denotes premium content | Jan 9 2009 Feature
posted 12 Jul 2001 in Volume 6 Issue 5
Choice of accommodation – the current position
The freedom to decide where one lives is usually determined by the individual and is rarely interfered with by the State. This article explores the extent of the individual’s right to choose their residential or nursing care, particularly where they are receiving state provision and expands on some of the important issues raised by Anne Edis in her article on home closure in Volume 6, issue 3 of this Journal.
In practice, choice of accommodation arises in two ways. The first is for those who are about to go into a residential or nursing care home and the second is for those who are already in a care home and either the home is to be closed or the home’s proprietor no longer wants to be tied to the contract rate paid by the local authority or health authority.
Going into a care home
Provided the individual has sufficient income and capital and the resident is not determined to need Part III accommodation under the National Assistance Act 1948[1], he has absolute freedom to choose where to live. The usual problems of supply and demand at times can mean that choice can be limited by the lack of availability of a suitable bed in the chosen home.
Individuals who have either been self-funding and whose capital resources have fallen to the extent that they now qualify for local authority assisted funding or on the outset of the decision the individual is assessed as needing Part III accommodation their choice is governed by the National Assistance Act 1948 (choice of accommodation) direction 1992 [2]. The directions provide in exercising choice:
- A place must be available;
- The accommodation is suitable to meet the needs assessed;
- It does not cost the local authority more than usual for accommodation for someone with those assessed needs and
- The home agrees to comply with the terms and conditions set by the local authority.
In the case of R v Avon County Council ex parte M, [3] the judge accepted the opinion of experts that the preference of a man with Down’s Syndrome amounted to a psychological need. The cost of such care may limit the resident’s preference but the cost cannot put a limit on the assessed need.
The directions do not apply for nursing home placements contracted by the health authority. For example, a person who qualifies for continuing health care will have no choice as to where they live in a formal care setting. The health authority will simply inform the patient which homes they have contracts with. Some authorities are sensitive to the issue of choice and may agree to pay the amount they would pay for the usual contracted bed to the chosen home.
What about the service user who wants to move to a more expensive home?
It is not possible for the proposed resident to use his own resources to pay for a “room with a view”.[4] This amounts to a policy objection in allowing a resident to use his own capital resources to fund care where he had been financially assessed as having inadequate funds. At the current time, the prospective resident wanting freedom of choice would have to seek a top up between the fees the home wishes to charge and the rate which the local authority are prepared to fund from a third party. Many local authorities appear to be reluctant to allow a third party top up unless they have full financial disclosure of the third party and his or her spouse, principally due to concerns that the arrangement might break down. Some local authorities appear to allow third party contracts up to a certain figure such as £30.00 per week without requesting full disclosure. Such requests conflict with Article 8 of the Human Rights Act 1998, which gives everyone the right to have respect by a public authority for his private and family life, his home and correspondence. It is surprising that some local authorities feel that it is acceptable to request information from the spouse of the third party where they are not permitted to ask for similar information of a spouse of a resident.[5]
Future Changes
The Government has the intention to change the present position. Clause 54 of the Health and Social Care Act 2001 provides that regulations may be made to enable a resident or a liable relative to make a top up out of their own resources for the cost of care. By changing the position, the Government will create more choice, particularly for those who are very old and frail and who are unlikely to use up their limited resources prior to death. It also means that delays experienced by some patients who are occupying an NHS inpatient bed whilst they wait for a suitable bed to become available under a local authority contract will be able to move on more readily.
Unfortunately, experience shows for those who have no such third party, they are often left for long periods as inpatients in the NHS, “bed blocking”. Commonly, a bed blocker’s preference is determined when a place becomes available in a home that requires no third party top up. The place becomes available by virtue of the death of an existing local authority funded resident. It will be interesting to see how local authorities will interpret the outcome of the McGregor and South Lanarkshire County Council case.[6] This has already been discussed in detail in David Coldrick’s article in this Journal in December 2000.
