Legal aspects of Legal aspects of housing for people housing for people

with dementiawith dementia

Belinda SchwehrBelinda Schwehrwww.careandhealthlaw.comLegal Trainer and ConsultantLegal Trainer and Consultant

01483 81216101483 812161belinda@careandhealthlaw.combelinda@careandhealthlaw.com

Last year’s issues, revisitedLast year’s issues, revisited The effect of incapacity, in relation to the The effect of incapacity, in relation to the

existence of a valid tenancy – registration and HB existence of a valid tenancy – registration and HB problems…(some developments soon, maybe)problems…(some developments soon, maybe)

The potential legal fall-out if relatives sign The potential legal fall-out if relatives sign tenancies without formal authority for their loved tenancies without formal authority for their loved ones – HB and registration problems in spades…ones – HB and registration problems in spades…some developments here under the MCA.some developments here under the MCA.

The problem of dementia sufferers not being able The problem of dementia sufferers not being able to abide by covenants, unsupported – to abide by covenants, unsupported – aggravation, nuisance, hasty and inappropriate aggravation, nuisance, hasty and inappropriate and potentially unlawful, enforced moving on…and potentially unlawful, enforced moving on…(some broader developments here)(some broader developments here)

Ordinary residence, and which authority pays, for Ordinary residence, and which authority pays, for those not funding their own retirements (no those not funding their own retirements (no developments here!)developments here!)

This year’s issuesThis year’s issues The Mental Capacity Act – will it The Mental Capacity Act – will it

make any difference? Lawful make any difference? Lawful detention, under the Protective Care detention, under the Protective Care regime, is not going to apply in regime, is not going to apply in people’s own homes…people’s own homes…

Deputyship, welfare-decision making Deputyship, welfare-decision making and surrender of tenancies.and surrender of tenancies.

New forms of tenancy promised for New forms of tenancy promised for the future – with enhanced powers of the future – with enhanced powers of management for providers of management for providers of supported housing - the Law supported housing - the Law Commission’s proposalsCommission’s proposals

Tenancies and services for people Tenancies and services for people with mental impairmentwith mental impairment

A person whose capacity to understand the contract you’d A person whose capacity to understand the contract you’d like them to sign, is merely a bit in doubt, should be like them to sign, is merely a bit in doubt, should be presumedpresumed to be capable of understanding it. They can sign to be capable of understanding it. They can sign with a mark if they can’t write, or their insightful assent can with a mark if they can’t write, or their insightful assent can be witnessed and corroborated by a third party.be witnessed and corroborated by a third party.

A person who is still mentally capacitated, regarding taking A person who is still mentally capacitated, regarding taking on a tenancy obligation, can properly sign on a tenancy obligation, can properly sign todaytoday, for a , for a tenancy, binding themselves to pay and to be ‘good’ even tenancy, binding themselves to pay and to be ‘good’ even when they are likely to deteriorate. The when they are likely to deteriorate. The validityvalidity of the of the tenancy or those obligations under is not affected by any tenancy or those obligations under is not affected by any later incapacity. later incapacity.

An appointee cannot sign a tenancy for a person – the An appointee cannot sign a tenancy for a person – the appointee only has authority to manage that person’s appointee only has authority to manage that person’s benefits – not bind them contractually to a set of promises.benefits – not bind them contractually to a set of promises.

A direct payment helper/manager cannot sign a tenancy for A direct payment helper/manager cannot sign a tenancy for someone incapacitated. someone incapacitated.

Incapacity, home care services and tenanciesIncapacity, home care services and tenancies If a landlord enters into a tenancy, or a provider If a landlord enters into a tenancy, or a provider

enters into a care contract with a client who enters into a care contract with a client who probablyprobably lacks mental capacity, but the person lacks mental capacity, but the person still signs their own part of the contract, despite still signs their own part of the contract, despite not understanding it, there is still a presumption not understanding it, there is still a presumption of capacity. of capacity.

A person who is clearly A person who is clearly alreadyalready mentally mentally incapacitated should not be asked to contract incapacitated should not be asked to contract directly with a support provider or a care agency, directly with a support provider or a care agency, or sign a tenancy. It would be abusive to insist. or sign a tenancy. It would be abusive to insist.

A landlord cannot be made to contract with A landlord cannot be made to contract with people who lack capacity – or their people who lack capacity – or their representative - it is an objectively good representative - it is an objectively good reason for refusing to accept someone as a reason for refusing to accept someone as a tenant, even under the Disability tenant, even under the Disability Discrimination legislation.Discrimination legislation.

Incapacity, home care services and tenanciesIncapacity, home care services and tenancies

But if a landlord goes ahead, then the contract or tenancy is But if a landlord goes ahead, then the contract or tenancy is voidable (in England) (but void in Scotland) at the behest of voidable (in England) (but void in Scotland) at the behest of the client or their later authorised representative – if it’s the client or their later authorised representative – if it’s clear that the other party must have known the person was clear that the other party must have known the person was incapable of understanding what was signed. incapable of understanding what was signed.

