Homelessness Multiple Needs and the Law John Macklin

Homelessness Multiple Needs and the Law

John Macklin

19 Apr 2023, Slide no: 2

Multiple Needs

Health and safety Rules Introduction to the course – flexibility on timetable

Introductions participants

1. Name

2. Role

3. Knowledge/experience of working around CC?

4. Key issues for your Clients? Trainer


Proposed rules

1. Everyone gets much more out of being involved in a training course, so

2. Enjoy the day – lets make it interactive – no passive consumption – everyone has valid experiences and views to contribute

3. If you are particularly shy, that is all right too4. If you don’t understand, disagree or are plain bored – please

interrupt5. If there are issues not being addressed that you want covered,

please speak up6. If there are views or attitudes expressed that people disagree with,

please feel free to challenge – respectfully7. We will record any suggestions for improving local practice


Aims of the course

1. Clarify the assistance that homeless and badly housed people should be entitled to under the homelessness legislation (Part VII Housing Act 1996 as amended by the Homelessness Act 2002) and through the allocation of social housing via Part VI Housing Act 1996 (subject to amendment by the Homelessness Act 2002 in January 2003).

2. Explain the legislative framework that governs access to community care services. Such services may be needed directly by homeless people and/or to assist them in sustaining tenancies.

3. Examine the structural links between the legislation.4. Assist participants to develop confidence in acting as advocates to

challenge adverse decisions or lack of service provision.5. Raise issues on working strategically to improve services and

remedy deficiencies in service provision.


The founding community care legislation

The HHSCCA s.46 defines community care services as those: -...services which a local authority may provide or arrange to be provided under any of the following provisions –

(a) Part III of the National Assistance Act 1948;

(b) section 45 of the Health Services and Public Health Act 1968;

(c) section 21 of and Schedule 8 to the National Health Service Act 1977; and

(d) section 117 of the Mental Health Act 1983;Controversially this does not include the Chronically Sick & Disabled Act 1970 s.2 as a community care service……….


Context

Problems in accessing mental health services1. Screening and eligibility criteria2. Philosophy v practice, the NSF

2.1 Across all trusts less than a half of all service users had access to crisis care2.2 Only half the service users had been given a copy of their care plan

3. Reduced residential capacity but increased demandThe number of available beds in England is decreasing year on year, from around 40,000 ten years ago to 32,000 today.

4. Stigma5. Lack of representation/advocacy6. Client’s lack of involvement in their treatment


Access to medication+talking therapies

Healthcare Commission research into 27,000 service users (2004). In the last 12 months have you taken any medication for your mental health problems?Yes 93%No 7%In the last 12 months have you had any talking therapies from the Mental Health Services?Yes 42%No 58%


Prevalence of mental health problems

1 in 6 of the population surveyed in England exhibited symptoms in the week prior to interview sufficient to warrant a diagnosis of a common mental health problem

Women exhibited higher rates than men overall However the statistics on both formal and

informal admission to hospital evidences a predominance of males admitted to hospital under the Mental Health Act


Ethnicity and hospital admission

Rates of admission into hospital are three or more times higher for black and mixed heritage groups compared with the average.

Black groups are up to 44% more likely to be detained under the Mental Health Act.


Mental health and the criminal justice system

One of the major concerns of professionals working within the criminal justice system and mental health services is the overwhelming over-representation of people with mental health problems within the prison population.

The diversion of mentally ill offenders to treatment rather than custody has declined in almost inverse proportion to the increase in the prison population.


