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legal: housing

Examples are:
l 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.
l 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
R (Whapples) v Birmingham CCG (2014).
l 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 Path to a home: housing authorities could work with section 117 or social care teams to gain
of a personal budget for meeting needs, reassurance that enough support will be in place to enable people to observe tenancy obligations
not a general income subsidy in money.
Councils have to point to a power to We do not think cultural unwillingness (2000), the judge held that no reasonable
give public money to people before to engage with such applications is social services authority could have left
they can do it, or at least show there is respectably lawful, when housing the need to be rehoused urgently out of a
no express prohibition if they want to authorities could obviously work with social care assessment, and thus trigger a
use the Localism Act to hand out cash s117 or social care teams for reassurance duty to provide a home, even though the
to top up rents. that the support will be enough to enable man was on the housing register with
l s117 aftercare rights cease when one’s people to observe tenancy obligations. maximum points.
mental health condition stabilises, and Until 2018, one could not access housing
are non-chargeable. For that reason, Social services liability through homelessness legislation if one
they seem to trump both CHC and social Now, here’s what to say when rowing in lacked the capacity to understand a
care status for at least the mental the other direction – towards social tenancy, even if one had a deputy.
health aspects of aftercare, according to services being liable to fund access to However, if nobody is prepared to seek a
the national framework for CHC. unregistered accommodation. deputyship with authority for a Housing Act
l There is no equivalent to s3 of the Care The provision of mainstream housing application or if the wait will be too long,
Act to clarify that the Housing Act duty can sometimes be a social services duty social services or s117 commissioners may
trumps the s117 duty in all cases of because, even when the housing authority have to provide housing via other routes,
homelessness but the case law and owes a duty to someone homeless or is such as buying a home for people or
code suggest it does. applying its allocations policy to those on finding other accommodation, not simply
the register, it may have a duty to provide signposting and making the person wait.
People in assessment and treatment units only temporary accommodation or have Spreading that understanding, along with
Moderately capacitated people who could an eventual long-term vision for that a coherent threat of judicial review, ought to
sign a tenancy are not usually thought to person. This is so inherently unstable that, make public bodies with care commissioning
be homeless if they are waiting in an ATU, while lawful in housing law, it does not duties more willing to offer empty homes
still under detention in hospital or suitably meet the person’s needs or and housing benefit deficit guarantees and
unsuitably accommodated in the human rights when seen in the round. take deputyships, even if nothing else will. n
community, which we do not think is right. The courts have held that a disabled or l For more on the interface between
Maybe it is because housing authorities ill person could need accommodation housing and social care duties and s117,
are not used to groups of arguably much sooner and more urgently than a and what CASCAIDr intends to do about
“homeless” people applying to live housing authority expects to be able to the legal ambiguity people are caught in,
together in a homelessness application. manage. In R v Islington ex p Batantu please go to https://bit.ly/2khwh9V

Belinda Schwehr is chief executive of legal
advice charity CASCAIDr (www.CASCAIDr.
Has the aftercare team really before sending the social worker back to org.uk) and owner of the Care & Health
looked for a home? the care and treatment review or Law consultancy. She has been a barrister,
Legal case sought discharge planning meeting to say: solicitor advocate and university law lecturer
“There’s nowhere out there right
CASCAIDr is looking for a case where a now.” The person must qualify for References
Christy Lawrance drawn on what sort of open-minded, l Contact Belinda Schwehr on 76, QBD
legal aid.
section 117 team has refused to be
R v Islington LBC ex p Batantu (2000) 33 HLR
house-hunting trip they’ve been on
belindaschwehr@cascaidr.org.uk
R (Whapples) v Birmingham CCG [2014] EWHC
2647 (Admin)
www.cl-initiatives.co.uk Community Living Vol 33 No 1 | Autumn 2019 9