The vulnerable adult is probably The vulnerable adult is probably stillstill then liable to pay a then liable to pay a reasonable fee for the services or accommodation that reasonable fee for the services or accommodation that they’ve benefited from, regardless, based on restitutionary they’ve benefited from, regardless, based on restitutionary principles, either because the arrangement was for what principles, either because the arrangement was for what the law regards as ‘necessaries’ or because occupation of the law regards as ‘necessaries’ or because occupation of land has always given rise to a liability to pay what’s called land has always given rise to a liability to pay what’s called ‘damages for use and occupation’. ‘damages for use and occupation’.

The only good effect of ‘avoiding’ the tenancy would be The only good effect of ‘avoiding’ the tenancy would be that the tenant would not be able to be sued for damages that the tenant would not be able to be sued for damages for breach of the covenants for good behaviour. But if the for breach of the covenants for good behaviour. But if the tenancy is avoided by the tenant’s representative, there is tenancy is avoided by the tenant’s representative, there is no right to remain in occupation either, so it may be best - no right to remain in occupation either, so it may be best - for practical purposes - to leave it in place and take the for practical purposes - to leave it in place and take the consequences of liability for conditions which one can no consequences of liability for conditions which one can no longer actually keep to.longer actually keep to.

So what are the prudent and ethical options?So what are the prudent and ethical options? EitherEither a lawfully authorised representative signs a lawfully authorised representative signs forfor the the

incapacitated person – that might be an LA deputy, a holder of a incapacitated person – that might be an LA deputy, a holder of a Single Order (next year), an enduring power of attorney holder, a Single Order (next year), an enduring power of attorney holder, a lasting power of attorney holder – next yearlasting power of attorney holder – next year

NB A person who has given someone a valid Enduring Power of NB A person who has given someone a valid Enduring Power of

Attorney and then lost capacity can have their tenancy signed by Attorney and then lost capacity can have their tenancy signed by that attorney on their behalf, even though the incapacitated adult that attorney on their behalf, even though the incapacitated adult may not understand a word of it, personally. may not understand a word of it, personally.

The attorney won’t be able to force the tenant to conform to good The attorney won’t be able to force the tenant to conform to good behaviour covenants, when the person loses capacity, but at least behaviour covenants, when the person loses capacity, but at least they are binding, no matter what, from the landlord’s perspective, they are binding, no matter what, from the landlord’s perspective, and breach would be actionable in damages. or the LA contracts and breach would be actionable in damages. or the LA contracts for him or her under its own powers under the NAA, making the for him or her under its own powers under the NAA, making the contract very probably a contract for care together with contract very probably a contract for care together with accommodation.accommodation.

Or a third party signs personally Or a third party signs personally in their own namein their own name for the liability for the liability – this could be a family member, or a trustee of a formal trust. – this could be a family member, or a trustee of a formal trust.

Or (and this is not prudent in my view) the provider takes the Or (and this is not prudent in my view) the provider takes the risk… and provides the services regardless of the lack of a valid risk… and provides the services regardless of the lack of a valid obligation to pay. obligation to pay.

Incapacity and contracting privately for care Incapacity and contracting privately for care services for incapacitated people in the futureservices for incapacitated people in the future

Under the Mental Capacity Act, in 2007, a person is going to Under the Mental Capacity Act, in 2007, a person is going to be able to ‘pledge the credit’ of the client without any other be able to ‘pledge the credit’ of the client without any other form of agency status or financial authorisation, for the form of agency status or financial authorisation, for the purchase of purchase of goodsgoods and and servicesservices related to care. related to care.

So the informal third party will at least have authority to So the informal third party will at least have authority to promise that the client will pay, but of course won’t have promise that the client will pay, but of course won’t have the authority to bind the client, in any other way, to the authority to bind the client, in any other way, to contractual commitments. See s8 MCA 2005contractual commitments. See s8 MCA 2005

Accommodation and shelterAccommodation and shelter however, would not appear to however, would not appear to be covered in the concept of ‘necessaries’ so relatives be covered in the concept of ‘necessaries’ so relatives won’t be able to use this new statutory power to promise to won’t be able to use this new statutory power to promise to pay pay rentrent..

Establishing capacity to sign a Establishing capacity to sign a tenancy, now and in the futuretenancy, now and in the future

In this particular context, making a valid contract In this particular context, making a valid contract probably means understanding the probably means understanding the essentialsessentials of of ‘the deal’: ‘the deal’:

The basic concept of The basic concept of moneymoney – ie – ie The concept of The concept of owningowning one’s own money; one’s own money;The concept of The concept of exchangingexchanging one’s own one’s own money, in return for something;money, in return for something;

The concept of The concept of promisespromises and and socialsocial rulesrules (even (even if the person needs help to manage to abide by if the person needs help to manage to abide by what’s been promised) - iewhat’s been promised) - ie

No No damagedamage to the property; to the property;No No violenceviolence towards others living there; towards others living there;

Clients in extra care or supported living Clients in extra care or supported living facilities probably divide into four groupsfacilities probably divide into four groups

Those who Those who diddid understand what they signed. understand what they signed. Those who Those who didn’t signdidn’t sign, or didn’t , or didn’t understandunderstand at the time, at the time,

but who but who could’ve been helped if care managers had could’ve been helped if care managers had grasped the importance of the issuegrasped the importance of the issue..