Mental health of the prison population

Characteristic General

population Sentenced prisoners

5% men 72% men Suffer from two or more mental disorders 2% women 70% women

1% men 44% men Suffer from three or more mental disorders 0% women 62% women

12% men 40% men Neurotic disorders i.e. sleep, worry, anxiety and depression

18% women 63% women

0.5% men 7% men Psychotic disorders i.e. schizophrenia and manic depression

0.6% women 14% women

5.4% men 64% men Personality disorders

3.4% women 50% women

(SEU 2002)


Drop in diversion from criminal justice

1993-4 2003-4 Percentage difference

Total formal Mental Health Act admissions

23,766 26,235 +10%

Court and prison MHA disposals

2,253 1,601 -29%

Court and prison disposals as a proportion of total MHA admissions

9.5% 6.1% -36%


Vulnerable because of MH problems

Year Total acceptances

Vulnerable due to MH

%age of all acceptances

2003/4 135,430 12,070 9%

2004/5 120,860 10,650 9%

2005/6 93, 980 7,340 8%

2006/7 73,360 5,420 7%

2007/8 63,170 4,150 7%


Advocates need access to (1):

A. National legislative framework1.The legislation2.Relevant directions, regulations and guidance,

particularly FACS3.Case law

At times the greyness of the legislation may suggest that the basis for a challenge may be local policies and procedures. Many of these documents are likely to be available from your local social services website.



B. Local policy and procedures4.All social service departments are statutorily

obliged to have a Joint Investment Plan with Health

5.The local “Better Care, Higher Standards” charter. This document should give information on the services available and timescales for carrying out assessments.

6.Eligibility criteria. After April 7th 2003 all decisions will be based on a national framework “Fair Access to Care Services” (FACS)



7. Information on “Your right to see your file”.

8. The most recent inspection of the social services department carried out jointly by the SSI and the Audit Commission. Available either on the social services website or via the DoH website, see useful references.

9. Any specific policies on particular need groups available on the website.

10. The authority’s complaints procedure.


The Adult Care Process

Four stage process

1. Assessment

2. Eligibility

3. Care Plan

4. Review (and maybe re-assessment)


Decision making on community care services

1. ASSESSMENTDUTY to carry out an assessment if there appears to be a need for community care services S.47(1)(a)

2. DECISION MAKINGInitially based upon FACS – but consider the position of the applicant under s.2 CSDA and s.117 MHA

3. CARE PLANNINGIf assessment has identified an eligible need then SSD have to produce a care plan to state how these needs are going to be met.

4. REVIEWServices should be reviewed with 6 weeks of commencement to ensure that the aims of the care plan are being met. If not it should be adapted. Thereafter services should be reviewed either annually or upon any change of circumstances.


R v Bristol City Council ex p Penfold 1998

The judgement held that: -1. Where there is an apparent need for community care services

which a local authority is empowered to provide then the authority must undertake an assessment under NHSCCA 1990 s.47(1)(a).

2. Even if it were the case that a service user has no sensible prospect of being awarded services because of constraints upon resources, that does not absolve the local authority from conducting a s.47(1)(a) assessment.

3. The discharge by a housing authority of its obligation under the homelessness legislation does not preclude the need for a community care assessment.When they carry out an assessment social services must inform health and housing authorities if they think that there are also health and housing needs and must invite these authorities to become involved in the assessment.


R v Glos County Council ex p RADAR

"The obligation to make an assessment for community care services does not depend on a request, but on the "appearance of need"... Of course, the authority cannot carry out an effective assessment without some degree of co-operation from the service user or his helpers. However, that is a very different thing from saying that they can simply rest on having sent a letter of the type to which I have referred".


DUTY to carry out an assessment

s.47(1) Subject to subsections (5) and (6)* below, where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority-

(a) shall carry out an assessment of his needs for those

services;and

(b) having regards to the result of that assessment, shall decide whether his needs call for the provision by them of any such services.