For the individual who is to embark on Part III accommodation, their choice may be further restricted by the facilities they will receive in the home as a result of the contract that they fall under. Many Part III residents share facilities such as toilets and bathrooms and at times rooms as well. The Government, have confirmed that they will not make any plans to change the present position until 2007 at the earliest. [7]
Many independent homes are reluctant to have local authority contracts because, as bulk purchasers, local authorities can negotiate a much lower rate than the rate paid by the self- funding person. As 76% of care beds are state funded, many care homes have to accept a proportion of their beds will be subject to state contracts.[8]
According to city analysts, Laing and Buisson, care homes are still closing at a rate of 1 every 3 days and homes in the year 1999 were making an average loss of £2 per resident per day. [9] This has been in part as a result of the implementation of the minimum wage and the impact of the Working Time Directive. Add to this the impending introduction of the Care Standards Act 2000 will cause further closure of care homes for those who are unable to meet the required standards. [10]
Care outside the local authority’s area
Some local authorities operate policies, which deny residential care outside their own area and so restrict preference of home. If there were no accommodation suitable for a person’s assessed needs within the area or if the cost of a home outside the area is within the price range that the local authority would usually pay for such accommodation, then clearly such policy would be inconsistent with the direction.
Due to the patchwork of guidance [11] which allows for some cross boarder placements between England and Wales and Scotland, the Health and Social Care Act will clarify matters by providing for regulations to be brought in to allow cross border placements in Scotland, Northern Ireland, the Channel isles, and the Isle of Man. [12]
For those in Care
Preserved Right cases
For those in residential care before 1 April 1993, residents have preserved rights to income support at an enhanced level. The funding is met by the DSS through income support payments and the resident cannot receive any funding from the local authority unless their contract is broken. This usually occurs where the resident is:
- Absent for 13 weeks from the home and during that period, he was funded independently or privately or
- An inpatient for 1 year in an NHS hospital or
- Evicted from the home
The risk of being evicted from a home where the State is paying for the fees is not a new problem although it would appear it is increasing. It was the case that the proprietor would have to evict the resident from the home and the local authority would then come in with a new contract in a new care setting. However, as from 1 June this year as a result of the residential Accommodation (Relevant Premises, Ordinary Residence and Exemptions) (Amendments) Regulations 2001 [13] the local authority will be able to support residential care or nursing home placements for preserved right residents in existing care settings and so avoid eviction. This is a temporary measure pending the coming into force of Clauses 50-52 of the Health and Social Care Act 2001, which provides for preserved rights cases to become the responsibility of the local authority (from April 2002). It was according to the Government in the NHS Plan of July last year, the intention back in 1993 for preserved right cases to become the responsibility of local authorities and it was merely the volume of cases that the local authorities would have had to take on board all at one time then that created the different systems.
Previous self - funders
Once a person has used up their resources, prior to the local authority stepping in and taking over any financial responsibility, they will need to have their needs assessed under Section 47 of the National Health Service and Community Care Act 1990. There is always the risk that the individual is not considered to be in a home appropriate to their needs. For example, the resident placed himself in a nursing home where he only required residential care. Whether the local authority decides to move the resident will depend on his age, health and the length of stay at the home. It could be argued, for example, that an individual who has been resident at a care home for a number of years has a human right to continue to stay there as it is for all intents and purposes his home and family life and this should be protected under the Human Rights Act 1998.
Home Closure- can anything be done?
State run homes
There is now quite a body of case law that has built up in respect of home closure. Local authorities are able to close their own homes and arrange for all care to be passed to the independent sector [14], although there must be adequate consultation with residents.[15] More recently, the argument on closure has expanded to cover an expectation of a home for life. In 1999 the Court of Appeal held in favour of Pamela Coughlan, [16] that a home for life promise given by the health authority to Miss Coughlan had bound them. The home for life promise has been considered in two subsequent cases.
