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13th May 2011

Supported Living and Legal Pitfalls

Supported Living (SL) is intended to be a service for promoting the independence of people with care or support needs in their own community. The main contrast is to care home services, where the care home may, if the service user is very lucky, be located within their community. However, this isn’t often the case. Even in the community within which a care home is located, there are subtle psychological barriers to residents feeling fully independent, not the least of which is the nature of their tenancy.

The classic SL service will be a care or support service, provided to a service user who is living in their own home, with the intention of supporting that person to self-care and self-manage to the fullest extent.  That home will in some cases be owned by the service user, or may be a housing association tenancy, or a private tenancy.  In all cases, the home provider will have no connection with the organisation providing care or support.  A care or support service will then be commissioned, often by the Local Authority of the service user, but increasingly directly commissioned by the service user, and that service will be delivered into the service user’s home.  A positive feature of the classic service is that it is relatively easy for the commissioner to change the service provider, as there is no connection with the tenancy.


Choice, Costs and Conflicts of Interest

In the mid and late 1990s the author’s homecare company participated in many contracts for the identification of independent housing for people with learning disability being moved from shared accommodation, such as hospital, and the planning of the moving process.  In each case, the housing identified was closely consistent with the needs of the individual service user.  Occasionally, shared accommodation was found at the request of the service user who wanted to continue close relationships already built up.  Houses ranged from single occupancy, the norm, to three people, some was housing association, some was privately rented.  In all cases the service user was the tenant.  And in all cases, our involvement ceased under that contract at the time of the move.  We sometimes tendered for the care or support service, depending on our local resources, and sometimes we were awarded the contract, sometimes we were not.  This classic model is most clearly fundamentally designed to promote independence.  Those were the simple days of Supported Living, when the model was easy to understand.

At the time of this activity, it was a given that there must be no connection whatsoever between the landlord and the care or support service provider, not even an indirect one such as a separate company owned by the same person or people.  More recently this rule appears to have been relaxed in some areas, and commissioners have contracted services where the accommodation is owned by an organisation with significant links to the continuing care and support provider, or even in some cases, the same organisation. While such a process reduces complexity and therefore costs in some respects, not requiring the management of two fully independent organisations who may have conflicting objectives, the arrangement can in some circumstances lead to an apparent loss of choice of care and support provider and therefore independence.  Even in the cases where the landlord allows other providers on to the property and therefore theoretically the service user has full choice of service provider, careful management of the processes is required to ensure that the service user is fully aware of their rights as to choice, and can exercise them.


Confusion with Legal & Financial Implications

A sub-set of the classic service has long been the pure support service, where the level of service offered falls short of the standard DoH definition of Personal Care, and which therefore did not have to be registered.  The commissioning by Local Authorities (LA) of integrated services i.e. where the landlord and support provider were one and the same organisation, or owned by the same person(s), pointed the way to the LA’s view of the future and their own needs.  Full choice and independence could be seen to be reduced in priority in order to reduce costs.

The Health and Social Care Act 2008 (updated 2012) implementation has pushed the definition of pure support further back, where for instance even checking that the self-care has taken place can be seen as falling within the definition of personal care, and therefore requiring registration.  This places services which see themselves as not requiring registration at some risk, given that support staff are well meaning and may well habitually check where they have been instructed not to, inadvertently crossing the dividing line.

Therefore, until recently, SL had developed from the simple classic model to a range across a spectrum, from classic through to combined/integrated services, from low to high dependency, and including at the low dependency area those pure support services which do not require registration.  In recent years, there has been a move, often promoted by commissioners, to encourage some care homes to de-register and become supported living services.

A recent development of this approach has been the decision in the case of G v E and Manchester City Council [2010] EWHC 2042 (FAM).  This case arose from a disputed move by the Local Authority, of a young person with learning disabilities from an adult placement scheme to an apparent supported living placement.  The case is important in many respects, and its implications will be unpicked for some time and may well lead to a future article, but it is interesting in the context of the development of supported living for some observations made during the case.

In this case, the accommodation was owned by a person who also owned the company providing care.  Two criteria were examined in deciding if the supported living placement was in fact a care home.  This focussed on the service user’s right to exclude entry of other persons to his room, this being an important indicator of a valid tenancy.  In this case the service user was judged to not have the capacity to exclude persons from his room, that being a particular fact of this case.  In a more general decision though, it was held that because the service user required medication, there was a requirement for carers to enter his room to administer the medication, and that fact therefore made his exclusive occupation of the room not possible.  The Judge noted that if the supported living accommodation was in fact a care home, then first of all a criminal offence was being committed because it was not registered as such, and secondly, all the housing benefit paid to the provider as a supported living service would have to be repaid.

Supported Living is once more in a state of flux.  Possibly because of legal changes, and also because of changed priorities of commissioners, providers need to be very vigilant in the design and execution of their services, and certainly not take Local Authority assurances of continued business in the same vein as a certainty.

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