Fri 20-Feb-09 08:46 AM by shawn

I hope you don't mind but I've copied this from another forum and wondered if any of you had any bright ideas

Background is:

People with profound and complex LD moving out of a hospital in patient setting out into supported living setting in the community.
They will be moving into flat-lets in complexes / flats / shared housing.
They will each have their own tenency agreement with a housing association or charity. It is not registered with CSCI as the home owners provide no care.
They will be provided with appropriate levels of care from other agencies - not the groups providing the accommodation - Domicilliary Care Agencies who are registered with CSCI.

We have applied for housing benefit for the people who will be entitled. We have been turned down as the Manager who looked at the claims says it is a residential care home. We appealed. She reviewed her own decision as the manager of the Housing Benefit Team and agreed that she had been right to turn the claims down in the first place.

We have checked with CSCI - they have confirmed to us and her that it is not a registered care home, and the people are entitled to Housing Benefit.
We have checked with the DWP - they have told us she is wrong and given us a person who she should contact to get the facts - she refuses as she does not want to speak to them as she doesn't have to. She cites the "Community Care act" as her support for her decision. No reference as to what part of the act, or indeed any clue without a reference number.

We have now spoken with her. She wants us to go for a legal review - and (this is the one that sticks in my throat) she is excited about this being a really interesting test case. Ignoring the fact these people will lose out on their placements. She wants us, and her district council, to pay for expensive legal advice and support and to have a hearing where we have already be told she will be overturned and rebuked publicly. What a waste of public money. What a shame five people are going to lose out on fantastic placements that would make them very happy.

GAAARRRRRRGGGGHHHH!!!!!!

Any people who work with Housing Benefit / Benefits point me in the direction of what she is citing (can't give you any more info - we don't have it!)? Please. She can't be this obtuse with no reason can she?

The relevant bits in the Hb regs are as follow.

HB Regs 2006

Circumstances in which a person is to be treated as not liable to make payments in respect of a
dwelling
9.—(1) A person who is liable to make payments in respect of a dwelling shall be treated as if he were not
so liable where—
(k) he is in residential accommodation;

“residential accommodation” means accommodation which is provided in—
(a) a care home;

“care home” in England and Wales has the meaning assigned to it by section 3 of the Care Standards Act 2000(g) and in Scotland means a care home service within the meaning assigned to it by section 2(3) of the Regulation of Care (Scotland) Act 2001(h);


section 3 of the Care Standards Act 2000 defines a care home as any home which provides accommodationtogether with nursing or personal care for any person who has been ill (including a mental disorder), is disabled or infirm, or who has a past or present dependence on drugs or alcohol.

PS - to avoid any confusion I am NOT saying I agree with the LAs decision in this case, I am just pointing you to the regs that the LA would have considered.

Jeff

The important thing is that the claimants all appeal. In cases like this you can spend months or even years arguing the case and getting nowhwere. Once an appeal is made the council must either change its mind or submit the case to an appeal tribunal. Once they do so they must cite the legislation and reasoning for their decision. So it is worth appealling just to get that. However a high proportion of cases are changed without a hearing.

You say "we appealed" and that the decision was reviewed but not revised. The LA should have then prepared a submission and sent it to tribunal, you would then be notified of the date of the hearing. If the LA have not done that then they have failed to deal with the appeal properly.

I would write to the tribunal for your area all the info is here:

http://www.tribunals.gov.uk/index.htm

set out exactly what has happened and ask that a tribunal jusge direct the authority to make a submission

Providing that there is no hidden organisational link between the care providers and the accommodation provider (always worth checking that one – see R (Moore) v Care Standards Tribunal and another (2005) CA) then I don’t see any problem

If accommodation is not required to be registered under the Care Standards Act then it is a domestic establishment and HB is payable. Even if the entire establishment is a registered care home, a person who has a license to occupy a room and is not receiving personal care at all is not classed as being in a residential care home.

Test case my a**e. In her head, maybe!

'Interesting' though the case may be, judicial review is not available if there is a suitable alternative method of resolving the dispute. You would need to exhaust the usual first-tier and upper tribunal appeal processes first.

The attitude - in particular the refusal to talk to the DWP - seems extraordinary.

As well as the appeal process, is there any way you get this taken up at a more senior level in the LA - e.g. by using the LA's compaints procedure or getting one of the Councillors involved?

similar type of query - DLA care, supported living schemes, not registered care home, and after care services under section 117 Mental Health Act 1983 - also HB and the above - anyone got an opinion on payability of benefit?