* Provision of services in an emergency


Clear duties

1. S.21 National Assistance Act 1948

Provision of accommodation for those in need of care and attention that they will not receive if they are not provided with accommodation

2. S.117 Mental Health Act 1983

Anyone sectioned under a treatment section potentially has a lifelong right to a service (free) if they appear to need it

3. S.47 NHS+CC Act – right to an assessment triggered by the appearance of need

4. S.2 CSDPA


Assessments

Identified Needs The authority should decide which of the

identified needs ‘calls for the provision of services’ i.e. eligible needs under Fair Access to Care Services

There is a duty to meet needs in some circumstances. For example under:S.21 1948 National Assistance Acts.2 Chronically Sick and Disabled Persons Act 1970, s.117 Mental Health Act 1983


Community Care – Policy Guidance (1990)Assessments must be carried out in accordance with LASSA Guidance.

3.16 The individual service user and normally, with his or her agreement, any carers should be involved throughout the assessment and care management process.

3.19 The assessment and care management process should take into account particular risk factors for the service users, carers and the community generally; abilities and attitudes; health (especially remediable condition or chronic conditions requiring continuing health care) and accommodation and social support needs.

3.24 Once the needs have been assessed, the services to be provided or arranged and the objectives of any intervention should be agreed in the form of a care plan.

3.25 The aim should be to secure the most cost-effective package of services that meets the user’s care needs, taking account of the user’s and carer’s own preferences.


Eligibility – FACS

Four bands of need, based on the level of risk to the independence of the individual if provision is not made:

critical; substantial; moderate; and low

When assessing this risk social services are expected to take the following factors in to account:

autonomy; health and safety; the management of daily routines; and involvement in family and wider community life.


Critical need - FACS

life is, or will be, threatened; and/or significant health problems have developed or will develop; and/or there is, or will be, little or no choice and control over vital aspects

of the immediate environment; and/or serious abuse or neglect has occurred or will occur; and/or there is, or will be, an inability to carry out vital personal care or

domestic routines; and/or vital involvement in work, education or learning cannot or will not be

sustained; and/or vital social support systems and relationships cannot or will not be

sustained; and/or vital family and other social roles and responsibilities cannot or will

not be undertaken.


Substantial need - FACS

there is, or will be, only partial choice and control over the immediate environment; and/or

abuse or neglect has occurred or will occur; and/or there is, or will be, an inability to carry out the majority of

personal care or domestic routines; and/or involvement in many aspects of work, education or

learning cannot or will not be sustained; and/or the majority of social support systems and relationships

cannot or will not be sustained; and/or the majority of family and other social roles and

responsibilities cannot


Defining Dual Diagnosis

The term ‘dual diagnosis’ covers a broad spectrum of mental health and substance misuse problems that might be experienced concurrently. The nature of the relationship between these two conditions is complex. Possible mechanisms include:

a primary psychiatric illness precipitating or leading to substance misuse

substance misuse worsening or altering the course of a psychiatric illness

intoxication and/or substance dependence leading to psychological symptoms

substance misuse and/or withdrawal leading to psychiatric symptoms or illnesses.


Dual diagnosis

1. Mental Health Policy Implementation Guide: Dual Diagnosis Good Practice Guide (2002)

2. Little impact so fresh guidance issued operative from 8.2.2007: Dual diagnosis in mental health inpatient and day hospital settings


Community Care Services - Housing

Residential accommodation can be ordinary accommodation and the phrase is not restricted to care homes or nursing homes

A need for care attention has been said to mean a need to be ‘looked after’ (see R (Wahid) v-Tower Hamlets LBC [2002] EWCA Civ 287).


Accommodation under NAA s.21

The primary power/dutyPart 3 of the National Assistance Act 1948 originally gave a power to social services authorities to make arrangements for providing residential accommodation for those who `by reason of:

• age; • illness; • disability; or• any other circumstances

are in need of care and attention which is not otherwise available to them'. Circular LAC(1993)10 translated the power into a duty and includes people with mental health and dependency problems


Accommodation under NAA s.21

LAC (1993) 10 translated s.21 to a duty where people are in need of care and attention as a result of:

* age;

* illness;

* disability; or

* any other circumstances

and they will not get that care and attention if accommodation is not provided for them.