Those who couldn’t have understood, and can’t, no matter Those who couldn’t have understood, and can’t, no matter what efforts might now be made - they need a what efforts might now be made - they need a receiverreceiver to to sign for them (a ‘short order’ form of this regime, currently sign for them (a ‘short order’ form of this regime, currently works to give the holder, clear legal authority to sign a works to give the holder, clear legal authority to sign a tenancy as the agent of the incapacitated person for tenancy as the agent of the incapacitated person for allall purposes – it will be called a Single Order after April 2007)purposes – it will be called a Single Order after April 2007)

Those whose care needs are actually inimical to the Those whose care needs are actually inimical to the independent living culture for the others there – ie those independent living culture for the others there – ie those who need who need minute by minute close supervisionminute by minute close supervision to keep them to keep them and others safe.and others safe.

What about where the client is not actually What about where the client is not actually capablecapable of refusing care? of refusing care?

The $64,000 question, in my view….The $64,000 question, in my view…. If a person cannot physically refuse care, or does If a person cannot physically refuse care, or does

not have the capacity to communicate their not have the capacity to communicate their refusal of it, or has no concept of any option other refusal of it, or has no concept of any option other than acquiescence, they could still be a person than acquiescence, they could still be a person who was in their own home, under a tenancy they who was in their own home, under a tenancy they had signed when capacitated, or in their own had signed when capacitated, or in their own home under a tenancy signed by their attorney or home under a tenancy signed by their attorney or receiver, or a licence to occupy, from their receiver, or a licence to occupy, from their parents, or grown up offspring, for instance. parents, or grown up offspring, for instance.

No amount or intensity of care can then No amount or intensity of care can then magically turn their domestic residence into magically turn their domestic residence into a care home. a care home.

Incapacity on its own is therefore not a Incapacity on its own is therefore not a registration danger.registration danger.

What about where the client is not actually What about where the client is not actually capablecapable of refusing care? of refusing care?

However, if the person acquired the tenancy However, if the person acquired the tenancy since having acquired that profile of dependency, since having acquired that profile of dependency, it seems inconceivable to me that they it seems inconceivable to me that they could at the same time as being in that could at the same time as being in that state, have had capacity to understand the state, have had capacity to understand the tenancytenancy. and hence, without a receiver/short . and hence, without a receiver/short order holder or attorney having signed, I would be order holder or attorney having signed, I would be worried about CSCI attention – on the basis that worried about CSCI attention – on the basis that the arrangements were actually, in practice, for the arrangements were actually, in practice, for care together with accommodation, even if the care together with accommodation, even if the tenancy didn’t mention care or support at all. tenancy didn’t mention care or support at all.

The care The care purchaserspurchasers (usually the LA) have the (usually the LA) have the right to provide care in the absence of a dispute right to provide care in the absence of a dispute about the person’s best interests, but would not about the person’s best interests, but would not have had the power to sign the tenancy for the have had the power to sign the tenancy for the tenant (unless a deputy etc). tenant (unless a deputy etc).

Registration mattersRegistration matters Incapacity matters in registration terms because the Incapacity matters in registration terms because the Alternative Alternative

FuturesFutures case makes it clear that a document merely case makes it clear that a document merely calledcalled a a tenancy is not an absolute answer to the CSCI Inspectors, when tenancy is not an absolute answer to the CSCI Inspectors, when they come knocking… if the tenancy is potentially invalid, or not they come knocking… if the tenancy is potentially invalid, or not directly made between the tenant and the landlord, in reality, directly made between the tenant and the landlord, in reality, registration consequences can flow.registration consequences can flow.

The mums and dads had signed FOR the clients, and no-one had The mums and dads had signed FOR the clients, and no-one had been to the Court of Protection for approval – but the judge was been to the Court of Protection for approval – but the judge was prepared to overlook that issue, because of the more serious issue prepared to overlook that issue, because of the more serious issue about about what was being provided in that one tenancy what was being provided in that one tenancy documentdocument..

The Courts have now dealt finally with that case, and have said The Courts have now dealt finally with that case, and have said that notions of ‘choice’ are legally irrelevant to the question what that notions of ‘choice’ are legally irrelevant to the question what is a registrable care home and what is not….is a registrable care home and what is not….

The tenancy in that case was an apparently ordinary tenancy, The tenancy in that case was an apparently ordinary tenancy, expressly incorporating expressly incorporating supportsupport. The landlord was separate from . The landlord was separate from the the carecare provider, as has been advised to be key, by eminent provider, as has been advised to be key, by eminent lawyers, for years…. But the landlord was legally responsible for lawyers, for years…. But the landlord was legally responsible for the support element, as was necessary under THB rules – and the support element, as was necessary under THB rules – and which has just been held necessary by a decision of the Social which has just been held necessary by a decision of the Social Security Commissioners in relation to full HB above the local Security Commissioners in relation to full HB above the local reference rent. reference rent.

