Incapacity and tenancies – new guidance, but could there be trouble ahead?

The Court of Protection has issued some new guidance (here) on when it is advisable to make an application to the court in relation to a tenancy for a person who lacks the mental capacity to enter into a tenancy agreement.  This replaces earlier guidance issued last year.
As readers may be aware, last year a tribunal ruled that housing benefit was not payable to cover rent incurred through a tenancy agreement that was entered into on behalf of a person who lacked capacity  without the requisite authority of an LPA, deputyship or order of the Court of Protection.  The ruling in Wychavon District Council v EM [2011] caused significant consternation among housing providers, and groups involved in the care of adults with learning disabilities, as potentially it cast doubt on the viability of many supported living arrangements.  At the time of the original ruling, Neary Legal wrote an excellent post explaining why he felt the Wychavon ruling was flawed, and earlier this year the judge returned to the ruling and reversed it (see Nearly Legal’s summary of this second decision here).  This turnaround must come as a huge relief to local authorities, carers, housing providers and those supported living residents whose very homes were potentially at risk as a result of the ruling.  I should expect it’s something of a relief to the Court of Protection as well, who could have been flooded with emergency applications for orders for tenancy agreements!
New Court of Protection guidance on tenancies and supported living
Since Wychavon U-Turn the Court of Protection have issued new guidance on tenancy agreements and capacity (here), which outlines when it is appropriate to seek a court order.  The guidance stresses that s7 Mental Capacity Act 2005 does not confer authority on a person who does not have the requisite authority through a Lasting Power of Attorney or deputyship to sign a tenancy agreement on behalf of a person who lacks capacity.  However, the guidance goes on to suggest that:

In some circumstances, landlords may be willing to accept unsigned tenancies, but this guidance applies to the situation where the landlord wants the tenancy to be signed. Even if the landlord will accept an unsigned agreement, it would also be appropriate to make an application where there is a dispute or if it is not clear whether the tenancy offer is in the person’s best interests.

This is rather a change of tone from the earlier guidance, which cautioned:

In some cases, the landlord of the property that is the subject of the tenancy may not require a signature on the agreement. Although this would allow the adult to move without having to wait for formal authorisation, the court discourages such practice, as it could make the tenancy agreement unenforceable and put the adult’s living arrangements at risk.

Whether or not the adults’ living arrangements would be at risk by the lack of proper authority to enter into a tenancy comes down to the difference between ‘void’ and ‘voidable’ agreements, explained by Neary Legal here.  In the new guidance the court has also indicated its willingness to consider making orders to enter into tenancy on behalf of several adults at a single time, if the sole issue to be determined is the tenancy agreement – the guidance contains more details of the procedure for doing this.  Because the court will only charge a single fee, this could be very cost effective where a group home is being set up.  People seeking further information on this issue might find it useful to contact Housing Options, who played a role in highlighting the consequences of the Wychavon ruling to the courts and nosy bloggers like me and Nearly Legal.
Incapacity and supported living: trouble ahead?
The Wychavon ruling may not be the end of the saga when it comes to issues around incapacity and supported living models of housing.  The ruling in G v E (2010) gave the boat a gentle rocking when Kerry Bretherton, counsel for E, argued that:

…the circumstances of E’s occupation preclude any tenancy ever being granted, since staff have unrestricted access to his room and provide necessary services, so that there has not been, and cannot be, any grant of exclusive possession: Street v Mountford [1985] 1 AC 809. The consequence, as Miss Bretherton submits, is that E occupies Z Road by permission of X Ltd. In those circumstances, X Ltd’s arrangements at Z Road constitute an “establishment” which provides both accommodation and personal care to E. Mr. Allen submits that Z Road should accordingly have been registered as a care home under CSA s.3. As both Mr. Allen and Miss Bretherton were quick to point out, it is therefore arguable that X Ltd is unlawfully in receipt of housing benefit under the Housing Benefit Regulations 2006. They also point out that any person who carries on or manages such an establishment without so registering is prima facie guilty of a criminal offence: CSA s.11. They therefore submit that, given that no valid authorisation could be given to the placement under DOLS, the court should not make an order sanctioning a placement that is, it is contended, tainted by illegality. [110]