Schedule 1 of LAC(93)10:

This LASSA guidance effectively converted s 21 NA48 into a legal duty.

Paragraph 2(1) The Secretary of State hereby – (b) directs local authorities to make arrangements

under section 21(1)(a) of the Act in relation to persons who are ordinarily resident in their area and other persons, who are in urgent need thereof, to provide residential accommodation for person’s aged 18 or over who by reason of age, illness, disability or other circumstances are in need of care and attention not otherwise available to them.


s.21 an untapped resource?

Power becomes duty – LAC (93) 10 The limitation – not if owed an accommodating

duty under other legislation The 5 key issues

1.What is “residential accommodation”?

2.Age illness disability or other circumstances

3.What “care and attention”

4.Not “otherwise available”

5.Asylum and Immigration limitations


1.What is “residential accommodation”?

Can be ordinary residential accommodation Batantu

Lack or resources not a defence

Penfold case – we don’t do that so no point in carrying out an assessment

Wahid – if urgent need not met by Housing under Part VI or VII then duty over to s.21


Accommodation for whom?

Generally the applicant only (Wahid and O)

BUT

See Batantu – whole family

Khana – included carer

Hughes – included whole family as

mother primary carer

Division s.21/Part VII Mooney s.4.15 notes


2. Other circumstances?

At Appendix 1 the circular refers to: Mental disorder: Residential accommodation

can be provided for persons who are or have been suffering from mental disorder, as well as for the prevention of disorder.

Alcohol or drug dependency: In this case however the residential accommodation is for those actually dependent (rather than for prevention as above).


3. Need for care and attention

Courts presume a generous interpretation: R v Westminster CC ex p MPA+X

Can be psychological as well as educational social and medical needs: R v Avon CC ex p M

Tests for s.21 operate independently of FACS: R (N) v Lambeth


4. Not otherwise available to them

Possibly residential; accommodation that a frail elderly person can not afford to pay for

See Hughes case special needs accommodation falls under s.21 if urgent need not being met

Batantu People subject to immigration control


5. Still qualify when subject to immigration control

Asylum + Immigration Acts

Destitution plus test

Nationality, Immigration and Asylum Act 2002

Human rights exemptions


MHA 2007

CONTEXT Why? Reduced residential capacity – increased

demand 40k – 32k Mental health and the criminal justice system –

tables 3.5 The Prevention Agenda


MHA 2007

1. A new broad definition of mental disorder

2. The 'treatability' and “care” tests are replaced by an 'appropriate treatment test'

3. Changes to professional roles

4. The nearest relative rule has been amended

5. New safeguards are introduced to the use of Electro Convulsive Therapy


MHA 2007

6. The introduction of Independent Mental Health Advocates (April 2009)

7. Young People – age appropriate accommodation and services.

8. Supervised community treatment is created through the introduction Community Treatment Orders

9. Changes to the operation of Mental Health Tribunals


MHA 2007

10.Place of Safety

11.Amends the Domestic Violence and Criminal Victims Act 2004


The grounds for compulsory admission are:

it is in the interests of the “patients” health

it is in the interests of the patient’s safety

it is for the protection of other people


MHA 2007 changes

1. Replacement of the treatability test with appropriate treatment is available

2. Pre-amendment conditions for Section 3: mental illness, severe mental impairment (sometimes referred to as the major

disorders),

mental impairment and psychopathic disorder.

3. New conditions: Is suffering from mental disorder of a nature and degree which

makes it appropriate to receive hospital treatment


Community Treatment Orders

Only apply to treatment sections Conditions must be attached but the subject has

no right of appeal to the MHRT – inviting challenge under the Human Rights Act?

Can appeal against the making of the CTO Fears – insufficient resources in the community Alternatives s.17 leave or Guardianship


Fears on CTO’s

“Many service users will not be discharged to stable, staffed accommodation, so nobody will have the foggiest idea what they are doing most of the time, or whether they are taking their medication unless it’s by injection administered by a psychiatric nurse”.