Shaun

The problem is that the current definition used for the HB regs does not limit a “care home” to one that is registered. It only needs to be “any home which provides accommodation together with nursing or personal care” which could possibly catch quite a wide range of accommodation where the landlord, or a linked organisation, also provides care.

Obviously, each case has to be judged on its own merits and I have to say that I don't really know enougth about care provision to understand what is involved in "after care" services, but if only support, not actual care is provided I would expect that the rental element would be HB eligible.

Although that is technically true, that definition is contained in section 3 of The Care Standards Act 2000 and thus would trigger the registration requirement. When I was working on the transitional housing benefit scheme Department of Health guidance suggested that “personal care” which triggered registration requirements was hands on care, i.e. help with washing dressing, etc, or help that was of a sufficient intimate nature such as having to be present in the bathroom/bedroom while a person bathed/used the toilet/ dressed, etc.

Thus the kind of care which amounted to general counselling and support was excluded from the definition and did not constitute “personal care” within the meaning of the Act. If that definition has since been amended then I stand corrected.

Thus as suggested each case will turn on its own facts. The two questions which need to be asked are:

1.Does the care provided constitute the kind of care which would constitute personal care under the Act? If no, the enquiry stops there. If yes then go to 2.

2.Is the care being provided by the same organisation that provides the accommodation? This might not be so obvious at first sight. See the case I cited above.

A bit more info on what constitutes a care home.


Section 3 Care homes
33. Section 3 defines a care home as any home which provides accommodation together with nursing or personal care for any person who is or has been ill (including mental disorder), is disabled or infirm, or who has a past or present dependence on drugs or alcohol. The definition is intended to include residential care homes and nursing homes, as defined in the 1984 Act. The Commission will be able to impose conditions on care homes as to the categories of person they can accommodate. Residential care homes run by NHS bodies will be required to be registered under this definition of care homes as the provision of residential (as against nursing) homes is not a core NHS function as such. Local authority provision under Part III of the National Assistance Act 1948 will be required to be registered.

34. "Personal care" in the context of care homes includes assistance with bodily functions where such assistance is required. This may include, for instance, assistance with bathing, dressing and eating for people who are unable to do these things without help - see section 121(9). This means that an establishment is not defined as a care home unless that type of assistance is provided where required.

35. Subsection (3) excludes NHS hospitals and private hospitals and clinics, including establishments which receive patients liable to be detained under the Mental Health Act 1983 (see paragraph 28 above), and gives the appropriate Minister power to make other exceptions in regulations. (Homes which take patients on section 17 leave under the 1983 Act but do not take detained patients will need to be registered as a care home not as a hospital).

36. Homes which provide personal care and accommodation for disabled children are to be treated as children's homes and not care homes.

Thanks all for your thoughts, I've passed your info back.

In reply to Shaun:

I think you are referring here to the bit where an authority has a duty to provide accommodation without charge- If that is the case then my comment is that this is a duty on the authority and not the accommodation provider (unless they are the same)

If the claimant has accommodation and has signed a tenancy agreement or licence then they are liable to pay and HB can be paid. This is a separate matter from the issue of whether they can demand accommodation from the authority without payment.

I think it would be wise to advise the tenant that they are entitled to free accommodation, but I can't see that there are any grounds to refuse HB unless the provider is the authority with the statutory duty.

On a more general point I often come across cases where the HB office think that the accommodation ought to be registered but this does not give grounds to refuse benefit. A concerned authority can report the situation to the Care Standards Agency however.

Re: Shaun's s117 query, I think the first thing to do is to establish the scope of the services provided under the aftercare package.

Aftercare can include many things, from specialist counselling to secure accommodation. If a particular Aftercare Plan includes a named address at which the range of social care services will be provided, you wouldn't expect to find a liability to pay rent (applying the principle that the ex-patient shouldn't be charged for anything in their aftercare plan).

In my experieince within the supported housing sector, most aftercare plans (such as they ever exist!!) will specify a range of social care services as opposed to particular accommodation. As long as the accommodation is not a registered care home, a hospital/nursing home, or 'certain accommodation' (costs borne from public funds under a relevant enactment of disability, of which the Mental Health Act is one (see R(DLA) 6/04), then benefits should be payable as in any domiciliary care scenario. DLA Regs 9(6)(a) determines payability in a person's own home. Rental liability in a private dwelling should permit HB.

The only question that nags me a bit is whether or not it could be argued that services and accommodation in many supported housing schemes are inextricably linked, and in most cases receiving the services will be a condition of tenancy. Shouldn't the statutory duty to pay for Aftercare services under s117 cover both accommodation and linked care/support (rendering the tenancy contrived)?

Perhaps we need a test case, but almost certainly NOT the one that started off this thread!!