Registration mattersRegistration matters The Court found that the tenancies that had thereby been The Court found that the tenancies that had thereby been

created, were not ‘normal’ tenancies. The 11 days of created, were not ‘normal’ tenancies. The 11 days of evidence before the CST had shown that there was no evidence before the CST had shown that there was no significant or real difference in the care regime, before and significant or real difference in the care regime, before and after the grant of the tenancy, after the grant of the tenancy, and as the input had and as the input had undoubtedly been ‘care’ before,undoubtedly been ‘care’ before, so, in this particular so, in this particular case, the so called ‘support’ given afterwards, was case, the so called ‘support’ given afterwards, was stillstill ‘care’, in fact. ‘care’, in fact.

Therefore given that there was Therefore given that there was oneone contract, between the contract, between the landlord and the parents (probably in their own names), for landlord and the parents (probably in their own names), for what what hadhad to be seen as ‘care’, in the particular context, to be seen as ‘care’, in the particular context, together withtogether with the accommodation, that is why it was the accommodation, that is why it was registrable.registrable.

So So dodo be careful. be careful. Avoid any situation in which the care Avoid any situation in which the care is being provided in one integrated contract, is being provided in one integrated contract, together with the accommodationtogether with the accommodation. That will trigger . That will trigger potential registration, if the service amounts to assistance potential registration, if the service amounts to assistance with bodily functions, which may be not what with bodily functions, which may be not what anyoneanyone desires.desires.

Typical models I’d feel a bit queasy about…Typical models I’d feel a bit queasy about… If an LA was paying for the care and the accommodation under If an LA was paying for the care and the accommodation under

one contractone contract, or was paying the same provider , or was paying the same provider for the rentfor the rent and and the care separately, I would be worried. Eg adult placements for the care separately, I would be worried. Eg adult placements for people having hands on care….people having hands on care….

A more common occurrence in my experience A more common occurrence in my experience is the topping up is the topping up of the rentof the rent – without the LA even questioning – without the LA even questioning what vireswhat vires it has it has to spend public money on so doing. This often happens when the to spend public money on so doing. This often happens when the landlord is not an RSL, so is not limited to charging merely the landlord is not an RSL, so is not limited to charging merely the reference rent in the area for HB purposes.reference rent in the area for HB purposes.

Another favourite is an arrangement for a block contract for care, Another favourite is an arrangement for a block contract for care, and individual care contracts for specific tenants on top, to be and individual care contracts for specific tenants on top, to be signed between the provider and the LA. Nothing wrong with that signed between the provider and the LA. Nothing wrong with that – but guess what – – but guess what – the LA is also often in charge of the the LA is also often in charge of the ‘admissions’ to the facility‘admissions’ to the facility, through the initial conveyance , through the initial conveyance contract or grant conditions signed with the landlord. If the contract or grant conditions signed with the landlord. If the Landlord and the provider are one and the same in Landlord and the provider are one and the same in thatthat situation, situation, that smells of the that smells of the procurement of the accommodation by the procurement of the accommodation by the LA, in an arrangement integrated with the arrangements LA, in an arrangement integrated with the arrangements for the provision of care by the LAfor the provision of care by the LA, if you ask me. , if you ask me.

Hartrigg Oaks – the Joseph Rowntree flagshipHartrigg Oaks – the Joseph Rowntree flagship

A hundred plus bungalows, and communal A hundred plus bungalows, and communal facilities – gardens, loft conversions and 2facilities – gardens, loft conversions and 2ndnd beds beds

3 types of payment arrangement3 types of payment arrangement– One off – like buying a place – you get it back when you One off – like buying a place – you get it back when you

leave or die leave or die – Monthly payment – like rentMonthly payment – like rent– Reduced one off and reduced monthly payment – you Reduced one off and reduced monthly payment – you

get your one off contribution back if you leave/die within get your one off contribution back if you leave/die within a certain period – a bit like rental purchase.a certain period – a bit like rental purchase.

But what about the care payments? Everyone pays a But what about the care payments? Everyone pays a regular limited amount into an ‘insurance’ collective regular limited amount into an ‘insurance’ collective fund, so that when they need care, they can be funded – fund, so that when they need care, they can be funded – but they get nothing back, even if they never need care. but they get nothing back, even if they never need care.

Why doesn’t this constitute the registrable provision of Why doesn’t this constitute the registrable provision of care together with accommodation? They haven’t care together with accommodation? They haven’t replied to my very polite enquiry, on behalf of my 63 replied to my very polite enquiry, on behalf of my 63 year old husband…year old husband…

Termination of the right to occupyTermination of the right to occupy

This must not turn, in any sense, on the This must not turn, in any sense, on the willingness of the tenant to willingness of the tenant to havehave care, care, paypay for care, for care, acceptaccept care, let alone care, let alone accept care accept care from thefrom the landlordlandlord or their agent, or from or their agent, or from any particular company, either within the any particular company, either within the tenancy agreement, or outside of it, as a tenancy agreement, or outside of it, as a ‘side’ arrangement. ‘side’ arrangement.

