Rob Greig has written in the Guardian that proposals to meet people’s needs in care homes rather than in supported living turn the clock back, and others have agreed it would be a return to the Dark Ages.
My position (wincing at the flak it is bound to generate – so please read to the end before outpouring on Twitter, and remember that my AIM is true and that I campaign for properly funded adult social care and am not the enemy of the people….!) is simply that this is not necessarily the case.
Before it could possibly be true, one would have to consider some of the NOT so great things that have been done in the name of normalisation of the lives of people with learning disabilities, in supported living – when really, policy has always been driven by accessing alternative income streams, the fit with the Housing Benefit system – and held back by the completely legally illiterate assumption of policy makers that one didn’t need to understand a contract in order to sign it, or take up its benefit…
This piece is not an exercise in ‘bigging up’ care homes or what the current residential model tends to offer, or could offer. It’s just a focus on the legal facts about the system-wide disingenuousness in the Supported Living sector – that’s there for anyone to think about, if they didn’t all have an organisational or sectoral agenda to serve.
Readers with grey hair will remember that care homes were de-registered en masse over the last 15 years, in order to enable the owners to turn themselves into landlords, and keep the residents on as tenants – tenants who could get Housing Benefit and Transitional Housing Benefit for non-care tenancy related ‘support’ services (and then THB became Supporting People grant, for that type of lower level input – which was not regulated by CQC at the time).
Older readers will also remember all of the manoeuvring of services into that concept that had to be done – and then undone – when Supporting People Grant was terminated, and the services had to be regarded as re-commissioned under the still pre-Care Act legislation, and now the Care Act. These sorts of services are now referred to as part of the response to ‘inability to achieve maintaining a habitable home environment’, courtesy of the Care Act Guidance!
SOME readers may recall that the Alternative Futures saga established that the predecessor of CQC had rightly regarded an establishment as continuing to be registrable when it was shown that the arrangements for the care together with the accommodation were integrated, in legal form, in the tenancy, as well as through the real life relationship between the landlord and the provider, and thus constituting the provision of care together with accommodation.
Readers will now also perhaps grasp why we have had 5+ years of the Court of Protection needing to make single orders and deputyship orders to regularise the tenancy arrangements of all those people externalised by government edict from NHS long stay hospitals and PUT into supported living tenancies without mental capacity. Valuing People’s original vision was that it didn’t matter because as long as rent was paid, the tenancy would be voidable only when someone on the client’s side needed it to be. But loads of those tenancies had never even been signed or signed by the occupant at all: the sector thought that people’s mums, dads, vicars, circles of support, sometimes the care manager or even the bloomin’ landlord could just do the signing for the incapacitated person. And this was done to further their RIGHTS, mind you. I despaired at the time, and will therefore still bang on about legal literacy, even if I do sound like David Brent by now…
Human Rights and the UN Convention
Proponents of supported living often contend that article 8 ECHR and the UN Convention on the rights of people with disabilities entitle everyone to a home that they are the owner or tenant of, ‘in the community’.
But this is not the interpretation that any other signatory country’s courts have put on the rights mentioned. Residential care homes ARE in the community: they are lawful responses to the duty to meet need in national law, and people have rights to choose which care home they want to go to if they have capacity and are the clients of the State; if they can’t exercise those rights, a best interests decision has to be made (and no deputyship is needed). None of this means that an old-fashioned residential care home would ever be suitable for a young person with complex needs, but an appropriate one would need proper funding!
Under the ECHR, Article 8 rights are to respect for one’s home, not a right TO a home, let alone a home of an unregistered status regardless of one’s needs.
In discharging the duties under the Care Act of course the council has got to abide by Human Rights, but it does so by weighing up all the other considerations, including whether it is even feasibly possible for a person to BE CARED FOR suitably in their own home, even if money were no object. The NHS can’t be made to care for people in their own home, regardless of the cost, and councils are no different, it seems to me.
The right to accommodation in the Care Act is to eligible needs related accommodation, not to housing. I am not saying that housing cannot be provided, only that there needs to be a very pressing reason why the needs can only be met if housing is secured, before Housing Act functions are superseded by Care Act duties. The only reference to suitability of accommodation in the Care Act is part of the list of features of an individual’s wellbeing that must merely be promoted; it does not constitute an absolute duty to house in ordinary housing, where Housing owes a duty or even where Housing does not or will not; not even if one is otherwise eligible for care and support services – for instance, there are plenty of people with an immigration status who are not able to be housed by social services.
