Legal aspects of housing for people with dementia

1. Legal aspects of housing for people with dementia Belinda Schwehr www.careandhealthlaw.com Legal Trainer and Consultant 01483 812161 belinda@careandhealthlaw.com

2. Last year’s issues, revisited • The effect of incapacity, in relation to the existence of a valid tenancy – registration and HB problems…(some developments soon, maybe) • The potential legal fall-out if relatives sign tenancies without formal authority for their loved ones – HB and registration problems in spades…some developments here under the MCA. • The problem of dementia sufferers not being able to abide by covenants, unsupported – aggravation, nuisance, hasty and inappropriate and potentially unlawful, enforced moving on…(some broader developments here) • Ordinary residence, and which authority pays, for those not funding their own retirements (no developments here!)

3. This year’s issues • The Mental Capacity Act – will it make any difference? Lawful detention, under the Protective Care regime, is not going to apply in people’s own homes… • Deputyship, welfare-decision making and surrender of tenancies. • New forms of tenancy promised for the future – with enhanced powers of management for providers of supported housing - the Law Commission’s proposals

4. Tenancies and services for people with mental impairment • A person whose capacity to understand the contract you’d like them to sign, is merely a bit in doubt, should be presumed to be capable of understanding it. They can sign with a mark if they can’t write, or their insightful assent can be witnessed and corroborated by a third party. • A person who is still mentally capacitated, regarding taking on a tenancy obligation, can properly sign today, for a tenancy, binding themselves to pay and to be ‘good’ even when they are likely to deteriorate. The validity of the tenancy or those obligations under is not affected by any later incapacity. • An appointee cannot sign a tenancy for a person – the appointee only has authority to manage that person’s benefits – not bind them contractually to a set of promises. • A direct payment helper/manager cannot sign a tenancy for someone incapacitated.

5. Incapacity, home care services and tenancies • If a landlord enters into a tenancy, or a provider enters into a care contract with a client who probably lacks mental capacity, but the person still signs their own part of the contract, despite not understanding it, there is still a presumption of capacity. • A person who is clearly already mentally incapacitated should not be asked to contract directly with a support provider or a care agency, or sign a tenancy. It would be abusive to insist. • A landlord cannot be made to contract with people who lack capacity – or their representative - it is an objectively good reason for refusing to accept someone as a tenant, even under the Disability Discrimination legislation.

6. Incapacity, home care services and tenancies • But if a landlord goes ahead, then the contract or tenancy is voidable (in England) (but void in Scotland) at the behest of the client or their later authorised representative – if it’s clear that the other party must have known the person was incapable of understanding what was signed. • The vulnerable adult is probably still then liable to pay a reasonable fee for the services or accommodation that they’ve benefited from, regardless, based on restitutionary principles, either because the arrangement was for what the law regards as ‘necessaries’ or because occupation of land has always given rise to a liability to pay what’s called ‘damages for use and occupation’. • The only good effect of ‘avoiding’ the tenancy would be that the tenant would not be able to be sued for damages for breach of the covenants for good behaviour. But if the tenancy is avoided by the tenant’s representative, there is no right to remain in occupation either, so it may be best - for practical purposes - to leave it in place and take the consequences of liability for conditions which one can no longer actually keep to.

7. So what are the prudent and ethical options? • Either a lawfully authorised representative signs for the incapacitated person – that might be an LA deputy, a holder of a Single Order (next year), an enduring power of attorney holder, a lasting power of attorney holder – next year NB A person who has given someone a valid Enduring Power of Attorney and then lost capacity can have their tenancy signed by that attorney on their behalf, even though the incapacitated adult may not understand a word of it, personally. The attorney won’t be able to force the tenant to conform to good behaviour covenants, when the person loses capacity, but at least they are binding, no matter what, from the landlord’s perspective, and breach would be actionable in damages. or the LA contracts for him or her under its own powers under the NAA, making the contract very probably a contract for care together with accommodation. • Or a third party signs personally in their own name for the liability – 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 risk… and provides the services regardless of the lack of a valid obligation to pay.

8. Incapacity and contracting privately for care services for incapacitated people in the future • Under the Mental Capacity Act, in 2007, a person is going to be able to ‘pledge the credit’ of the client without any other form of agency status or financial authorisation, for the purchase of goods and services related to care. • So the informal third party will at least have authority to promise that the client will pay, but of course won’t have the authority to bind the client, in any other way, to contractual commitments. See s8 MCA 2005 • Accommodation and shelter however, would not appear to be covered in the concept of ‘necessaries’ so relatives won’t be able to use this new statutory power to promise to pay rent.

