Everyone needs a roof over their heads – but do social services or housing authorities have to provide one? Belinda Schwehr sets out the law behind getting a home and how authorities may obstruct this
Social services departments have a duty to provide housing in only exceptional circumstances, but these are worth knowing about.
People with section 117 rights Mentally unwell patients sectioned in psychiatric facilities with rights to aftercare under section 117 of the Mental Health Act are often told by social workers: ‘There’s nowhere suitable available right now.’
These officers do not seem to know that the s117 aftercare function enables them to arrange whatever the individual needs to meet aftercare requirements, and that best endeavours must be made to get these needs met.
This principle means implicitly that staff need to make a formal decision (sooner rather than later, but certainly within six months) as to what is needed for the rest of the discharge aftercare plan to work feasibly.
This includes determining whether having somewhere stable to live is, in their professional judgment, an essential part of this. They cannot just say: ‘We don’t ever provide housing.’
If they considered this question properly, they would then have to fund the actual accommodation instead of taking ages to get tenancies and housing benefit sorted out to cover the rent, a route that is obviously better for public bodies but less unambiguously so for those who qualify.
This necessity to provide housing can arise in law for s117 commissioners if a suitable tenancy in a supported living house with an onsite specialist provider cannot be accessed within a reasonable time; this can be because there is no vacancy or the care is not regarded as ‘affordable’ by the commissioners. It can also arise if the intended tenant will not apply for housing benefit or
will not qualify for enough funding if the type of landlord means that housing benefit entitlement is restricted.
Wanting a tenancy
People with learning disabilities who want a tenancy can include those already accommodated, albeit not ideally, in a care home, or housed by their relatives and receiving home care. They have been told that they ‘could’ or ‘should’ have the opportunity to move into the community into a tenancy with housing benefit to pay the rent.
Those with capacity to understand the difference may well want to get out of a care home and move into supported living of their choice, along with chosen, compatible co-tenants. However, these homes and how they are managed are unregulated by the Care Quality Commission, unlike care homes.
“No reasonable social services authority could have left the need to be rehoused urgently out of a social care assessment ”
What happens in practice?
People seeking a tenancy are often directed by their local authority towards vacancies in co-tenanted houses with only a single, onsite provider, on a block contract at a shared care price. Such arrangements cannot easily be changed to those where tenants have individual Care Act budgets.
An alternative is a setting with low-level services available from a housing provider through its own support service. People are not encouraged to take direct payments. In this way, shared care elements expand and individualised packages shrink.
Councils and clinical commissioning groups (CCGs) seem to think that, by withholding a care offer, they can stop a person from signing a tenancy elsewhere. They also think they can make a person take a tenancy on, contractually, with a landlord, as some sort of precondition of receiving care. Both positions are wrong.
However, that does not mean that care commissioners have to find let alone provide a home for everyone who wants or needs one.
Housing versus social services law
Housing authorities have separate, distinct legal duties to people who are homeless or threatened with homelessness. However, they only have to secure longer-term housing for people who are in ‘priority need’, which can include people who are vulnerable because of learning disabilities.
However, the thinking in housing authorities often goes like this: if the person is owed a care-related duty under the Mental Health or Care Act, the housing authority does not have to accept them as ‘homeless and being in priority need’ – they will be sorted out by the liable body.
A housing authority may also say a person is intentionally homeless as they lost their home because of challenging behaviour, which reduces the duty owed; guidance has always said people with mental illness or capacity issues should not be regarded as intentionally homeless purely because they have broken tenancy terms – they may have lacked the capacity to have had any insight into the impact of their decisions.
Flagging that up can only help, we think. But what can be done about that ‘liable body’ hurdle to that homelessness duty?
Housing authority duties
Here’s what to raise with the housing department if one is knocked back to social services or s117 planners for a roof. The existence of clear or likely Housing Act duties (ie when a person cannot be seen as anything other than homeless) explicitly excludes or is more important than any possible Care Act legal obligations to provide accommodation, at least in the first instance. This is because of the principle that other agencies’ primary or more direct duties come first, before others that are less explicit.
NHS continuing healthcare (CHC) trumps social care provision under Care Act duties because it is not chargeable. A person cannot get housing under the Care Act if they are owed a Housing Act duty. CHC status negates social services liability in any event.
The continuing healthcare national framework does not explicitly say that housing duties trump CHC, but caselaw has established that CCGs can contact housing authorities first and only use the fallback of providing accommodation themselves if they absolutely have to RÊ(Whapples) v Birmingham CCG (2014).
The right to receive benefits means that social services have no obligation to fund rents simply because people are poor. Direct payments are a conversion of a personal budget for meeting needs, not a general income subsidy in money. Councils have to point to a power to give public money to people before they can do it, or at least show there is no express prohibition if they want to use the Localism Act to hand out cash to top up rents.
s117 aftercare rights cease when one’s mental health condition stabilises, and are non-chargeable. For that reason, they seem to trump both CHC and social care status for at least the mental health aspects of aftercare, according to the national framework for CHC.
There is no equivalent to s3 of the Care Act to clarify that the Housing Act duty trumps the s117 duty in all cases of homelessness but the case law and code suggest it does.
People in assessment and treatment units
Moderately capacitated people who could sign a tenancy are not usually thought to be homeless if they are waiting in an ATU, still under detention in hospital or unsuitably accommodated in the community, which we do not think is right.
Maybe it is because housing authorities are not used to groups of arguably ‘homeless’ people applying to live together in a homelessness application.
We do not think cultural unwillingness to engage with such applications is respectably lawful, when housing authorities could obviously work with s117 or social care teams for reassurance that the support will be enough to enable people to observe tenancy obligations.
Social services liability
Now, here’s what to say when rowing in the other direction – towards social services being liable to fund access to unregistered accommodation.
The provision of mainstream housing can sometimes be a social services duty because, even when the housing authority owes a duty to someone homeless or is applying its allocations policy to those on the register, it may have a duty to provide only temporary accommodation or have an eventual long-term vision for that person. This is so inherently unstable that, while lawful in housing law, it does not suitably meet the person’s needs or human rights when seen in the round.
The courts have held that a disabled or ill person could need accommodation much sooner and more urgently than a housing authority expects to be able to manage. In R v Islington ex p Batantu (2000), the judge held that no reasonable social services authority could have left the need to be rehoused urgently out of a social care assessment, and thus trigger a duty to provide a home, even though the man was on the housing register with maximum points.
Until 2018, one could not access housing through homelessness legislation if one lacked the capacity to understand a tenancy, even if one had a deputy. However, if nobody is prepared to seek a deputyship with authority for a Housing Act application or if the wait will be too long, social services or s117 commissioners may have to provide housing via other routes, such as buying a home for people or finding other accommodation, not simply signposting and making the person wait.
Spreading that understanding, along with a coherent threat of judicial review, ought to make public bodies with care commissioning duties more willing to offer empty homes and housing benefit deficit guarantees and take deputyships, even if nothing else will.
For more on the interface between housing and social care duties and s117, and what CASCAIDr intends to do about the legal ambiguity people are caught in, please go to https://bit.ly/2khwh9V
Belinda Schwehr is chief executive of legal advice charity CASCAIDr (www.CASCAIDr.org.uk) and owner of the Care & Health Law consultancy. She has been a barrister, solicitor advocate and university law lecturer
References R v Islington LBC ex p Batantu (2000) 33 HLR 76, QBD
(Whapples) v Birmingham CCG  EWHC 2647 (Admin)