Rob Greig’s article features news on Rochdale’s proposal to recommission services for about 260 people costing on average about £872 a week, in supported living, potentially but not exclusively in residential care homes.
I don’t think that Rochdale will be the only council thinking that a solution to slashed budgets is to return the status of premises to that of registered residential care, whilst trying to preserve the concept as a personalised model for independence.
Look at the response to the Law Commission’s consultation on reforming DoLS:
- “Many felt that the distinction between supportive and restrictive care was without meaning given the apparent lowering of the threshold for deprivation of liberty following the Cheshire West In other words, it was argued by some that almost all people who lack capacity and who were living in a care home or some other form of care environment will satisfy the acid test.”
There’s a bigger elephant in the room however, in this debate, to my mind:
What about the ticklish problem that the whole notion of supported living is based on the received wisdom that there is something out there CALLED ‘supported living’ that exists to be bought, by councils, as such, as a Care Act response to needs, and that it is not residential care?
In legal terms, there is no such thing as ‘Supported Living’ in the Care Act’s s8 list of things that can be bought in order to meet assessed eligible needs.
There is care, support and accommodation, and facilities – perhaps as a mop-up term for anything even remotely unusual.
Accommodation as a Care Act response is either the purchase by the council of appropriate care together with the accommodation, where the care is such as to constitute personal care as defined in regulations, in which case it must be in CQC registered accommodation – OR a placement in unregistered accommodation, such as specialist mental health rehab supported living where the occupants have no tenancies, as such, because the council is paying the whole cost to the provider. In some such places, I think that some occupants do still get HB, because the premises aren’t registered, and because they can show that they will ultimately be charged something by the council, in respect of the accommodation as well as the services, which is the test for HB – not that the benefit applicant is charged rent by the actual landowner.
Supported living packages, as the sector thinks of them, are actually completely different: they are the purchase of personal care, care or support, or a mixture of the three, for delivery “in the place where the person is living”.
Councils do not tend to own, lease or buy the accommodation rights in these arrangements. They access the tenure within the premises for those needing introduction to a landlord, through the nomination rights that they have acquired previously, through freeing up land for development or transferring ownership to a company that wants to be a registered social landlord.
The council’s social services commissioners then purchase the services needed, often from the same entity, but in separately underpinned contracts, the tenancy invariably, now, being for the client or their Mental Capacity Act authorised representative to sign, so that the care and the accommodation are never purchased from the same entities, and hence (the sector believes) never provided ‘together’, even if both strands are delivered by the same company.
If – when our policy makers dreamt up supported living as a model, they had had any idea of the impact of incapacity law on contract tenancies (ancient common law), the process rights underpinning the cessation of what had been a person’s continuing NHS health care status whilst in long stay hospital (Coughlan, 1999), and the extent of the implications of the late 1990s’ Bournewood case for our commitment to article 5 of the European Convention – in other words, if policy makers had ever recognised that you have to be legally literate to think, strategically, – they might have thought to change the HB and benefits rules so as to cover people in specified types of residential care homes, instead of triggering the wide scale de-registration of establishments offering care together with accommodation.
[Oops, I may just be talking here about Preserved Rights sorts of rules but these were canned in the early 2000s….]
That would have had the following impact:
- Councils would have been able to make offers of modernised and properly resourced residential care placements that at least LOOKED like what some of the best supported living has to offer nowadays;
- HB could have been used to pay for charges that would have been, then, in legal form, National Assistance Act charges, rather than rent.
- There might have come about a separate registration category for people with lower levels of dependency who would be accessing colleges and other facilities and who hence needed income support – so that they could get that, too;
- The Deprivation of Liberty Safeguards would been available to make legitimate the proportionate and essential benign supervision and control of anyone with more than moderate cognitive impairment, and we would not have needed deputyship to justify the signing of tenancies;
- We would not be having to use the Law Commission to re-think the Safeguards so as to expand them to fit a structure that never fitted into the DoLS vision. That is, a structure where the premises landlord/owner is not, and never could be the entity doing the deprivation, but where the entity which is being paid under contract by the council to do it, will be in the invidious position of being merely permitted guests in the person’s tenured or owned property – a hopeless position from which to manage a setting well enough to be able to cope with a duty of care arising from whatever might happen when staff are on duty there.
