The rant – oops, the blog – this week, is about the yawning chasm out there when it comes to advice, information and myth that is operating in the world of adult social care.
Next week it will be about the manifestos because I’m going to my local hustings – but just have a read of this – a one-off question received by the CASCAIDr CIC service, this week.
“My adult son wants to move into accommodation locally with his 2 friends. He is familiar with the area: he can catch specific local buses, walk everywhere ie to the gym and his special needs club, and dance facilities.
We own a private house locally that we can rent to a housing association who will deal with housing benefit and we know of providers who are interested in delivering a care package.
The Council has said that ‘they are not setting up any further supported housing services through families’ properties’ and indicated that our son must go into supported living in another area, away from everything he knows locally and is familiar with.
Can my son not choose where he lives? The Council says they will only ‘support him in the home with drop-in support’.
Can the council do this? Is there a process to appeal this?”
If a person is living in their own home, under a tenancy or any other arrangement, it is not lawful to make meeting the needs conditional upon them ‘upping sticks’ and moving to somewhere where it’s convenient for the council to have them go, for the purposes of sharing care with others at places where councils know that there’s a vacant bedroom. The council will not be offering to pay for or contract for the accommodation element, even where they DO know of vacancies, will they?
Once he is in a house that has been let on a long lease to a housing association the council will have to act under the Care Act. They COULD form a view that his needs can only be met in a care home, if his needs are really complex but it doesn’t sound as if they are, and they would have to justify any such offer in accordance with public law principles or else face a judicial review, a complaint or a referral to the Monitoring Officer.
Supported living is not a service that can BE bought, under the Care Act. It is not the provision of accommodation by the council. It is only a non-residential package of care, delivered into a place where a person lives, or via a personal budget with which the person acts as their own commissioner, or through a parent as an Authorised Person to hold the budget as principal under s32 of the Act, if the service recipient does not have capacity to understand the essence of a direct payment. The accommodation is the context for the care, but the person has provided it for him or herself, through the mechanism of signing a tenancy.
Supported living accommodation is not something that is generally provided directly by any social services department. Access to it is facilitated, by signposting the person to a tenancy where the council has heard of a vacancy or has nomination rights for whatever reason to do with the history of how the landlord came to own the property in the first place.
The question as to whose choice this is, though, is in fact a many-layered question.
The couple’s son would not be able to make this choice if he could not afford the rent. He would only be able to afford the rent if he qualified for Housing Benefit. If one’s parents are not the landlord, and a housing association IS the landlord, that should be feasible because it does not matter who the freehold owner of the property is, with regard to housing benefit rules and reasons for declining eligibility. However, to be eligible for housing benefit, one must be liable for a charge for accommodation. That liability arises, usually, with a reputable housing association on the scene, through an assured shorthold tenancy, in writing.
Signing a tenancy is only possible if the person has mental capacity to understand the basics of a tenancy, ie the concept of paying for the right to live there and the notion of some basic rules for good behaviour. It does not matter if the person needs care and support to stick TO the rules and doesn’t understand the workings of the Housing Benefit system. But a person will need a deputy if they do not have capacity to understand the basics of a tenancy, and not sufficient to be able to grant a lasting power of attorney (ie knowing that the person needs help with regard to financial and property decision-making and could well deteriorate.)
There is no appeal against nonsense like this from a council, but there is a form of legal proceedings through which to challenge it. It’s called judicial review, for which a person needs to qualify for legal aid, with under £3K in savings, for protection against a costs order if the judge for some unfathomable reason were to disagree and uphold the council’s decision.
Alternatively, the parent or the person affected could challenge the stance by way of the Monitoring Officer. That is every council’s chief governance officer, with his or her own statutory duty, as it happens, to investigate any allegation of contraventions of any enactment (the Care Act) or rules of law (public law principles) – so as to avoid judicial reviews which are a distraction for everyone.
The above position would be a clear-cut arbitrary fetter of care planning discretion, unless the council has identified another means to meet needs that would be able to be justified as professionally objectively therapeutically appropriate, compliant with human rights, promoting his wellbeing, and abiding by the Mental Capacity Act. That is not a low threshold for a council to surmount, just because it’s got a vacancy 15 miles away in an existing service.
Nobody can be expected to do well by being moved out of area, (especially if that’s another council area altogether) and to make that the only offer, when the option right where it needs to be located is something that can be done, and is being offered through your own efforts, and provide accommodation for two other people he WANTS to live with, like any other person gets to experience, is likely to be regarded as irrational, indefensible, and overlooking human rights to respect for private and family life.
Alternatively, a parent or the person affected can raise this by way of a complaint and then to the Ombudsman, but this would be too slow for the situation this family finds themselves in.
What CANNOT be insisted upon is care from any particular provider, if the person (or their informal supporter if the person lacks capacity) wants a council-commissioned service.
The care plan content must meet needs, but if a defensibly adequate care plan were to be drawn up, with a defensibly sufficient budget, then even if it does not have all that one might have wished to see in it, that does not make it unlawful.
And despite all the rhetoric about person-centred care planning, there is no right to choose a particular provider of the care, in this scenario.
There is the option of a direct payment for becoming one’s own commissioner and choosing a provider, to work within the defensible budget that has been set.
People in supported living are often told that they cannot have a direct payment but without the council bothering to articulate why it is not considered appropriate in terms of the Care Act justifications for refusing a direct payment, which are for the council to express, transparently.
It is usually because of existing arrangements with one single provider for night-time support which is shared between all the tenants and the impact on cost-effectiveness if some tenants opted out of that and chose providers of their own.
The assumption is that if one signs a tenancy in supported living, one is also accepting that the care that will have been described as having been organised on a per occupant basis for overnight supervision will BE shared, but of course the tenancy is separate from the right to a personal budget for the care – the clue is in the name.
It’s an individual budget for meeting the needs – and whilst the person’ plan (with the budget inside it, under s25) can be combined with someone else’s where there are savings to be made by sharing, a care plan can only BE combined with someone else’s with each person’s consent (see s25(11) of the Care Act).
This must mean their capacitated consent.
There is no provision for best interests decision-making ‘in lieu’ of capacitated consent, on that issue, not even for a person with a loving and sensible parent to be consulted, who very much wants to see their son or daughter move into supported living.
We think that this is because the person who’s going to be receiving the care may be someone who does not have capacity to work out that the right to 1/3 of a care worker, contingent on the care worker not being busy with one or other of the co-tenants’ needs, is, in fact, not always going to be adequate.
Risks can of course be evaluated and embraced, but only for oneself, in this world, not for another adult, unless one has a welfare deputyship or a welfare attorney, perhaps.
There is no case law on how arrangements for supported living nationwide are being made in the way that is standard, given this section.
The whole of the local authority world, and the supported living industry, the parents of people with learning disabilities and the lawyers operating in the Court of Protection would seem to be content with this situation. We can only point it out.
The important thing for the success of this planned venture, is the size of the young man’s budget, and it must be needs-driven, not service-led or arbitrarily cost-capped, in order to be lawful.