In the last year, communications received from Rescare members have made the threat to residential care placements ever clearer. In particular, we were contacted by the family carers with relatives in an Hft/Self Unlimited facility in Lancashire whose closure and selling-off is now proposed. In December 2013, working in conjunction with the ‘families group’, we came up with a template letter, which we encouraged any Rescare member concerned with this issue to send to the relevant ministers (Full details here).
Under development Feb 2014
The legality of tenancy agreements applying to persons with a learning disability (especially those unable to understand what a tenancy is) has ‘traditionally’ been described as a grey area, and the complexity of the law makes it greyer..
In January 2011 various court users asked the Court of Protection for guidance about signing or terminating agreements on behalf of adults who lack the mental capacity to understand or sign for themselves. Revised guidance was drawn up with the approval of the senior judge of the Court of Protection and issued in June 2011
The Court of Protection then issued new guidance (revised revised guidance!) in Feb 2012 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. An excellent blog article on the Small Places website provided an explanation and background information:
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  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!
The Small Spaces blog article by lawyer and academic Lucy Series is well worth reading in full, since it goes on to consider the intrinsic contradictions of the Supported Living model:
“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.”