Such is life. It didn’t happen that way, and now we have many people with learning disabilities cared for in tenancies with 2-24 hour support going in or located there in the premises themselves. But it is done disingenuously, so as to get AROUND the law, in my experience:
- How honest is the sector to the CQC on the integration of the care and accommodation arrangements? Different regional offices within CQC interpret the law differently and some offices change their expectations of providers as soon as the inspector vacancy is re-filled with a new broom, in my personal experience as an adviser.
- How many landlords have got managing agents under contract, providing support or care so as to get around the rules on capped housing benefit, whilst making it look as if the care or support comes in to the person quite separately from the premises owner? If it’s the care, and the provider is an agent of the premises owner, that means that in law, the owner IS providing the care AND the accommodation – so is it together, or is it separate, then? Alternative Futures said that the forbidden integration of the care and the tenure, could just be de facto, and still trigger the need for registration.
- How many prosecutions have ever been brought by CQC since Alternative Futures, regarding the de facto integration of arrangements made for tenure and personal care?
- How many landlords of supported living have given their nomination rights for tenancies, either in entirety to just one council’s social services’ team, or even to just one support agency – so that no-one gets IN who does not need special care from the council’s LD team, or doesn’t get in unless the care agency has accepted a contract for the care of the person wanting a tenancy from one council or another?
- Even though we now have continuing ordinary residence applicable to people moving into specified accommodation as tenants, how many RSLs offer accommodation for occupation by say 4 tenants all with different commissioners, such that NO SAVINGS to any one council have been able to be extracted – in comparison with what each of those people would need for their individual personal budget? I would bet – very few indeed.
- Did you ever see an advert for a spare room on an ordinary mainstream lettings site that says: “applicants must have assessed eligible Adult Social Care needs and be ordinarily resident in this county”?
- How many councils offer everyone they possibly can, a direct payment for care, OTHER than to the people in supported living, in case they decide not to use the in-house on site provider, and then ask for a higher DP rate?
- An IMCA is not required when moving an incapacitated person OUT of a care home but only when moving a person into one. But the best interests consultation rules would still be applying to any decision to be made by a person lacking capacity about where to live; yet how many local authorities’ review teams have been encouraged to review people out of care home care, without ever involving the person’s significant others, just by taking a person on an outing and showing them a bright room with a TV on the wall and saying ‘it would be cool to live here, wouldn’t it’? Are they getting clued up Care Act advocacy now, I am wondering, on review?
- How many councils get people’s mums and dads to sign the tenancies, still, even after 10 years’ worth of the Mental Capacity Act making it clear that best interests decisions cannot be used to validate contracts by signing ‘FOR’ someone?
And most importantly, how many councils’ Resource Allocation Systems are based (for the LD client group, that is) on the premise that a person WILL live in shared care arrangements, thereby artificially deflating everyone’s anticipated personal budgets?
At an extreme, where this is done not just for night time care but as a solution to the shutting down of day care or the unsuitability of local universal services for day time occupation of the client group – this would mean requiring people do things that their housemates were doing, just because of staff ratios, even if it didn’t make the person happy.
How is that normalising a person’s life or personalising and de-institutionalising the model of care?
Legal issues that matter, if we’re going to talk about ‘turning the clock back’.
Rob Greig cites current policy but Valuing people 2009 was set to last until 2012 only.
The 2009 version of the strategy made one reference to tenancies and none to the mental capacity act related aspects of holding a tenancy.
It said this: “Many people with learning disabilities do not choose where they live or with whom. More than half live with their families, and most of the remainder live in residential care. The Government will deliver a programme of work to ensure that mainstream housing policies are inclusive of people with learning disabilities.”
And yet housing law says that if you lack capacity to make a contract for your accommodation you cannot be an applicant for housing through the homelessness provisions of the Housing Act, and that has not been changed or even ‘explained’ so as to cover those who have an appointed Deputy!!
The 2009 strategy said this on human rights: adults with learning disabilities have, and should be able to enjoy on an equal basis, the same human rights as everyone else. It sets out the further steps that are needed for people with learning disabilities to achieve freedom, respect, equality, dignity and autonomy in their everyday lives.’