Any such arrangement would obviously be an Any such arrangement would obviously be an arrangement for care, together with arrangement for care, together with accommodation – and whilst there’s nothing accommodation – and whilst there’s nothing wrong with wrong with thatthat if the care is of a hands if the care is of a hands offoff sort, it’s illegal to provide hands ON care, sort, it’s illegal to provide hands ON care, within an unregistered establishment, ie - within an unregistered establishment, ie - assistance with bodily functions - if the assistance with bodily functions - if the accommodation rights are all wrapped up accommodation rights are all wrapped up with that degree of care.with that degree of care.

Try asking yourselves, if you’re a Try asking yourselves, if you’re a provider, what is the deal really FOR?provider, what is the deal really FOR?

Is it assistance with bodily functions – if so, Is it assistance with bodily functions – if so, it is critical that the person or their it is critical that the person or their representative is contracting for the representative is contracting for the tenancy, directly, and the care is separately tenancy, directly, and the care is separately contracted for.contracted for.

Or is it for some Or is it for some lesserlesser form of personal form of personal care, together with accommodation? – care, together with accommodation? – that’s fine, even if that’s fine, even if allall the parties are the the parties are the same, for same, for allall contracts. See s121 CSA. contracts. See s121 CSA.

Or is it merely for some kind of ‘support’ Or is it merely for some kind of ‘support’ and not care at all? Mere support does not and not care at all? Mere support does not trigger registration even as a domiciliary trigger registration even as a domiciliary care agency, in England at least – it’s a care agency, in England at least – it’s a harder question in Wales, and a registrable harder question in Wales, and a registrable service in its own right in Scotland.service in its own right in Scotland.

Try asking yourselves, if you’re a Try asking yourselves, if you’re a provider, what is the deal really FOR?provider, what is the deal really FOR?

And if it’s merely for support, to a And if it’s merely for support, to a groupgroup of of people, what is the support provider people, what is the support provider supposed to do, in terms of safe staffing supposed to do, in terms of safe staffing ratios, if one of the clients won’t ratios, if one of the clients won’t agreeagree to to do what the rest of the group wants to do, do what the rest of the group wants to do, on a given day? on a given day?

It seems to me that in younger persons’ It seems to me that in younger persons’ supported accommodation, we are building supported accommodation, we are building packages of support, based on a right to a packages of support, based on a right to a percentagepercentage of a support worker, rather than of a support worker, rather than on what the individual needs….which is why on what the individual needs….which is why we risk recreating institutionalised care we risk recreating institutionalised care where people are not actually free to be where people are not actually free to be unsociable. Let’s not do that in Extra Care unsociable. Let’s not do that in Extra Care facilities!facilities!

Benefit and finance mattersBenefit and finance matters If a person with reduced capacity actually If a person with reduced capacity actually

signs a tenancy, they at least have the right signs a tenancy, they at least have the right to rely on the presumption of capacity. to rely on the presumption of capacity.

But if someone But if someone elseelse signs for them, without signs for them, without legal authority – there’s no presumption of legal authority – there’s no presumption of capacity to be relied upon – not even in capacity to be relied upon – not even in theory – because it’s not the Vulnerable theory – because it’s not the Vulnerable Adult’s own purported tenancy, in all Adult’s own purported tenancy, in all probability. It’s someone else’s…probability. It’s someone else’s…

He or she may then be, at most, the tenant He or she may then be, at most, the tenant of whoever of whoever diddid sign, which has all sorts of sign, which has all sorts of implications for eligibility for HB. . ..eg implications for eligibility for HB. . ..eg where this is a son, daughter or other close where this is a son, daughter or other close relative – it may not be accepted as a relative – it may not be accepted as a commercial relationship by the HB officers – commercial relationship by the HB officers – OUCH!OUCH!

A recent benefits crisis regarding reg 10(6) A recent benefits crisis regarding reg 10(6) exempt accommodationexempt accommodation

The The FreeholderFreeholder granted a long lease to the… granted a long lease to the… LandlordLandlord – who granted tenancy to the… – who granted tenancy to the… TenantTenant – who gets support from another company (call it an SP – who gets support from another company (call it an SP

provider)provider) The SP provider is in a so-called ‘joint venture’ agreement The SP provider is in a so-called ‘joint venture’ agreement

between the Freeholder, and the landlord, between the Freeholder, and the landlord, but is financed by but is financed by the LAthe LA

The HB payable would be restricted to the local reference rent The HB payable would be restricted to the local reference rent UNLESS the premises were exempt accommodation – regulation UNLESS the premises were exempt accommodation – regulation 10(6) – applying the old reg 11. If not, there’d be a £10K 10(6) – applying the old reg 11. If not, there’d be a £10K difference per annum per resident. difference per annum per resident.

““Exempt accommodation” is defined in reg. 10(6) of the 1995 Exempt accommodation” is defined in reg. 10(6) of the 1995 Regulations as including accommodation which is Regulations as including accommodation which is “provided by “provided by a a non-metropolitan county council …… a housing association, a non-metropolitan county council …… a housing association, a registered charity or voluntary organisationregistered charity or voluntary organisation where that body or where that body or a person acting on its behalf a person acting on its behalf also providesalso provides the claimant the claimant with care, support or supervision.”with care, support or supervision.”