Fears on CTO’s

“Most people who would comply when subject to sanctions would comply without them, but some would not comply regardless of sanctions and if you put such people on an order, you would end up being held responsible for behaviour which you were powerless to control”.


Global perspective

“In New Zealand where such orders have been used for 20 years three quarters of patients are treated under compulsion in the community. Whatever the therapeutic benefits, hospital says have been dramatically reduced to an average of 9 days compared to the current UK average of 35 days”.


Community Care Services – Other Services

The identification of a need for services does not always give rise to a duty to meet that need – see FACS

In respect of these services, it is sometimes lawful for a social services authority to leave an identified need unmet i.e. not eligible

Essentially the position is as follows:

Section 29 National Assistance Act 1948 provides a power to promote the welfare of people with community care needs

That power is sometimes ‘made up’ to a duty e.g. by Section 2 of the Chronically Sick and Disabled Persons Act 1970


S2 of the Chronically Sick + Disabled Persons Act 1970

2(1) Where a local authority having functions under section 29 of the National Assistance Act 1948 are satisfied in the case of any person to whom that section applies who is ordinarily resident in their area that it is necessary in order to meet the needs of that person for the authority to make arrangements for all or any of the following matters, namely –

(a) the provision of practical assistance for that person in his home;

(b) the provision for that person of, or assistance to that person in obtaining, wireless, television, library or similar recreational facilities;

(c) the provision for that person of lectures, games, outings or other recreational facilities outside of his home or assistance to that person in taking advantage of educational facilities available to him.


CSDPA s.2 continued

(d) the provision for that person of facilities for, or assistance in, travelling to and from his home for the purpose of participating in any services ……

(e) the provision of assistance for that person in arranging for the carrying out of any works of adaptation in his home or the provision of any additional facilities designed to secure his greater safety, comfort or convenience.

…then ….. it shall be the duty of that authority

to make those arrangements in exercise of the functions under the section 29


The Mental Health Act 1983

Most accommodation provided by social services departments to people with mental health difficulties is provided under Section 21 National Assistance Act 1948.

For a minority of people with mental health difficulties,

services (including accommodation) should be provided pursuant to section 117 Mental Health Act 1983 (for those who have been sectioned under a treatment section)

There are three distinct advantages for the service

user. - Services are virtually unlimited. - There is no power to charge for such services - Services must continue until both the health

authority or body and the social services authority agree that there is no need for such services.


S.117 MHA 1983

The duty to provide s. 117 MHA 83 services is a duty jointly on the health and social services authority

Section 117 services are ‘after care services’ that

should be put in place on discharge from hospital (for those who are eligible).

Those entitled to the provision of s117 MHA

83 services are those who were previously detained under Sections 3, 37, 45A, 47 or 48 of the MHA 83.


Homelessness

Overlap between Part 7 Housing Act 1996 and community care provision Structural links s.47 NHSCCA and s.213 homelessness legislation

People with mental health problems who are homeless or

in housing which does not meet their needs will also come within the provisions of Housing Act 1996 Part VII .

This places a duty on local housing authorities to

secure that suitable accommodation is made available for a person who is homeless, in priority need and who did not become homeless intentionally.

A person is homeless if s/he has no accommodation, which it

would be reasonable for him or her to continue to occupy s175(3)HA1996.


Priority Need

There is no general obligation on local housing authorities to house everyone who is homeless.

The Housing Act places a duty on housing authorities to provide only for certain categories of people.

Which of these people has a priority need for accommodation under s.189(1) Housing Act (1996):

(a) a pregnant women or a person with whom she resides or might reasonably be expected to reside;

(b) a person with whom a dependant child resides or might reasonably be expected to reside;

(c) a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom a person resides or might reasonably be expected to reside;

(d) a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.