We are all treated equally: the Human Rights Act does not provide a right to a home, let alone a home of one’s choosing, if one needs state support to pay for the care, to cope. A person without a disability is not guaranteed enough Housing Benefit to live wherever they want, are they?
Rob says that the supported living model ‘provides people with more certainty about where they live, greater control over their lives, ….’
In theory, yes, but if one lacks capacity, and an issue of incompatibility arises in the setting, one tenant or the other WILL be moved on best interests grounds and one’s deputy persuaded to surrender the tenancy meanwhile, because of the ongoing rental commitment, which is contractual, and the tenant’s own.
He goes on ‘….and enables them to change support provider without the need to move house.’
Again, right in theory, but not if the council won’t acknowledge that the direct payment rate may well need to go up in order to enable that change of provider – not many will want to set foot on another provider’s turf and the person receiving services may need extra support for administration of the payment.
Rob refers to Rochdale’s proposal for its Cabinet to the effect that it could save £1.4 million in 3 years by reviewing and commissioning specialist care home care and other options such as Shared Lives, for people currently in supported living.
In its report, Rochdale has noted that
- “Some people may not be able to benefit from having a tenancy or be able to access local community services, for others this model of care may provide more support than the person actually needs….. Living in close proximity to 2 or 3 other people can be difficult and achieving a ‘match’ of residents is regularly an issue. This can either lead to people sharing a home with others whose needs are not necessarily similar to their own, or voids in homes which leads to increased costs as 24/7 care still needs to be provided for the remaining residents…. People with learning disabilities are living longer and as a consequence are developing age related conditions such as dementia in addition to their learning disability. For some forms of learning disability there is an increased risk of developing dementia and the condition also develops at an earlier age. Remaining in a small group home with other service users who do not have similar needs is not always the best option for older people, or for the people that are living with them. A placement in a residential care home specifically designed to meet the needs of people with learning disabilities may be a more suitable setting for some, for others supported housing or an extra care housing setting may be a positive option. There are now more alternative options for people with moderate learning disabilities e.g. core and cluster models of support, extra care housing and shared lives placements.”
Rochdale’s plans do recognise that some people will resist moving from homes where they have secure tenancies. That, together with the pre-Act Perry Clarke case, holding that it would be a disproportionate infringement of article 8 rights to respect for one’s home to expect a person to move to another tenancy represents some actual progress legal awareness in the sector, to my mind, rather than a turning back of the clock.
I could not agree more with Rob that the answer is certainly not a return to a large-group, residential care model where rights are taken away and lower staffing ratios lead to reduced life chances. Evidence based commissioning to provide people with just enough, would help, but people do not all want to live with others with the same degree of difficulty, or need for support, so there will always be ‘inefficiencies’.
The real solution is the social care sector standing up to government and making the inadequacy of funding a political issue, which I can only think that ADASS and the LGA do not seem to think is a necessity. If it won’t happen through the leadership, it will only happen through judicial review, and legal literacy being spread through advocates, families, providers and social workers.
One particularly noteworthy irony, if Rochdale is serious, is this: the cost capping policy approach that we are seeing emerging from CCGs and some brave or deluded councils across the country now,  may well end up actually first being tested in the courts, in relation to a person with a learning disability, lacking in capacity to fight back, through the courts, despite a hugely more generous sum of money always having been spent on the individuals in the LD client group, than on older people’s care budgets, in the first place.
The wheel represented by what’s the currently most fashionable model for care, is bound to keep on turning, if the questions being asked about the actual sufficiency, appropriateness and person-centredness of the content of a care plan, are just not legally literate ones, in my view.
 largely intended for determining the offer to be made in a capacitated older person’s situation (‘Our offer is residential care or you could always choose to stay at home here, with what it would have cost us to meet your needs, there’)
Implications for Shared Lives Carers
The Shared Lives community of Carers, have long been being pushed into doing more and more for increasing needs clients, for a flat rate, just in return for self employed status and absence of regulation in person.
Not a great deal to swallow, I am thinking, when every person’s right is to a sufficient personal budget for the meeting of their needs. The Shared Lives carers’ community is going to need a HELL of a lot of legal literacy if they are to resist being the next sector after the housing sector to be expected to shoulder the cost of the statutory duties of councils, chronically underfunded by successive government.