care home or exempt accommodation

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  • #39866
    Anonymous
    Guest

    Good afternoon Comrades,

    i have a very interesting case (said with a slight Ukranian accent)

    we have recieved a claim form from a claimant whose landlord is a care home. however they state that the claimant is not in residential care but is occupying the property under supported living services. we have received a tenancy agreement between a private landlord, the care home and a care company who are all involved in this “agreement” – now aside from the obvious manipulation of the system by private companies,which seems like it is a case for a panorama documentary, the care home is stating that it can retain its status as a care home and yet be the landlord of this claimant and HB is payable, as the customer is not in residential care. it seems as if the care home is somehow circumventing the law by likening itself to a landlord being covered by by the rules governing exempt accommodation. the care home is also quoting, Moore & Ors V Standard Tribunal 2005, where it was stated that a care home could still be considered as a care home, even though they had converted their accommodation for the purposes of supported living services.

    has anyone had any similar cases ? because i have a feeling, based on their arguments, that HB may be payable in this case.

    many thanks

    #113723
    Kevin D
    Participant

    I haven’t seen “Moore” (this needs to be at Cmmrs / High Court or higher to be of any binding legal effect – a “lower Tribunal” decision is not binding). However, the phrase [b]”…it was stated that a care home could still be considered as a care home, even though they had converted their accommodation for the purposes of supported living services[/b]” seems to indicate it was still a “care home”.

    So long as it remains a “care home”, it’s nil HB – HBR 9(1)(k) in conjunction with HBR 9(4)(a).

    However, is it being argued that the “dwelling” occupied by the individual claimant is not part of the “care home” regime covering other tenants in other “dwellings”? In my view, that would require that person’s dwelling to be expressly not registered as a care home in order to bypass HBR 9(1)(k).

    Probably more investigation will be needed. There is some case law on this that may or may not be relevant – CH/1326/2004 and CH/1204/2003.

    Depending on the outcome of any investigation, it may be worth considering making a decision along the lines of nil HB under HBR 9(1)(k) or, in the alternative, “taking advantage” under HBR 9(1)(l).

    #113725
    Anonymous
    Guest

    Hi Kevin,

    thanks for that – it seems that the Care Home is hanging its hat on this judgement to say that it can have its cake and eat it i.e remain a care home, but access the benefit system, by being a landlord who supplies supported living services. i agree that it seems to be established to take advantage of the benefit system and will need to be argued out at a tribunal and maybe beyond

    #113729
    Kevin D
    Participant

    If it is definitely a care home, HBR 9(1)(k) is absolute. I certainly wouldn’t rely on “contrived” alone; that would be in the alternative.

    In a submission to a FtT, subject to other info / evidence that may come to light, I’d be inclined to keep it really simple. Stick to the known facts and how the legislation results in nil HB. If appropriate, emphasise the LL doesn’t appear to be arguing against the “care home” status of the claimant’s dwelling. Further, acknowledge the case cited by the LL but simply respond to it along the lines of “…however, so far as the Council can see, this doesn’t alter the fact that the dwelling occupied by the claimant is a care home in any case…”.

    #113730
    Anonymous
    Guest

    thanks for that Kevin, that is a lot of help

    #113790
    Anonymous
    Guest

    What is a care home??? In our area they seem to convert overnight to supported living accommodation and the residents claim HB, seemingly under the same terms and conditions as they were before. I have trawled the net far and wide but can’t come up with a definitive answer. At the end of the day the public are paying regardless of what pot it comes from so why do I need to worry?

    #113795
    Kevin D
    Participant

    A care home is one that is registered.

    #113797
    Anonymous
    Guest

    Yes, but what triggers registration? If the sky is blue but I say it is black am I right just because I haven’t registered to express my opinion. Seriously, from what I’ve read registration seems to be a choice in the same way that we can choose to refer RSL rents to the RO. It’s not mandatory but if you do certain consequences will flow

    #113802
    keithh
    Participant

    Hi Chris,

    Whether a care home is registered or not is not relevant. If you trace back from reg 2 it leads you to the defintion of a care home in section 3 of the Care Standards Act 2000 which talks about the function of the accommodation as opposed to it’s registered status.

    We have had one care home successfully transform it’s service but another one seemed to just deregister and leave everything as it was!

    Cheers, Keith

    #113806
    Anonymous
    Guest

    hi Keith,

    did you pay hb when the care home transformed its service

    #113807
    keithh
    Participant

    Hi,

    Yes, they had undergone structural alterations and it had changed to a model far closer to warden controlled supported accommodation.

    The other place ended up with countless complaints about how wrong it was that we couldn’t pay!!

    #113809
    Anonymous
    Guest

    cool – this isnt even residential, the customer has been placed there by another council- i think the description of what they are doing with the landlord and the care company could mean that we could pay – i will investigate further

    #113814
    Anonymous
    Guest

    Here are links to the Moore decisions in the High Court and then the Court of Appeal. I don’t see how the decision is of any help to the landlord in Sean’s case at all.

    http://www.bailii.org/ew/cases/EWHC/Admin/2004/2481.html
    http://www.bailii.org/ew/cases/EWCA/Civ/2005/627.html

    In Moore, the people running the home were seeking to have it deregistered on the basis that service users were issued with tenancy agreements, which gave them exclusive possession of a separate dwelling. This, in their view, meant that they were no longer running an “establishment” for the purposes of s3. The appeal was rejected – in practice the home was clearly being run as an establishment despite the legal figleaf of the separate tenancy agreements. So really Moore says the opposite of what the owner of the home in Sean’s case is saying.

    Interestingly the appellants did not rely on the legal separation of the care and accommodation functions so that the landlord and care provider were two different companies – they accepted in principle that they were running the establishment together. There is more discussion of connected companies in CH/3452/2005, which only came out this year despite the vintage reference number. It’s on this site.

    A couple of wider points about s3 and deregistration:

    An HBINFO member called Fred Grand has in the past explained on this forum that it ought to be impossible to achieve a situation in which a care home satisfies the s3 definition but is legitimately not registered – it can only happen if the owners are dodging registration, which is an offence. So really it is not a decision that HB sections should have to make – if the home is not registered, that normally means it is not a care home. It’s not really an HB function to make a s3 decision.

    Secondly, there is nothing contrived or suspicious about deregistration in itself. Provided the separation of the care and accommodation functions is genuine, deregistration is the preferred model for a lot of clients – especially working age people with learning disabilities. It is a better model from the point of view of both commissioning teams and clients – most obviously in the way they retain more disposable income including premiums, instead of care home pocket money. The 2001 white paper “Valuing People” encourages this model. Again, search for Fred Grand and you will find some helpful comments on this forum.

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