The HB dept and the benefits Tribunal decided that the dwelling The HB dept and the benefits Tribunal decided that the dwelling occupied by each of the appellants was not “exempt occupied by each of the appellants was not “exempt accommodation” because the care, support and supervision which accommodation” because the care, support and supervision which was provided to the appellants by the SP provider was not was provided to the appellants by the SP provider was not provided provided by or on behalf of the Landlord HAby or on behalf of the Landlord HA. ….. ….

The Commissioner’s approachThe Commissioner’s approach This matters for you if you have SP obligations under This matters for you if you have SP obligations under

contract with the LA, and not directly to the tenants under contract with the LA, and not directly to the tenants under the tenancy conditions. the tenancy conditions.

““A strong indication against the argument [that the SP A strong indication against the argument [that the SP

provider is acting provider is acting on behalf ofon behalf of the landlord] is in my the landlord] is in my judgment that, if it were right, it would appear to have the judgment that, if it were right, it would appear to have the consequence that not only the strictly housing related consequence that not only the strictly housing related support, but also the personal care and supervision, is support, but also the personal care and supervision, is being provided by [that provider] on [the landlord’s] behalf. being provided by [that provider] on [the landlord’s] behalf. The scheme would not work unless the appellants (or at The scheme would not work unless the appellants (or at any rate the two more seriously disabled of them) receive any rate the two more seriously disabled of them) receive not only housing related support but also personal care and not only housing related support but also personal care and supervision. …Yet counsel shrank from the suggestion that supervision. …Yet counsel shrank from the suggestion that personal care and supervision (as opposed to housing-personal care and supervision (as opposed to housing-related support) were being provided on behalf of the related support) were being provided on behalf of the landlord landlord

AS INDEED HE WOULD HAVE TO DO…because of the risk of AS INDEED HE WOULD HAVE TO DO…because of the risk of the place being found to be the place being found to be registrableregistrable if the care was if the care was being provided together with the accommodation, under being provided together with the accommodation, under the tenancy!the tenancy!

The Commissioner’s approachThe Commissioner’s approach

A key difference since April 2003, and one which goes to the heart A key difference since April 2003, and one which goes to the heart of the issue in this appeal, is that in general the SP Administering of the issue in this appeal, is that in general the SP Administering Authorities, and social services departments for schemes not Authorities, and social services departments for schemes not funded via SP, tend to channel the funds for the support costs funded via SP, tend to channel the funds for the support costs directly to the support provider, rather than contracting with the directly to the support provider, rather than contracting with the landlord who then sub-contracts with the support provider. landlord who then sub-contracts with the support provider.

This is in great part due to a policy development derived from the This is in great part due to a policy development derived from the White Paper “Valuing People” in 2001, which sought to promote White Paper “Valuing People” in 2001, which sought to promote the maximum degree of independence for people with learning the maximum degree of independence for people with learning disabilities. It was considered desirable to separate the provision disabilities. It was considered desirable to separate the provision of housing from the provision of care, partly so that relations with of housing from the provision of care, partly so that relations with the provider of one did not necessarily impact on relations with the provider of one did not necessarily impact on relations with the provider of the other.the provider of the other.

ANOTHER SHOT IN THEIR OWN FOOT BY THE VALUING PEOPLE TEAM ANOTHER SHOT IN THEIR OWN FOOT BY THE VALUING PEOPLE TEAM … This case means it is actually … This case means it is actually necessarynecessary for a landlord to be for a landlord to be one and the same as the provider of care, but simply contracting one and the same as the provider of care, but simply contracting separately with the LA. See separately with the LA. See http://www.osscsc.gov.uk/judgmentfiles/j1988/CH%200423%202006-00.doc

Welfare concerns for landlords – and ultimately, for Welfare concerns for landlords – and ultimately, for Extra Care, if we ignore capacity issuesExtra Care, if we ignore capacity issues

Compensation for the land use aside, a landlord may not be able Compensation for the land use aside, a landlord may not be able lawfully to lawfully to evictevict for breach of covenant, if a tenant cannot help for breach of covenant, if a tenant cannot help him or herself from causing nuisance or annoyance – for that him or herself from causing nuisance or annoyance – for that couldcould be disability discrimination, be disability discrimination, unless actual physical harm were unless actual physical harm were being threatenedbeing threatened. .

This can put the landlord in difficulties with other tenants, who This can put the landlord in difficulties with other tenants, who can reasonably expect such covenants to be enforced by the can reasonably expect such covenants to be enforced by the landlord.landlord.

A local authority will have no power to A local authority will have no power to surrendersurrender a tenancy on a tenancy on behalf of someone incapacitated, who is refusing care, or causing behalf of someone incapacitated, who is refusing care, or causing a problem for others in a group setting – whether or not the a problem for others in a group setting – whether or not the person was capacitated at the time of signing the tenancy. person was capacitated at the time of signing the tenancy.

