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14.Sep.2010

The High Court has recently handed down a judgement which could have implications for supported living schemes. Lee Parkhill and Jill Mason examine its potential impact and explain why it matters to local authorities.

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.

Judgment

In G v (1) E (2) A Local Authority (3) F [2010] EWHC 621 (Fam), 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 (e.g. 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 – such as 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 CQC

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.

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.

Together with?

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.

Housing Benefit

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, for example local authority social care budgets.

Conclusion

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 v E case; the outcome could have a profound impact on current practices.

Lee Parkhill is a senior solicitor and Jill Mason is a partner at Mills & Reeve (www.mills-reeve.com). They can be contacted via This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it..

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14.Sep.2010

GPs have expressed concern at the disruption the government’s proposed shake-up of the NHS could have to existing management and relationships in local health communities where good practice already exists.

At its council meeting on Monday, the Royal College of General Practitioners also set out its concerns at:

• The pace of change
• The cost of change, and
• The increasing role of commercial organisations in the provision of care.

The RCGP nevertheless said it particularly welcomed the emphasis in the government’s White Paper Equity and excellence: Liberating the NHS on clinical leadership and the central role of GPs in the NHS.

It added that it was “confident that GPs will rise to the challenges presented by the White Paper, but we need to do so in a considered, patient-centred and value-driven way, and in collaboration with our specialist colleagues”.

The RCGP’s council also discussed a paper on its current and future involvement with commissioning, and how it might support its members.

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10.Sep.2010

The government has signalled its intention to “simplify and greatly reduce” the number of pieces of legislation and guidance that govern adult social care, arguing that its complexity and opaqueness leads to money being wasted on legal proceedings that could be avoided.

In its submission to the Law Commission’s consultation on potential reforms, the Department of Health agreed that the legislative framework for social care was outdated and needed modernising.

It said: “The current piecemeal state of the law leads to confusion and inefficiencies for users, carers and professionals. Trying to understand and use complex and outdated law takes longer and leads to uncertain outcomes.”

The Department added that with more than 30 pieces of legislation relating to adult social care “and many more pieces of guidance”, the law is “cumbersome, opaque, complex and susceptible to different, often unhelpful, interpretation”.

The DH described reform of the law underpinning adult social care as a key component – together with the Commission on the Funding of Care and Support – towards a new and sustainable settlement for the system.

The submission called for a legal framework that promotes personalised care, increases choice and control and can be used and understood by those that need access to support.

This would represent a move away from an existing regime that is “largely based on a time when policy makers and others viewed users of social care as unfortunate, passive recipients of ‘care’”.

The Department of Health insisted that any legislation to take forward reform would have to fit not just with the Commission’s recommendations but also the government’s localism agenda and its commitment to delivering greater local flexibilities.

It said one of the key strands of the government’s work was to remove barriers, which “also means supporting local authorities to deliver vital front line services in a way that suits their local needs by seeking to impose fewer duties on them”.

“The intention is to improve transparency and accountability in the system leading to a better experience for those using services,” the submission continued. “However, if the government concludes at any stage that a suggested duty for local authorities is appropriate, for example where it represents existing practice, this would not preclude the government from reviewing or removing such duties in future, in line with the government’s commitments.”

The DH insisted it would only use regulation where it was proportionate and where alternative approaches would not achieve satisfactory outcomes. It intends to work with the Law Commission to simplify the process and make information transparent and useful to those seeking to use services, their families, as well as professionals and small businesses.

The Department suggested that, in reforming social care, it would adhere to the government’s “One in, One out” approach to regulation. From 1 September, this requires ministers seeking to introduce new regulations which impose costs on business or the third sector also to identify current regulations with an equivalent value that can be removed.

The submission added: “This will make it easier for local authorities and their staff, and those in business and the third sector to understand their duties and responsibilities under the law. The new legal framework will need to ensure that a range of independent and voluntary sector providers can continue to provide innovative services in the field of care and support.”

The DH said the review represented “an unparalleled opportunity to bring coherence and transparency into the social care system and the law that governs it".

The government backed many of the Law Commission's specific proposals. It also said:

• It would be preferable to have separate statutes for England and Wales
• There is still a role for directions in the social care system under the general power in section 7A of the Local Authority Social Services Act 1970. Such directions have the force of law but are not subject to any Parliamentary procedure. Retaining the power would allow the Secretary of State to deal with issues arising in individual authorities and to enable binding instructions to be issued more generally on issues relating to the exercise of social services functions not covered by a regulation-making power
• A code of practice bringing together statutory guidance could be "unduly cumbersome"
• It supported the concept of defining statutory principles for a modern adult social care law, although the challenge will be to express them in a way that "provides coherence, legal certainty and purpose without being prescriptive". The purpose of the principles would be to assist decision-makers in exercising their functions, rather than to establish enforceable legal duties
• The Law Commission's proposal that the local authority in which the cared-for person lives should be given responsibility for providing carers' services is "a sensible approach". The government said the number of carers living at a distance but still providing essential support possibly could be on the increase. A duty to co-operate between local authorities might therefore be a "helpful addition" to the law where it is not practicable for the cared-for person's local authority to provide support to the carer
• It is important to preserve the existing law relating to the divide between health and social care service provision. However, the government has a wider aim to encourage further integration between health and social care "so any legal framework should not undermine this intention"
• A proposal that there should be a duty on local authorities to produce a care plan for people who have assessed eligible needs might focus too strongly on process rather than outcomes. "If we were to adopt this approach, it will be important to consider how any duty for a local authority to produce a care plan inter-relates with other agencies also providing services to the individual so that this legal duty does not lead to multiple care plans that impede a multi-agency approach"
• The government's proposed general power of competence for local authorities would impact on some of the proposals around specific duties on local authorities and/or changes to existing local authority powers and render them unnecessary. "This is something that needs to be kept under review"

The Law Commission is expected to publish its final report in April 2011.