As DoLS followers will know, E was in any case returned to the care of his foster mother G and as far as I can make out the Court of Appeal were not especially interesting in pursuing this issue.  Perhaps they recognised that very serious consequences it could have had for supported living models of care.  As far as I am aware the issue has not, yet, been raised again in court.  My guess, given the rather ‘practical’ direction of travel of mental capacity case law, is that the courts would in any case find some fudge around rights of occupancy being ‘different’ for people who lack capacity, and so Bretherton’s ‘exclusive possession’ arguments would be neutralised.  The issue is, I suspect, what the lawyers call an ‘academic’ point – but I find it rather fascinating for what it exposes about how incapacity interferes with how we think about home and property, and the home and property rights of people with mental disorders.
Issues around incapacity and supported living have also been discussed in this guidance from the perspective of care providers, produced by Anthony Collins Solicitors in partnership with the Voluntary Organisations Disability Group.  The guidance considers the Care Quality Commission’s definition of a ‘care home’, as opposed to ‘support in the home’, which is absolutely critical distinction in terms of the regulatory and funding arrangements for a service.  The guidance does make quite a convincing case that the CQC’s new guidance, in being reliant upon the Alternative Futures ruling, may have been displaced by the new registration requirements under the Health and Social Care Act 2008.  The background to this discussion is that everybody (including the service user) is a lot better off financially if a service is regarded as ‘care in the home’, rather than a ‘care home’, because it doesn’t have to be arranged under the National Assistance Act 1948 and it attracts (or used to attract, at least) a lot of additional funding streams like the Independent Living Fund and Supporting People monies.  The authors write that CQC’s ‘gloss’ on the distinction is that there must be:

“…a clear and sufficient separation between the provision of the accommodation and the provision of the care. The occupier must have genuine choice concerning the provision of the care”

And of course, there’s a real problem with “genuine choice” when it comes to incapacity, as the possibility of being detained in a supported living setting, as in G v E, makes clear.  There may be other compromises on choice in supported living arrangements – if you have 6 people sharing a service, is it really feasible that all 6 of them could have different care service providers if they wanted to?  Although they make a pretty persuasive legal case for suggesting there are problems with the CQC’s ‘care home’/’care in the home’ distinction, the tone of the VODG guidance did rather make me squirm.  It seems to be unashamedly from the perspective of the economic viability of these services, rather than founded in the aspirations that were the basis of supported living models of care of allowing people to choose the support they wanted in their own homes:

“‘It is clear that CQC’s primary concern is to ensure people have freedom over their choice of care provider but it is debatable whether it has a legitimate foundation in law for the stance it has taken to achieve that outcome. Providers are left unable to link any ‘care’ services to the location of the person which prevents them from being able to plan the totality of services required in an economically viable way. This does not help to deliver this type of accommodation in the volume people need.” p5

‘The essential commercial problem providers face is that the law has failed to keep up with practice and the models of supported living currently in use do not fit neatly into the regulatory framework. Significant tensions exist between the rights of the individual to self determination and choice, the financial constraints on the cost of care and the regulatory framework.’ p6-7

It is true that there are many benefits attached to being in a service that is regarded, and registered, as ‘supported living’ rather than a care home, aside from a choice of provider.  But it also seems to me that in seeking to legitimate a move away from offering genuine choice of care providers, there is a danger that we lose sight of the very ideals that supported living services were set up to deliver.  The ‘Reach Standards’, developed by Paradigm UK, used to be taken as the gold standard in whether supported living services measured up to the ideals of their creators, including by the CSCI themselves (for example, they’re cited in this report on abusive supported living services in Cornwall).  I wonder how many ‘supported living’ arrangements in reality meet them these days, and how ‘incapacity’ has the potential to disrupt each of the choices implicit within them?
1 I choose who I live with
2 I choose where I live
3 I choose who supports me
4 I choose how I am supported
5 I choose what happens in my own home
6 I have my own home
7 I make friendships and relationships with people on my terms
8 I am supported to be healthy and safe on my terms
9 I have the same rights and responsibilities as other citizens
Research for the Joseph Rowntree Foundation suggests that some care providers don’t really “get” that a supported living service is a person’s own home, and not the property of the care provider.  The key difficulty, to me, seems to be that the ‘legal’ status of supported living services rests upon whether or not a location is regarded as a person’s own home, and yet incapacity potentially interferes with the entire gamut of choices and freedoms we have come to associate with ‘home’ – from where one lives, to who one lives with, from how one lives, to who supports you in living that way, rights of exclusion from the property, rights of invitation of others into the property, to rights of freedom of movement within the property.  It’s not just that the law has to catch up with the ‘economic viability’ of particular models of care, it’s that the law is founded in the presumption that all its subjects are autonomous, rational and free agents, and mental incapacity makes that presumption deeply, deeply, problematic.
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