An attorney or receiver (a An attorney or receiver (a deputydeputy, in the future) could be , in the future) could be prevailed upon to do so, however, if one was in place. prevailed upon to do so, however, if one was in place.

A deputy will be able to exercise a welfare decision making role as A deputy will be able to exercise a welfare decision making role as the delegate of the court, and determine where a person should the delegate of the court, and determine where a person should live, in their best interests, which will combine an LA or personal live, in their best interests, which will combine an LA or personal power to contract, and a power to move someone under the s5 power to contract, and a power to move someone under the s5 immunity from suit under the Act, for carers, acting in a person’s immunity from suit under the Act, for carers, acting in a person’s best interests. best interests.

The Law Commission’s proposals for a new The Law Commission’s proposals for a new form of tenure for supported housingform of tenure for supported housing

THE NEW APPROACHTHE NEW APPROACH

10.6 Our approach now is to provide a legal framework that differentiates 10.6 Our approach now is to provide a legal framework that differentiates between types of supported accommodation. In essence, our scheme between types of supported accommodation. In essence, our scheme establishes three levels of tenant’s legal protection for supported housing:establishes three levels of tenant’s legal protection for supported housing:

(1) agreements excluded from the scheme (very short term (1) agreements excluded from the scheme (very short term accommodation);accommodation);

(2) agreements included as standard contracts; and(2) agreements included as standard contracts; and (3) agreements included as secure contracts.(3) agreements included as secure contracts.

10.7 We have also recognised that managers in the supported housing sector 10.7 We have also recognised that managers in the supported housing sector have have specific needs for a range of measures that can be used by specific needs for a range of measures that can be used by them in specific circumstances.them in specific circumstances.

10.8 Our new recommendations provide for as few exclusions from the 10.8 Our new recommendations provide for as few exclusions from the scheme as possible and as few exceptions to the general requirement scheme as possible and as few exceptions to the general requirement upon social landlords to provide housing on secure contracts as possible.upon social landlords to provide housing on secure contracts as possible.

Law Commission proposalsLaw Commission proposalsDETAILS OF OUR STATUTORY SCHEMEDETAILS OF OUR STATUTORY SCHEME

10.9 The Bill provides the first legislative recognition of the specific needs of 10.9 The Bill provides the first legislative recognition of the specific needs of supported housing landlords and occupiers. It provides the opportunity to supported housing landlords and occupiers. It provides the opportunity to escape the very real difficulties that projects are forced to deal with under escape the very real difficulties that projects are forced to deal with under the current law, given the need to choose between quite possibly legally the current law, given the need to choose between quite possibly legally dubious licences, on the one hand, and (for these purposes) overly-secure dubious licences, on the one hand, and (for these purposes) overly-secure assured shorthold tenancies on the other.assured shorthold tenancies on the other.

10.10 Supported housing accommodation is defined in clause 234. It is based 10.10 Supported housing accommodation is defined in clause 234. It is based upon the link between the provision of accommodation and the provision of upon the link between the provision of accommodation and the provision of support services. support services.

We also recognise the importance of housing charities’ work in this area, and We also recognise the importance of housing charities’ work in this area, and accommodation provided by charities is therefore included in the definition accommodation provided by charities is therefore included in the definition alongside accommodation provided by community landlords. This means alongside accommodation provided by community landlords. This means that those housing charities that are not also community landlords are able that those housing charities that are not also community landlords are able to utilise the legal tools we have designed for the management of to utilise the legal tools we have designed for the management of supported housing, though they are not obliged to provide accommodation supported housing, though they are not obliged to provide accommodation on a secure contract.on a secure contract.

Law Commission proposalsLaw Commission proposals10.11 Notwithstanding the general objective of including supported 10.11 Notwithstanding the general objective of including supported

housing in the scheme, the draft Bill housing in the scheme, the draft Bill excludes supported excludes supported accommodation from the scope of the schemeaccommodation from the scope of the scheme when it is when it is intended to be provided for a period of four months or less. This is intended to be provided for a period of four months or less. This is designed to exclude designed to exclude respite accommodation and respite accommodation and accommodation provided whilst a landlord assesses the accommodation provided whilst a landlord assesses the needs of a client before providing them with longer-term needs of a client before providing them with longer-term accommodation.accommodation.

10.12 During this period the normal rules about, for example, the 10.12 During this period the normal rules about, for example, the provision of a written statement of the contract will not apply. provision of a written statement of the contract will not apply.

This does not mean that landlords cannot provide their clients with This does not mean that landlords cannot provide their clients with some statement of their rights and obligations. In practice many some statement of their rights and obligations. In practice many do, if only to make clear what the particular house rules are. For do, if only to make clear what the particular house rules are. For example, many schemes explicitly prohibit alcohol or drug use on example, many schemes explicitly prohibit alcohol or drug use on the premises, and make it clear that breach of such a rule will the premises, and make it clear that breach of such a rule will result in loss of the accommodation.result in loss of the accommodation.

Law Commission proposalsLaw Commission proposals10.13 The scheme also enables supported housing provided 10.13 The scheme also enables supported housing provided

by by community landlordscommunity landlords to be excluded from the general to be excluded from the general requirement that they provide accommodation under requirement that they provide accommodation under securesecure contracts. contracts.