Priority Need

The Secretary of State extended the classes of persons in priority need in The Homelessness (Priority Need For Accommodation) (England) Order 2002:

1. Persons aged 16 or 17 who is not a relevant child2. Care leavers aged 18 to 21, plus three other groups who

have lived away from home3. Persons who are vulnerable as a result of being looked

after, accommodated or fostered by a local authority or health authority.

4. A person who is vulnerable as result of having been a member of the armed forces

5. A person who is vulnerable as a result of serving a custodial sentence.

6. A person who is vulnerable as a result of having ceased to occupy accommodation, by reason of violence or threats of violence which are likely to be carried out.


The Test of Vulnerability – Pereira Case

The test of vulnerability is set out in the case of R V Camden ex parte Pereira (1998) 30 HLR 317 CA as whether the applicant

“would be less able to fend for himself so that injury or detriment would result where a less vulnerable person would be able to cope without harmful effects (when street homeless)”.

Code of Guidance at paragraph 8.15 also states: - that regard should be had to medical advice and that social

services advice should be sought but that the final decision on the question of vulnerability will rest with the local authority.- Housing authority should take into account the nature and extent of the illness or disability and the relationship between the illness and the disability and the individual’s housing difficulties.


Additional elements of composite assessment

• An element of the assessment but not the determinant test can be the applicant’s ability to obtain and hold on to accommodation.

• Therefore housing history can be a contributory element

• Any particular or special housing needs may be an element

• Whilst a support package is not technically an element of the assessment HPO’s are greatly re-assured by such provision


The assessment of vulnerability

Housing officers must seek the views of relevant professionals

Key issue for relevant professionals is to give their professional opinion on the impact street homelessness would have on their client

Then for housing officer to assess whether this would amount to injury or detriment that the “average” homeless person would suffer

Courts presume that HPO’s sufficiently experienced to conceptualise “average homeless person”


Key issues on vulnerability

Dependency Courts sympathetic to those who have been through

detox and rehab and committed to staying clean If an applicant is heroin dependent and has no

commitment to addressing this then the courts cannot see the relevance of housing to remedy the vulnerability

Crossley v Westminster landmark case – 1st time the courts have seen those who want to tackle their dependency as vulnerable.

Therefore evidence of engagement and commitment can be key factors


Mental health issues + vulnerability

Hall v Wandsworth – decision quashed LA had applied the wrong test

Carter v Wandsworth – decision quashed, LA had preferred the view of their own medical expert rather than the GP with NO apparent good reason

Tetteh v LB Kingston – LA do not have to spell out the characteristics of the “average” HP. LA had not even interviewed applicant who applied from prison


Requesting a Community Care Assessment If you feel a person may be in need of community

care services, you can request an assessment to: Evidence Vulnerability Support evidence when challenging suitability

of accommodation. To establish whether a person is homeless. In issues of intentionality. If it appears that the

person has a learning difficulty or a mental health problem then an assessment could establish that the person was not able to commit a “deliberate act or omission” for the purposes of s191 Housing Act 1996.


Housing Difficulties and Community Care Services

Tenants with mental health difficulties are sometimes on the receiving end of possession proceedings relating to:

- Rent arrears - Nuisance

Two possible bases for defence (which relate to the clients mental health status) could be.

- Failure to assess- Disability discrimination


Failure to assess

Local authority For local authority tenants a community care assessment under

s47 National Health Service and Community Care Act 1990 does not have to be requested.

Housing Association For Housing Association tenants it would not be possible to

argue that the landlord was in breach of the duty to assess. However the Housing Corporations Performance

Standards require Housing Associations to liase with local authority social services if it appears that a tenant requires support.

Private sector If the client is an assured tenant in the private sector and

proceedings are brought on a discretionary ground, the proceedings can still be defended on the basis that it would not be reasonable to make an order.

Documents

Homelessness Multiple Needs and the Law John Macklin