable of being shown to have been entered into by the clients, directly with the landlord either, since the majority we are considering will lack mental capacity to contract. The oft-favoured device of another company through whom the care is provided would not make this any safer, because the problem would still be that the services which have simply existed, before, outside contract, because they were funded by the s28A grant monies, existed lawfully in a registered setting, but would now amount to personal care services which would make an unregistered scheme registrable, unless they were not being provided ‘together with’ the accommodation. The lack of a separate contract could be just the factor which would make the NCSC think that this is the sort of a scheme the government guidance intended to be regulated.
Changes in amount of grant funding
Some providers contemplating de-registration have been given the impression that some health authorities/PCTs anticipate making savings or the complete withdrawal of support, after deregistration. At the same time, LAs are looking forward to not having to pay residential care fees.
The idea of netting savings in s28A support payments makes logical sense, to our mind, if one appreciates that part of the expense of registration is complying with standards which are simply not applicable outside that framework. That should, in theory, make the cost of provision go down. The injection of central government money by way of HB and THB also seems to cut local expenditure down too.
The HAs’ expectation that they should be able to make a saving on what they currently pay would be correct, in strict logic, because THB eligible services have been deliberately broadened beyond the old add-on element of HB, in preparation for the full blown Supporting People scheme in 2003.
But whether any saving could realistically be expected in real life seems to us to depend on the HAs acknowledging that the Care Standards Act, with the introduction of domiciliary care registration etc, and the minimum wage, and the need for appropriate re-investment strategies, the social care recruitment crisis, etc., have all created an environment in which an above- inflationary increase, anyway, in the gross cost of the projects, would have been very likely, regardless of whether provider units continued as registered settings, or moved to de-registration.
Secondly, HAs need to bear in mind that providers have been coping with the additional costs of service provision despite people’s deterioration over time, which would add to the bed price on which the HA grant was always based, in any event. That increase in cost is bound to carry over into the new setting for care, and by definition, the extra services needed on top will not be THB type services – they will be personal care services.
Indeed, for some people in nursing homes, the services needed are more likely, if anything, to be continuing care nursing services in what will be the client’s own home, rather than GCS or social care. It must not be forgotten that local authorities cannot lawfully purchase anything which is nursing care, in a community setting. So any service which was a nursing service, is going to have to be purchased by the HA/PCT or by the person themselves out of their benefits if illegality is going to be avoided. Intimating that the costs will be returned to the PCT via claims for continuing care monies, might provide a neat piece of common-sense leverage in keeping NHS s28A grant levels up in this regard!
Thirdly, the HAs need to grasp that there is an upper limit to the type of services which can possibly be put forward as covered by THB. GCS is carefully defined in the literature on supported living and stops well short of personal care, or specialist therapy or counselling or supervision. Thus providers are not in ultimate control of the element claimed as THB, and cannot therefore bump up the element to be met by that source of funding so high that the personal care shortfall simply withers away…
There may also be hidden costs in de-registering – compliance with regulations relating to housing in multiple occupation, for instance. As mentioned, receivership will be pivotal in making the whole deregistration scheme legitimate, where the clients are significantly mentally impaired, and carries a cost with it. We appreciate that providing stimulation, motivation, life skills training, encouragement and hands off support can often require more skill and input that providing hands on support – and so may cost more, not less, than care in a more institutionalised setting. Thus providers should be wary of letting the idea of savings become too rampant, at least until the real cost of de-registration and re-provision can be worked out.
LAs who have had the s28A monies but who have paid for the whole package in contractual terms will not expect an automatic saving because they will be aware that they need to pay for the shortfall over HB and THB for the packages to be sustainable. Where the clients were making their own arrangements, and managing to pay for them out of benefits, because of the subsidy direct to the homes concerned, it will be harder to prevent health authorities from threatening complete withdrawal, because they will not only see a big chunk of the overall cost met by central government money out of a different coffer, leaving only the personal care shortfall to be met – they may see the change in the situation as severing the link between the clients and the Health Service’s original responsibility for them.
The fundamental problem is that NHS Act s28A monies have always been a payment made in the discretion of the authority concerned. When a HA obtained a benefit from closing all the long-stay hospitals down, it of course seemed only right that they should pay for the care of the persons discharged, even though it was really a social service which was going to be provided to them thenceforth. Even though they weren’t contracts, s28A payments of this nature were seen as paying for the services for which the authority would otherwise have been paying. But if there is a change of status in the home, a change which is, after all, down the registration hierarchy, and not up it, we fear that some authorities will see this as somehow a logical end to their ‘responsibility’. The argument will be put that people in their own homes, needing social work support, are supposed to be looked after by the local authority, and not the health service.
We think the opportunities offered by Supporting People have to be put over from the outset to both health and social services as a classic situation crying out for joint working, because the scheme suits everybody. It suits local authorities because it saves residential care fees, and because it will enable them to point to many more people being independently accommodated. It suits providers, because it fits with a modern ethos of care and ensures a smooth income supply and avoids the expense of compliance with the care home registration framework. It suits clients, because of the independence and autonomy it gives them, and it suits health authorities because it keeps this client group off the NHS books and makes them more plainly than ever a local authority responsibility.
What typical providers contemplating deregistration need to do, we think, is to explain to the current HA funders that despite deregistration, the provider’s voluntary status will not be changing, simply because it will be providing tenancies to the former residents; and that the care is obviously still needed, and is still a social care sort of service capable of attracting s28A grant monies, either for the LA or for the provider directly. If neither the identity of the client, nor the nature of the typical client’s profile has changed, then there really is no logical reason why the HA should withdraw support, or could justify any such move.
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