In R v Merton, Sutton and Wandsworth Health Authority ex parte Perry and others [17], the High Court quashed the health authority’s decision to close a long stay hospital for patients with profound learning difficulties. The applicants were all residents at Orchard Hill hospital, which stood on the grounds of the former Queen Mary’s Hospital for Children. Many of the 119 resident’s had spent their childhood at Queen Mary’s. Assurances were previously made by the health authority to the patients’ families that their home at Queen Mary’s would be theirs for life or for as long as they or their parent’s chose. The applicants alleged that these promises were again made to them on the move from the former to the new hospital. The health authority further said that the hospital would not be closed against the wishes of the residents and nor would the residents be relocated against their will unless it ceased to be financially viable. A consultation document was circulated which proposed the closure of the hospital and provision for alternative arrangements for its residents. The document was flawed as it had made assumptions that one quarter of the residents would require continuing health care from the NHS, whilst the remaining three quarters would be transferred to homes run by the Social Services Department. However, no detailed assessments of the individuals for any of the residents had been carried out prior to its publication.
The court was satisfied that there was sufficient evidence of a promise of home for life and the families had made crucial decisions based on those promises. The health authority had failed to take into account the promises made and the decision to close could not be justified on the basis of an assumption as to how the residents could be otherwise accommodated.
In the more recent case of R v Camden London Borough Council ex parte Bodimead and Others [18], four residents sought judicial review of the council’s decision to close a home. The resident’s handbook stated that the aim of the home was to provide residents with a home for life, subject to any changes to their health needs.
The court held in deciding whether the handbook was reasonably capable of raising an expectation that the home would be one for life, the test to be applied was what the ordinary resident would think the handbook was attempting to convey. Residents could therefore expect to live in the home subject only to their own health. However, the residents’ needs were not considered and the decision to close the home was taken before the council had assessed the residents’ needs and as such no care plans had been prepared. The council did not have therefore all relevant material or considerations before it when making their decision and so the home closure was prevented.
The Court felt that it was not necessary to consider any breach of the Human Rights Act.
It is surprising that in both these cases the local authority had failed to carry out needs assessments of the residents. There is an obligation on the authority to provide accommodation appropriate for the assessed needs. Without an assessment no alternative accommodation can be considered. If there is no such alternative available accommodation that will fulfil the assessed needs then it follows the authority will not be able to lawfully close the home.
Independent homes
There is very little that one can practically do to stop a home closure of an independent home as was highlighted in the recent case of Elizabeth Heather and Others v The Leonard Cheshire Foundation and the HM Attorney General.[19] The claimants had all lived in the care home for over 17 years. A decision was made to close the home and transfer the residents to smaller community based units. The claimants argued that the Foundation was exercising a public function within the meaning of Section 6 of the Human Rights Act. If successful, it would have meant that the Foundation owed the claimants a duty to comply with their right to respect their home pursuant to Article 8 of the European Convention of Human Rights. The argument never got off the ground, as there is sufficient case law to conclude that the Foundation and similar bodies are not amenable to judicial review. As over 80% of care beds are provided within the independent sector, for the residents of such homes, when closure is a possibility there is very little we can do to alter the situation.[20]
At times choice of accommodation can be academic, particularly for those moving into care homes but for those who are already in care there may be far more that we can achieve for them. Always check at what level a decision is being made, as at times inappropriate outcomes are reached by social workers. If necessary, communicate with the legal department, where decisions may be more favourable.
Caroline Bielanska LL.B (Hons), TEP Solicitor, lecturer and freelance consultant
references
[1] S. 21-26 NAA 1948
[2] LAC (92) 27
[3] [1999] 2 CCLR 185
[4] LAC (2001) 10 at 8.018
[5] LAC (2001) 10 at 11.005
[6] www.scotscourt.gov.uk/opinions
[7] Department of Health press release 21 July 2000
[8] Laingbuisson.co.uk - “care of elderly people market survey”.
[9] As above
[10] The standards come into force from 1.4.02