The exclusion is, however, time limited. Initially it lasts for up The exclusion is, however, time limited. Initially it lasts for up to two years, and can be extended in particular to two years, and can be extended in particular circumstances that are outlined below. circumstances that are outlined below.

During this period, the landlord will enter into a modified During this period, the landlord will enter into a modified version of the standard contract, known as the supported version of the standard contract, known as the supported standard contract. standard contract.

The Bill does not prevent a community landlord offering a The Bill does not prevent a community landlord offering a client, who has made good progress and demonstrated a client, who has made good progress and demonstrated a capacity to live fully independently, a secure contract capacity to live fully independently, a secure contract before the end of the two-year period.before the end of the two-year period.

Tools that will be available to the Tools that will be available to the managers of supported housingmanagers of supported housing

10.14 The two-year period is defined in the Bill as the enhanced 10.14 The two-year period is defined in the Bill as the enhanced management period. During the enhanced management period management period. During the enhanced management period two specific management tools are available: two specific management tools are available: exclusion exclusion andand mobilitymobility within a facility. within a facility.

EXCLUSIONEXCLUSION10.15 The first of these recognises that many landlords must be able, 10.15 The first of these recognises that many landlords must be able,

without delay, to temporarily remove a resident who is behaving without delay, to temporarily remove a resident who is behaving violently or in a way which endangers themselves or someone else violently or in a way which endangers themselves or someone else in the accommodation. At present this is achieved in practice in the accommodation. At present this is achieved in practice because supported housing managers use licences which they because supported housing managers use licences which they think – often incorrectly – entitle them to evict such a person think – often incorrectly – entitle them to evict such a person without going to court.without going to court.

10.16 Although our scheme provides that, after the initial period of 10.16 Although our scheme provides that, after the initial period of four months, residents should have the benefit of at least a four months, residents should have the benefit of at least a standard contract, it also recognises that there are circumstances standard contract, it also recognises that there are circumstances when immediate removal is the only practical option.when immediate removal is the only practical option.

10.17 Therefore the Bill provides that it is a fundamental term of the 10.17 Therefore the Bill provides that it is a fundamental term of the supported standard contract that, during the enhanced supported standard contract that, during the enhanced management period, management period, the landlord can exclude an occupier the landlord can exclude an occupier without the need for any intervention by the court. without the need for any intervention by the court.

Tools that will be available to the Tools that will be available to the managers of supported housingmanagers of supported housing

This admittedly draconian power is subject to two vital limitations. First, no exclusion can This admittedly draconian power is subject to two vital limitations. First, no exclusion can be for more than be for more than 48 hours48 hours. Second, the landlord or the designated person must . Second, the landlord or the designated person must reasonably believe that the occupier has acted in a particularly dangerous manner. reasonably believe that the occupier has acted in a particularly dangerous manner. The landlord must give notice to the contract-holder setting out the reasons why they The landlord must give notice to the contract-holder setting out the reasons why they are required to leave, either when requiring them to leave or as soon as reasonably are required to leave, either when requiring them to leave or as soon as reasonably practicable afterwards.practicable afterwards.

10.18 The acts which justify a temporary exclusion are:10.18 The acts which justify a temporary exclusion are:(1) where the occupier (1) where the occupier has used violencehas used violence against anyone on the premises; against anyone on the premises;(2) where the occupier (2) where the occupier does something on the premises which creates a risk of does something on the premises which creates a risk of

significant harmsignificant harm to anyone; or to anyone; or(3) where the occupier behaves in a way (3) where the occupier behaves in a way which seriously impedeswhich seriously impedes the ability of the ability of

another residentanother resident of supported accommodation provided by the landlord of supported accommodation provided by the landlord to benefit to benefit from the support provided.from the support provided.

10.110.1 We recommend (and the Bill provides for this) that this provision cannot be We recommend (and the Bill provides for this) that this provision cannot be used more than three times in any six-month period. We thought restriction should used more than three times in any six-month period. We thought restriction should be included to prevent abuse by the landlord. Three times in six months was the be included to prevent abuse by the landlord. Three times in six months was the number we arrived at after discussions with providers of social housing, but the number we arrived at after discussions with providers of social housing, but the Government may see fit to increase or decrease this number. This may be a Government may see fit to increase or decrease this number. This may be a particular issue on which further public consultation will be needed.particular issue on which further public consultation will be needed.

10.20 Clearly there will be circumstances where the landlord will need to exclude the 10.20 Clearly there will be circumstances where the landlord will need to exclude the occupier for a period longer than 48 hours. occupier for a period longer than 48 hours.

To do this the landlord will need to go to court to obtain To do this the landlord will need to go to court to obtain an injunctionan injunction. For example, if . For example, if the landlord decides that eviction is necessary, the landlord may seek an injunction the landlord decides that eviction is necessary, the landlord may seek an injunction against the occupier to last for the length of the possession notice period.against the occupier to last for the length of the possession notice period.

Thanks for listeningThanks for listening

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