9. Establishing capacity to sign a tenancy, now and in the future • In this particular context, making a valid contract probably means understanding the essentials of ‘the deal’: • The basic concept of money – ie The concept of owning one’s own money; The concept of exchanging one’s own money, in return for something; • The concept of promises and socialrules (even if the person needs help to manage to abide by what’s been promised) - ie No damage to the property; No violence towards others living there;

10. Clients in extra care or supported living facilities probably divide into four groups • Those who did understand what they signed. • Those who didn’t sign, or didn’t understand at the time, but who could’ve been helped if care managers had grasped the importance of the issue. • Those who couldn’t have understood, and can’t, no matter what efforts might now be made - they need a receiver to sign for them (a ‘short order’ form of this regime, currently works to give the holder, clear legal authority to sign a tenancy as the agent of the incapacitated person for all purposes – it will be called a Single Order after April 2007) • Those whose care needs are actually inimical to the independent living culture for the others there – ie those who need minute by minute close supervision to keep them and others safe.

11. What about where the client is not actually capable of refusing care? • The $64,000 question, in my view…. • If a person cannot physically refuse care, or does not have the capacity to communicate their refusal of it, or has no concept of any option other than acquiescence, they could still be a person who was in their own home, under a tenancy they had signed when capacitated, or in their own home under a tenancy signed by their attorney or receiver, or a licence to occupy, from their parents, or grown up offspring, for instance. • No amount or intensity of care can then magically turn their domestic residence into a care home. • Incapacity on its own is therefore not a registration danger.

12. What about where the client is not actually capable of refusing care? • However, if the person acquired the tenancy since having acquired that profile of dependency, it seems inconceivable to me that they could at the same time as being in that state, have had capacity to understand the tenancy. and hence, without a receiver/short order holder or attorney having signed, I would be worried about CSCI attention – on the basis that the arrangements were actually, in practice, for care together with accommodation, even if the tenancy didn’t mention care or support at all. • The care purchasers (usually the LA) have the right to provide care in the absence of a dispute about the person’s best interests, but would not have had the power to sign the tenancy for the tenant (unless a deputy etc).

13. Registration matters • Incapacity matters in registration terms because the Alternative Futures case makes it clear that a document merely called a tenancy is not an absolute answer to the CSCI Inspectors, when they come knocking… if the tenancy is potentially invalid, or not directly made between the tenant and the landlord, in reality, registration consequences can flow. • 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 prepared to overlook that issue, because of the more serious issue about what was being provided in that one tenancy document. • The Courts have now dealt finally with that case, and have said that notions of ‘choice’ are legally irrelevant to the question what is a registrable care home and what is not…. • The tenancy in that case was an apparently ordinary tenancy, expressly incorporating support. The landlord was separate from the care provider, as has been advised to be key, by eminent lawyers, for years…. But the landlord was legally responsible for the support element, as was necessary under THB rules – and which has just been held necessary by a decision of the Social Security Commissioners in relation to full HB above the local reference rent.

14. Registration matters • The Court found that the tenancies that had thereby been created, were not ‘normal’ tenancies. The 11 days of evidence before the CST had shown that there was no significant or real difference in the care regime, before and after the grant of the tenancy, and as the input had undoubtedly been ‘care’ before, so, in this particular case, the so called ‘support’ given afterwards, was still ‘care’, in fact. • Therefore given that there was one contract, between the landlord and the parents (probably in their own names), for what had to be seen as ‘care’, in the particular context, together with the accommodation, that is why it was registrable. • So do be careful. Avoid any situation in which the care is being provided in one integrated contract, together with the accommodation. That will trigger potential registration, if the service amounts to assistance with bodily functions, which may be not what anyone desires.

15. Typical models I’d feel a bit queasy about… • If an LA was paying for the care and the accommodation under one contract, or was paying the same provider for the rent and the care separately, I would be worried. Eg adult placements for people having hands on care…. • A more common occurrence in my experience is the topping up of the rent – without the LA even questioning what vires it has 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 reference rent in the area for HB purposes. • Another favourite is an arrangement for a block contract for care, and individual care contracts for specific tenants on top, to be signed between the provider and the LA. Nothing wrong with that – but guess what – the LA is also often in charge of the ‘admissions’ to the facility, through the initial conveyance contract or grant conditions signed with the landlord. If the Landlord and the provider are one and the same in that situation, that smells of the procurement of the accommodation by the LA, in an arrangement integrated with the arrangements for the provision of care by the LA, if you ask me.