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07.Sep.2010

Powys County Council is to merge its post of strategic director of care and wellbeing with the chief executive’s role at a local health board.

It is the first time such a move has been approved in Wales, the BBC has reported.

A report to council said: “The Welsh Assembly Government are aware of the proposals and are supportive provided the reporting lines and governance arrangements between the two organisations are clearly established.”

However, councillors ruled out a full merger between the two organisations after consultants KPMG highlighted a number of barriers. The BBC said these included the local health board’s £20m deficit and different decision-making processes. The report did identify potential savings of between £6m and £14m had the merger gone through.

Chris Mann, the chairman of Powys’ local health board, said: “The health board had already demonstrated its commitment to joint working when it approved the proposal at its August meeting.

“The endorsement by the county council means that we can now move forward on this important initiative which will deliver improved and integrated services for the people of Powys.”

The BBC said plans for a joint chief executive have been in place since March 2009, and that these were followed by an agreement to merge. The KPMG report has now thrown that into doubt, it said.

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06.Sep.2010

There must be a level playing field for public procurement so that voluntary and community organisations can compete fairly, the National Council for Voluntary Organisations has argued.

In its submission to the Treasury Spending Review, the umbrella group called for the transformation of public services, rather than an attempt to reduce the deficit “either through a ‘more for less’ or ‘less for less’ approach”.

It said: “Commissioning decisions should take into account of the impact on quality of life and community, for example by including provisions relating to social outcomes and social value in public sector contracts.”

The NCVO – which represents more than 8,300 organisations – said commissioning needed to encourage tenders from a full range of providers and should not favour non-specialist, large providers.

“There must be a level playing field for public procurement so that VCOs can compete fairly, for example bidding for contracts on the basis of price not cost,” it argued.

“Further consideration should be given to the level of risk that civil society organisations are able to bear and their ability to access the capital needed to make the transition to a payment by results model or greater use of spot contracts.”

In its submission, the NCVO also said:

• It is essential that the government makes “considered and evidence-based decisions” that fully consider the long term impacts of spending cuts to the voluntary and community sector
• Short term cuts to the sector could have a disproportionate effect on people and communities. Statutory funding to the sector represents 2% of government expenditure, “yet has a social and economic impact much greater than this, not least through the sector’s ability to draw in the resources of individuals, as both donors and volunteers, and its ability to lever in additional resources from other sources"
• The government should review spending on the voluntary and community sector across all departments to ensure that the net effect of changes are “at least cost neutral”. Settlement letters, the NCVO said, should ask individual departments to be mindful of the need to strengthen civil society, and therefore to look at the impact of spending decisions on the sector
• It welcomed the move to devolve power to local councils and local people. However, the government should send a clear message to local authorities “to remind them of the need to work with their local voluntary and community sector to ensure that spending decisions take account of the impact on local communities, particularly the most marginalised”
• The voluntary and community sector must be represented on local enterprise partnerships
• The government should support and strengthen the Compact, which outlines how public and voluntary sector bodies should deal with each other. This would mean “ensuring it is embedded within individual departments and giving powers to national and local ombudsmen to ensure effective implementation”. The national compact should also set the standard for local compacts
• A wider examination of the tax system is needed to incentivise giving and philanthropy, through the introduction of lifetime legacies.

The outcome of the Treasury’s spending review will be published on 20 October and affect the next five years.

The NCVO said: “Voluntary and community organisations play an important part in re-invigorating our democracy, empowering people and communities and driving genuine improvements to services. They not only provide the foundation for the Big Society, but make a vital contribution to the nation’s social, economic, political and cultural well-being.”

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02.Sep.2010

Manchester City Council and the Legal Services Commission have joined together to commission Manchester Citizens Advice Bureau to run a city-wide legal advice service.

The Manchester Community Legal Advice Service, which will receive £8.9m in funding over three years, will open on 14 October and operate from six sites as well as several outreach locations.

The CAB will run the service in conjunction with Shelter, Cheetham Hill Advice Centre and law firms Glaisyers and Platt Halpern.

The Manchester CLAS will offer general advice to legal representation on a full range of social welfare law and family problems.

Councillor Glynn Evans, executive member for adult services at Manchester City Council, said: “This will make it much simpler for Manchester residents to get the help and advice they need, and ensure any legal advice and representation they need is within easy reach."

Hugh Barrett, Executive Director at the Legal Services Commission, added: “Manchester CAB and its partner organisations are all experienced in delivering public legal services and have made a commitment to delivering joined-up legal services for vulnerable individuals in Manchester.”