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. People with mental impairment • A person whose capacity to understand the contract you’d like them to sign, is merely in doubt, should be presumed to be capable. • If the landlord enters into a tenancy with a client who clearly lacks mental capacity, but still signs their own part of the contract, despite not understanding it, there is still a presumption of capacity. It’s not very good practice, though, on the part of those putting forward the non-comprehending client! • At most, the tenancy is voidable (in England) (but void in Scotland) at the behest of the client or their later authorised representative. • The vulnerable adult is still then liable to pay a reasonable fee for the accommodation they’ve had, regardless, based on restitutionary principles, because the arrangement was for necessaries. • The 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, there is no right to remain in occupation either, so it may be best to leave it in place and take the consequences of liability for provisions which one can no longer keep to, for practical purposes.

3. Incapacity and tenancies • A person who is still mentally capacitated, regarding taking on a tenancy obligation, can 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 it is not affected by later incapacity. • A person who is clearly already mentally incapacitated should not be asked to contract directly with a support provider or care agency, or sign a tenancy, in my view. It would be abusive to insist. • Either a lawfully authorised representative signs for the person, or the LA contracts for him or her under the NAA, or a third party signs personally in their own name for the liability.

4. Incapacity and tenancies • 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, but at least they are binding, no matter what, from the landlord’s perspective, and breach would be actionable in damages. • 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 financial authorisation, for the purchase of goods and services (shelter would not appear to be covered) related to care. So the informal ‘agent’ 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

5. Consequences for landlords – and ultimately, for Extra Care, if we ignore capacity issues • Compensation 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 could be prevailed upon to do so, however, if one was in place. • 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. • If we want Extra Care to work, we need to be honest with clients, and housing and care providers alike, in my view, or else we will seriously underestimate the costs of managing some of these issues, and that will ultimately impact on the most vulnerable clients.

6. Establishing capacity to sign a tenancy • 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 pull off following them) - ie No damage to the property; No violence towards others living there; NB I don’t think it needs comprehension of the doctrine of exclusive possession – the legal badge of a tenancy, as opposed to a licence, in land law – meaning that the person can exclude all but the landlord for good reason and other tenants from the premises. Knowing that one can do that is not key to understanding what you’re getting, to my mind.

7. 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. • 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, works to give the holder, legal authority to sign a tenancy as the agent of the incapacitated person for all purposes) • Those whose care needs are actually inimical to the independent living culture for the others there – ie those who need minute by minute supervision to keep them and others safe.

8. Why else could capacity matter? • 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… • The Courts have now dealt with that case and have said that notions of ‘choice’ are legally irrelevant to the question what is registrable and what is not…. • The tenancy in that case was an apparently ordinary tenancy, 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 as was necessary under THB rules. • 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 it had been ‘care’ before, so in this particular case, the ‘support’ given afterwards, was still care, in fact. • Therefore there was one contract, between the landlord and the parents, for what had to be seen as ‘care’, in context, together with the accommodation, and 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 registration, if the service amounts to assistance with bodily functions, which may be not what anyone desires.

9. Why would it matter? • 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. • If a person with reduced capacity actually signs, they have the right to rely on the presumption of capacity. But if someone else signs for them, without legal authority – there’s no presumption to be relied upon; it’s not the Vulnerable Adult’s tenancy, in all probability. • 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!

10. Termination of the right to occupy Contractual occupation rights and grounds for termination must not turn, in any sense, on the willingness of the tenant to have care services, pay for care, accept care – if one wishes to remain lawfully unregistered, and one’s tenants do need assistance with bodily functions. An ‘understanding’ between the client and social services, that going to live in a particular building means that one’s community care services will be provided by a particular domiciliary care provider, unless one asks for and is given a direct payment, is probably not a problem. If the client says that they don’t want care from the particular site-linked provider, that’s their choice, and they are free to make that choice – the LA does not need to offer a formal right to choose a carer, in order to discharge the duty of care. Capacitated refusal of care is one thing, and it lets a local authority off of a duty to meet need (Muriqi Kujtim is the case that establishes this) but if these clients are incapacitated, the LA may well have to accept that the client’s needs call for a different care provider, and will have to organise that, if it is indeed a need. LAs need to know that they must at least consult people about a change of provider imposed from the LA’s end, because of Essex CC ex p Bucke, 1997. I don’t think, therefore, it’s lawful for an LA to say “It’s this provider for you, or else you MUST have a direct payment…” The important thing is that the landlord does not assume that it or its care provider arm will be guaranteed an income stream from the care of all those people in that property…and that LAs don’t tender for care on the basis of a guaranteed number of clients. When the Mental Capacity Act is in force, people’s Lasting Power of Attorney representatives will probably be able to run direct payments for them, so this is no mere theoretical loss of income for the care provider.

11. What is the deal FOR? • Is it assistance with bodily functions – if so, it is critical that the person/their authorised representative is contracting for their own tenancy, and the care arrangement is totally separate from the accommodation – even if the providers are legally the same. • Or some lesser form of personal care, together with accommodation? – that’s fine, an unregistrable, even if all the parties are the same for all aspects of the service. See s121 CSA • Is it for ‘care’, or for mere ‘support’? Mere support does not even trigger registration as a domiciliary care agency, in England at least. • And if for mere 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? • It seems to me that in younger person’s 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. • Let’s not do that in Extra Care facilities!

12. 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 for instance. No amount or quality of care can then turn their domestic residence into a care home. • However, if the person acquired the tenancy since having 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 it, and hence, without a receiver 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. • An appointee doesn’t have authority to sign the tenancy. The care purchasers 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. 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 doubly worried.

13. Another significant issue for funding Extra Care - ordinary residence • …is a matter of fact and law, not convenience or agreement between local authorities • …depends on evidence of a person’s intentions to settle voluntarily for the purposes of daily living • …very little mental capacity is required because the context is a person’s civil liberties to live where it suits them, and which authority pays, not adult protection

14. What about when the client moves? • When an authority places someone out of area, under the National Assistance Act, then the person remains the authority’s responsibility, wherever they are placed. • This link is able to be severed if something happens to change the person’s position – ie they decide to become self funding, or move into independent living, such as Extra Care. • Signing a tenancy somewhere is the best possible evidence of a voluntary move to another area. LAs don’t have power to spend domiciliary care money on non-resident ex- clients – the CSDPA requires the person to be O/R • If the first LA, however, failed to do a proper assessment of capacity before abandoning the client in a tenancy, or is actually still the contractually liable entity for the whole of the cost of the accommodation as well as the care, then the original LA is still most likely to be liable…

15. What it makes sense to aim for…in the Domiciliary CARE contract • If providing care in an unregistered group setting, to more than one client, I would insist on being able to give short notice in respect of any individual client, if, in my view as a care provider, he or she posed an unacceptable risk to the comfort and wellbeing of other clients of mine or to my relationship with the CSCI by reason of their obstruction of my staff’s attempts to care… • The absence of my services would ensure that a local authority had to act quickly in order to obtain authority to surrender the tenancy so as to be able to move the client on. This is unsatisfactory in light of how few receivership officers are employed by local authorities, but at least it is possible. • I would try to ensure that there was an absolute contractual right of termination of the care obligations regarding any given individual, on my initiative, on reasonable notice – so that I could always terminate, for reasons to do with the difficulty of providing for a particular person at a particular price – when negotiation about increased dependency or needs and re-assessment have not worked...

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