16. Hartrigg Oaks – the Joseph Rowntree flagship • A hundred plus bungalows, and communal facilities – gardens, loft conversions and 2nd beds • 3 types of payment arrangement • One off – like buying a place – you get it back when you leave or die • Monthly payment – like rent • Reduced one off and reduced monthly payment – you get your one off contribution back if you leave/die within a certain period – a bit like rental purchase. But what about the care payments? Everyone pays a regular limited amount into an ‘insurance’ collective fund, so that when they need care, they can be funded – but they get nothing back, even if they never need care. Why doesn’t this constitute the registrable provision of care together with accommodation? They haven’t replied to my very polite enquiry, on behalf of my 63 year old husband…

17. Termination of the right to occupy This must not turn, in any sense, on the willingness of the tenant to have care, pay for care, accept care, let alone accept care from thelandlord or their agent, or from any particular company, either within the tenancy agreement, or outside of it, as a ‘side’ arrangement. Any such arrangement would obviously be an arrangement for care, together with accommodation – and whilst there’s nothing wrong with that if the care is of a hands off sort, it’s illegal to provide hands ON care, within an unregistered establishment, ie - assistance with bodily functions - if the accommodation rights are all wrapped up with that degree of care.

18. Try asking yourselves, if you’re a provider, what is the deal really FOR? • Is it assistance with bodily functions – if so, it is critical that the person or their representative is contracting for the tenancy, directly, and the care is separately contracted for. • Or is it for some lesser form of personal care, together with accommodation? – that’s fine, even if all the parties are the same, for all contracts. See s121 CSA. • Or is it merely for some kind of ‘support’ and not care at all? Mere support does not trigger registration even as a domiciliary care agency, in England at least – it’s a harder question in Wales, and a registrable service in its own right in Scotland.

19. Try asking yourselves, if you’re a provider, what is the deal really FOR? • And if it’s merely for support, to a group of people, what is the support provider supposed to do, in terms of safe staffing ratios, if one of the clients won’t agree to do what the rest of the group wants to do, on a given day? • It seems to me that in younger persons’ supported accommodation, we are building packages of support, based on a right to a percentage of a support worker, rather than on what the individual needs….which is why we risk recreating institutionalised care where people are not actually free to be unsociable. Let’s not do that in Extra Care facilities!

20. Benefit and finance matters • If a person with reduced capacity actually signs a tenancy, they at least have the right to rely on the presumption of capacity. • But if someone else signs for them, without legal authority – there’s no presumption of capacity to be relied upon – not even in theory – because it’s not the Vulnerable Adult’s own purported tenancy, in all probability. It’s someone else’s… • He or she may then be, at most, the tenant of whoever did sign, which has all sorts of implications for eligibility for HB. . ..eg where this is a son, daughter or other close relative – it may not be accepted as a commercial relationship by the HB officers – OUCH!

21. A recent benefits crisis regarding reg 10(6) exempt accommodation • The Freeholder granted a long lease to the… • Landlord – who granted tenancy to the… • Tenant – who gets support from another company (call it an SP provider) • The SP provider is in a so-called ‘joint venture’ agreement between the Freeholder, and the landlord, but is financed by the LA • The HB payable would be restricted to the local reference rent UNLESS the premises were exempt accommodation – regulation 10(6) – applying the old reg 11. If not, there’d be a £10K difference per annum per resident. • “Exempt accommodation” is defined in reg. 10(6) of the 1995 Regulations as including accommodation which is “provided by a non-metropolitan county council …… a housing association, a registered charity or voluntary organisation where that body or a person acting on its behalf also provides the claimant with care, support or supervision.” • The HB dept and the benefits Tribunal decided that the dwelling occupied by each of the appellants was not “exempt accommodation” because the care, support and supervision which was provided to the appellants by the SP provider was not provided by or on behalf of the Landlord HA. ….

22. The Commissioner’s approach • This matters for you if you have SP obligations under contract with the LA, and not directly to the tenants under the tenancy conditions. • “A strong indication against the argument [that the SP provider is acting on behalf of the landlord] is in my judgment that, if it were right, it would appear to have the consequence that not only the strictly housing related support, but also the personal care and supervision, is being provided by [that provider] on [the landlord’s] behalf. The scheme would not work unless the appellants (or at any rate the two more seriously disabled of them) receive not only housing related support but also personal care and supervision. …Yet counsel shrank from the suggestion that personal care and supervision (as opposed to housing-related support) were being provided on behalf of the landlord AS INDEED HE WOULD HAVE TO DO…because of the risk of the place being found to be registrable if the care was being provided together with the accommodation, under the tenancy!

23. The Commissioner’s approach • 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 Authorities, and social services departments for schemes not funded via SP, tend to channel the funds for the support costs directly to the support provider, rather than contracting with the landlord who then sub-contracts with the support provider. • This is in great part due to a policy development derived from the White Paper “Valuing People” in 2001, which sought to promote the maximum degree of independence for people with learning disabilities. It was considered desirable to separate the provision 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 the other. ANOTHER SHOT IN THEIR OWN FOOT BY THE VALUING PEOPLE TEAM … This case means it is actually necessary for a landlord to be one and the same as the provider of care, but simply contracting separately with the LA. See http://www.osscsc.gov.uk/judgmentfiles/j1988/CH%200423%202006-00.doc

