On 16 July 2010 the High Court indicated a provisional view that a supported living scheme - accommodating a man with learning disabilities - should be registered as a “care home” under the Care Standards Act 2000 (the 2000 Act) and that housing benefit should not be used to fund such a care home placement. This provisional view will be subject to further consideration by the Court; if the Court’s initial view is confirmed there will be wide ranging implications for service providers and local authority commissioners of supported living schemes.
In G v (1) E (2) A Local Authority (3) F (2010) the Court considered various issues relating to the care of two mentally incapacitated adults, including use of Deprivation of Liberty Safeguards (DOLS) in respect of them. The most pertinent issue here related to the provision of accommodation.
One of the residents in the case had no capacity to enter into a contract for his accommodation. The person who signed the document claimed to be the resident’s tenancy agreement had no authority to act on behalf of the man (eg they were not a deputy appointed by the Court of Protection). In addition, carers had unrestricted access to the property to enable them to care for the resident. He had no ability to make choices about his receipt of care and no capacity to exclude the carers from the property.
On those facts the Court appeared sympathetic to a suggestion that the arrangement was, in fact a, “care home” within the meaning of s. 3 of the 2000 Act. If that is correct it would mean that the resident cannot receive housing benefit and that the care and accommodation providers are operating a care home illegally. The Court refused to give a final view on the issue and has allowed relevant parties (eg the accommodation and care providers) to make submissions before a final decision on the point is reached.
The 2000 Act
Section 3 of the 2000 Act makes clear that a care home exists where personal or nursing care is provided “together with” accommodation. Previous cases considering whether supported living schemes should be registered as care homes have focused on the “together with” issue. It has been argued - successfully in some cases - that where the accommodation and care providers are separate bodies there is no provision of accommodation “together with” care.
The Care Quality Commission (CQC) has issued guidance on this issue which stresses that the fact that the accommodation and care providers are separate bodies does not necessarily mean the setting is not a care home. You can access the guidance by clicking here.
Factors which the CQC stress are relevant in determining whether the setting is a care home include whether the resident can exercise genuine choice about who provides their care and whether they can exclude carers from their accommodation as you would expect someone to be able to do in their own home.
This case suggests that determining whether accommodation is provided “together with” care cannot necessarily be resolved simply by looking at the roles of the organisations involved. It highlights the fact that examining the factors (which CQC points out are relevant) will require an examination of how the accommodation and care providers interact with the residents. Examining how the providers interact with the residents will require consideration of the residents’ capacity.
This is because a person who suffers from a substantial impairment of cognitive function will lack the capacity to enter into a tenancy agreement, lack the capacity to exercise real choice about who provides their care and lack the capacity to decide to exclude carers from their accommodation. The factors the CQC says need to be considered cannot be properly evaluated without reference to the residents’ mental capacity. The mere theoretical ability for residents to, for example, exercise choice about care provision may be irrelevant if, in reality, the residents cannot exercise any real choice because of their mental incapacity.
Therefore, even if there are appropriately drafted tenancy documents in place (and those tenancy documents do not link the provision of accommodation with the receipt of services from X domiciliary care agency), if the reality is that residents lack capacity to sign the agreements, lack the capacity to decide to refuse care supplied by X agency and lack the capacity to regulate when and whether X agency’s staff enter the property, it may be that the arrangement will be regarded as a care home.
A similar situation but where the residents have sufficient capacity to sign their tenancy documents, to exercise choice over who provides care and to regulate access to their accommodation, may not be regarded as accommodation provided “together with” care because of the existence of genuine choice for the residents. Choice will probably only be genuine if the residents have sufficient capacity to exercise it.
The G v. E case follows on from the High Court’s decision in September 2009 regarding the availability of housing benefit to fund accommodation for people who also receive care at home. In R(S) v Social Security Commissioner (and others) (2009) the High Court considered whether a supported living arrangement was “exempt accommodation” under the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006. If it was “exempt accommodation” then more favourable (higher) rates of housing benefit would be payable. Accommodation would be “exempt accommodation” under the 2006 regulations if it was provided by a body “…where that body or a person acting on its behalf also provides the claimant with care, support or supervision”.
The accommodation provider did not claim to also be the care provider. If it had it would clearly have triggered the duty to register as a care home under the 2000 Act. Instead, it was argued that the separate organisation providing the care was providing that care “on behalf of” the accommodation provider, pursuant to a contract between them.
The Court analysed the contract between the accommodation provider and the care provider and concluded that there was not a sufficiently close relationship between them and that the care provider was not providing care “on behalf of” the accommodation provider. Accordingly, the Court decided that the accommodation was not exempt. The rate of housing benefit payable fell from £195.27 to £65 per week.
The case illustrated what could be regarded as a tension or confusion in the current legislation surrounding provision of supported living. A direct connection between accommodation provision and care provision was necessary to attract higher rates of housing benefit. That direct connection would, arguably, have triggered the duty to register as a care home. However, if the setting was a care home there would, by virtue of the Housing Benefit Regulations 2006, be no entitlement to any housing benefit! If this is correct, the result is that such settings would have to be funded entirely from other sources, eg local authority social care budgets.
This is a complex area with significant issues facing both providers and commissioners. Providers need to be confident they are not operating services which need to be registered with the CQC as they risk prosecution. Under the Health and Social Care Act 2008 a conviction for carrying on a regulated activity while not registered could lead to an unlimited fine and/or a 12 month prison sentence.
Local Authority commissioners equally need to be aware of this issue. Commissioners need to carefully consider the funding implications if some existing supported living schemes need to register as providers of accommodation together with care.
Providers and commissioners will be keen to see how the Court approaches the issue when it reconsiders the G and E case; the outcome could have a profound impact on current practises.