This one goes like this:
“Of course we will meet your needs. But if you’re a person with a learning disability, our approach is that you have to live in shared care to get our services, even if that means moving out of your family home, into a tenancy that we’ve er, ‘secured’ for you…”
If anyone says this to a person you’re concerned about, the first thing to do is to ask them politely
“Where’s the legal authority for making your s18 duty to meet need conditional upon X moving to somewhere that suits the council, please?”
The care manager will probably say this: “We are not obliged to meet a person’s needs in their own home” or “We can meet need by pointing that things that are available to the person…. even if we’re not paying for them”.
And neither of those stances – as far as they go – are untrue, as a matter of law. One can’t just say to the council, if one depends on the council for the money or the organisational skill to provide essential services ‘I want that one’ like the character in Little Britain (!) Nobody else, including the client or their family, has the legal right to make the decision as to what to offer, FOR the local authority; the law is clear on that, post Care Act, as well as pre-Care Act. The person’s right is to be at the centre of the process and to lay all their hopes fears and aspirations onto the council during assessment and care planning; but the council only needs to have regard to all of those things, conscientiously, and can take its own resources difficulties into account, in relation to HOW it meets needs.
The reason, therefore, that a council CAN say ‘We don’t have to meet people’s needs in their own homes’ is that there are some people to whom it would be able to make an appropriate and adequate offer of care to, by way of a placement in a care home. A care home, please note, where the home provider would be entitled to expect to sign up to a local authority contract for care together with accommodation and Ta-Da – there would be the job done – a package offered by way of a care plan – and one that could either be refused or accepted. The vast majority of people in need of care could probably be provided for adequately and appropriately in a care home; and only a small minority would be likely to get a court to uphold a stance that the only professionally assessed profile of need that the assessment process should have led to was one that compelled provision in some other sort of setting or the setting in which they were already currently living.
The difference with a tenancy, however, is that the council does not and cannot and may not pretend that it is the landlord if it is not in fact in possession of occupation rights of that property. It may have done 99% of the persuasion of a housing association, landlord, or shared lives carer with regard to letting the person into occupation, but the grant of a tenancy is not a service that is part of social services’ functions under the Care Act. A council can suggest to a person that they might like to move; or facilitate their moving or even incentivise them to move, but not MAKE them move, other than by Mental Capacity Act compliant implementation of a move into a care home (for someone lacking in capacity in that regard) or under an order of the Court of Protection on the basis of substituted decision making to sign the tenancy once a best interests decision has been made.
To make a person’s service conditional upon their moving – when that move would necessitate their agreeing to obligations in connection with a tenancy, covering rent, covenants and upheaval, is not open to any social services council. It is, simply, not within a council’s gift to PROVIDE a tenancy, unless that council IS the landlord of the property. But even then, it is a really deep legal point as to whether a county council can hold land and OFFER a tenancy to someone, when it has no housing functions to discharge: it is a question that involves the Localism Act which is well beyond the scope of these myths (and this site).
In the social care context, there is a decided case (Perry Clarke) in which Sutton was successfully judicially reviewed on the basis of the pre-Care Act law, for ‘requiring’ a man to move from his home of 4 years, where services had been paid for by another council, and now Sutton had been obliged to take over that role. The care provider who was being regarded as cost-effective elsewhere had not even been asked to complete a care plan, but nevertheless the council had said it would cut the budget provided to the man for the payment of the original provider to less than half, when the evidence was that the man’s seizures, although they only happened rarely, were unpredictable, even with the aid of technology. So there was no justification for assuming that less than half of the budget would suffice and the judge found against the council.
In that case the judge put the aspect regarding having to move out, down to an intolerable infringement of the man’s article 8 human rights, which is helpful, but not necessary, in our view, in light of the above analysis.
That is to say, the Care Act duty to meet needs is a duty, and can only be provided in one’s own home OR in a care home. If one is offered supported living, one may well thrive there and want to take up the opportunity – and then one’s own housing arrangement is the context for the care plan – but “supported living” is not a service that the council can buy. Councils can purchase care, support or different kinds of accommodation, some of which have care bound up in the contract, but it’s not lawful to buy care together with accommodation without that service being seen as a care home. Social Care Councils can MAKE offers of placements to people whose needs can only be met if they are PROVIDED with that accommodation under the Care Act, but that only happens very rarely. In a case where that is not the approach being taken, it MUST be the law that one cannot be made to go into shared care, given a budget that is pre-capped to a shared care framework price, or regarded as only due a service if one is prepared to take up the tenancy. Section 25(11) of the Act appears to bear that out, please note: no combining of a plan, and hence a budget, without the agreement of all adults concerned!
Why do we say that it can’t be bought, when councils have whole teams of commissioners, buying what they call supported living? We say so because Supported Living by dint of clear registration law MUST NOT comprise even de facto integration of care together with accommodation; the fact that the tenancy comes from the landlord and is an arrangement in contract with the client, is what saves Supported Living from being registered residential care, and from which all advantages to do with the DWP benefit system of being in supported living, including SDP for living ‘alone’ even when one is not alone, then flow.
Once one HAS a tenancy, or has been let into accommodation (other than by way of a local authority contract with a provider, covering the accommodation as well as the care, which will probably then be called ‘support’ rather than care), one may indeed receive services, but they are then home care services in what has become one’s own home, afresh, when one took up the tenancy.
The acid test of it is this: can you imagine a council saying to a couple of people who are married, despite their learning disabilities – ‘One of you must now come with us and live like a student again, over THERE, in that shared house, because your needs aren’t of the same category for the purposes of our framework agreement with providers’?!!
People put under pressure to move into shared care settings or told that they can’t have a direct payment for at least part of their budget in such settings, (or their families or formal advocates) need to say this, if the arrangements are not as desired:
- Under what legal provision is the Council acting, with regard to the tenancy you are proposing I sign? How is that suggestion able to be seen as something that you are ‘doing’, please, to meet my needs?
- What power do you have, please, to make the duty to meet my needs conditional upon where I choose to live?
- Am I right that you will not put down on paper in the care plan that you think specified accommodation as defined, is the only way of meeting my needs, for care planning purposes? If you put it down you will remain liable for my care costs, wherever I end up, remember, under s39… but you’d still only be paying for my care, and not my accommodation, so I still don’t get why you think you can tell me to live with other people whom I don’t KNOW/LIKE/HAVE ANYTHING IN COMMON WITH – before you will meet my needs?
- What is it about my living in this shared care setting, now or in the future, that gives you any special power to regard a direct payment as not appropriate as a means of meeting my needs, please?
- Please just ensure my family / relatives get a proper interim care package in the meantime because you’ve already found my needs meet the eligibility criteria.