24. Welfare concerns for landlords – and ultimately, for Extra Care, if we ignore capacity issues • Compensation for the land use aside, a landlord may not be able lawfully to evict for breach of covenant, if a tenant cannot help him or herself from causing nuisance or annoyance – for that could be disability discrimination, unless actual physical harm were being threatened. • This can put the landlord in difficulties with other tenants, who can reasonably expect such covenants to be enforced by the landlord. • A local authority will have no power to surrender a tenancy on behalf of someone incapacitated, who is refusing care, or causing a problem for others in a group setting – whether or not the person was capacitated at the time of signing the tenancy. • An attorney or receiver (a deputy, in the future) could be prevailed upon to do so, however, if one was in place. • A deputy will be able to exercise a welfare decision making role as the delegate of the court, and determine where a person should live, in their best interests, which will combine an LA or personal 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 best interests.

25. The Law Commission’s proposals for a new form of tenure for supported housing THE NEW APPROACH 10.6 Our approach now is to provide a legal framework that differentiates between types of supported accommodation. In essence, our scheme establishes three levels of tenant’s legal protection for supported housing: • (1) agreements excluded from the scheme (very short term accommodation); • (2) agreements included as standard contracts; and • (3) agreements included as secure contracts. 10.7 We have also recognised that managers in the supported housing sector have specific needs for a range of measures that can be used by them in specific circumstances. 10.8 Our new recommendations provide for as few exclusions from the scheme as possible and as few exceptions to the general requirement upon social landlords to provide housing on secure contracts as possible.

26. Law Commission proposals DETAILS OF OUR STATUTORY SCHEME 10.9 The Bill provides the first legislative recognition of the specific needs of supported housing landlords and occupiers. It provides the opportunity to 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 dubious licences, on the one hand, and (for these purposes) overly-secure assured shorthold tenancies on the other. 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 support services. We also recognise the importance of housing charities’ work in this area, and accommodation provided by charities is therefore included in the definition alongside accommodation provided by community landlords. This means that those housing charities that are not also community landlords are able to utilise the legal tools we have designed for the management of supported housing, though they are not obliged to provide accommodation on a secure contract.

27. Law Commission proposals 10.11 Notwithstanding the general objective of including supported housing in the scheme, the draft Bill excludes supported accommodation from the scope of the scheme when it is intended to be provided for a period of four months or less. This is designed to exclude respite accommodation and accommodation provided whilst a landlord assesses the needs of a client before providing them with longer-term accommodation. 10.12 During this period the normal rules about, for example, the provision of a written statement of the contract will not apply. This does not mean that landlords cannot provide their clients with some statement of their rights and obligations. In practice many do, if only to make clear what the particular house rules are. For example, many schemes explicitly prohibit alcohol or drug use on the premises, and make it clear that breach of such a rule will result in loss of the accommodation.

28. Law Commission proposals 10.13 The scheme also enables supported housing provided by community landlords to be excluded from the general requirement that they provide accommodation under secure contracts. The exclusion is, however, time limited. Initially it lasts for up to two years, and can be extended in particular circumstances that are outlined below. During this period, the landlord will enter into a modified version of the standard contract, known as the supported standard contract. The Bill does not prevent a community landlord offering a client, who has made good progress and demonstrated a capacity to live fully independently, a secure contract before the end of the two-year period.

29. Tools that will be available to the managers of supported housing 10.14 The two-year period is defined in the Bill as the enhanced management period. During the enhanced management period two specific management tools are available: exclusion and mobility within a facility. EXCLUSION 10.15 The first of these recognises that many landlords must be able, without delay, to temporarily remove a resident who is behaving violently or in a way which endangers themselves or someone else in the accommodation. At present this is achieved in practice because supported housing managers use licences which they think – often incorrectly – entitle them to evict such a person without going to court. 10.16 Although our scheme provides that, after the initial period of four months, residents should have the benefit of at least a standard contract, it also recognises that there are circumstances when immediate removal is the only practical option. 10.17 Therefore the Bill provides that it is a fundamental term of the supported standard contract that, during the enhanced management period, the landlord can exclude an occupier without the need for any intervention by the court.

30. Tools that will be available to the managers of supported housing This admittedly draconian power is subject to two vital limitations. First, no exclusion can be for more than 48 hours. Second, the landlord or the designated person must 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 are required to leave, either when requiring them to leave or as soon as reasonably practicable afterwards. 10.18 The acts which justify a temporary exclusion are: (1) where the occupier has used violence against anyone on the premises; (2) where the occupier does something on the premises which creates a risk of significant harm to anyone; or (3) where the occupier behaves in a way which seriously impedesthe ability of another resident of supported accommodation provided by the landlord to benefit from the support provided. 10.1 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 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 Government may see fit to increase or decrease this number. This may be a 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 occupier for a period longer than 48 hours. To do this the landlord will need to go to court to obtain an injunction. For example, if 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.

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