Brother wants to move to a new supported house but is beingstopped

[devansonline]

My brother is very unhappy in his home (supported living) he lives in. He moved out of the family home about 5 years ago. My sister and I both live miles away and mum has now gone into a nursing home. We have found a much better home for him. It is still supported living but is in a neighbouring council area. He really likes it but he is not being allowed to move. I can’t understand why social services (or whoever) are being so obstructive and want to know what my brother’s rights are. Can you help?

[margaret.gould]

Hi there,

I’m one of the Mencap information and advice officers and from time to time we hear from families going through a similar experience. I’m sorry to hear that your brother is unhappy in his current home.

Local authorities must follow a given process which is the legal framework set out in the Care Act 2014 for a person who has eligible support needs. The bottom line is your brother’s latest assessment of his needs and how any eligible needs may be met, so this is a good starting point with his social worker. The local authorities will look at where your brother is ‘ordinarily resident’ when they work out which of them has responsibility to fund his social care support.

It’s a good idea to clearly state your brother’s case to both local authorities and the reasons for his wish to move. It’s always good to do this in writing so that you have a paper trail of documented records of correspondence.

You also need to be sure that your brother has the mental capacity to make this decision to move – ie. is he going there voluntarily. There is more information about people’s rights and decision making here: https://www.mencap.org.uk/advice-and-support/mental-capacity-act

The statutory guidance for the Care Act is on this link: https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance

In particular the issue of inter-authority moves and continuity of care is addressed in chapters 19 and 20. It’s good to be familiar with the duties of the local authority so that you can see the procedures they should be following. The local authority will have discretionary powers in exceptional cases.

19.2 Whether the person is ‘ordinarily resident’ in the area of the local authority is a key test in determining where responsibilities lie between local authorities for the funding and provision of care and support.

19.11 The determination of ordinary residence must not delay the process of meeting needs. In cases where ordinary residence is not certain, the local authority should meet the individual’s needs first, and then resolve the question of ordinary residence subsequently.

19.15 (For a person who has capacity) Local authorities should in particular apply the principle that ordinary residence is the place the person has voluntarily adopted for a settled purpose, whether for a short or long duration. Ordinary residence can be acquired as soon as the person moves to an area, if their move is voluntary and for settled purposes, irrespective of whether they own, or have an interest in a property in another local authority area. There is no minimum period in which a person has to be living in a particular place for them to be considered ordinarily resident there, because it depends on the nature and quality of the connection with the new place.

20.1 People with care and support needs may decide to move home just like anyone else, such as to be closer to family or to pursue education or employment opportunities, or because they want to live in another area. Where they do decide to move to a new area and as a result their ordinary residence status changes (see chapter 19 on ordinary residence), it is important to ensure that care and support is in place during the move, so the person’s wellbeing is maintained.

20.2 Where the person chooses to live in a different local authority area, the local authority that is currently arranging care and support and the authority to which they are moving must work together to ensure that there is no interruption to the person’s care and support.
20.4 The aim of this process is to ensure that the person with care and support needs will be able to move with the confidence that arrangements to meet their needs will be in place on the day of the move. Local authorities are expected to achieve continuity of care by ensuring that the second authority has completed a needs assessment and developed a care and support plan for the individual prior to the day of the move. It is possible that the second local authority might be unable to complete a needs assessment prior to the day of the move due to the logistics of assessing a person a long distance away or because they want to assess the adult in their new home. If the second authority has not carried out the assessment prior to the move, it must continue to meet the needs and take into account outcomes identified in the adult’s current care and support plan until it has carried out its own assessment.
20.5 The key to ensuring that the adult’s care is continued is through both local authorities working together and that the adult and their carer, if they are continuing to care for the adult, are at the centre of the process.

I hope that sets out more clearly what your brother’s rights are and I hope that he can be supported to move to a place where he will be happier.

Best wishes,
Margaret

[Ang1e]

Hello Margaret,

I hope devansonline doesn’t mind me jumping into this thread and asking a question of my own.

I have been reading your response to the original question which is of interest as our family have recently begun the process of moving my brother from London to a new care facility nearer to family in the West Sussex/Surrey area. He currently lives full-time in a residential care home where his needs are not being met.

Having benefitted from an inheritance my brother is presently self-funding until his funds fall below the threshold. He has severe learning disabilities and lacks mental capacity. Our father holds the deputyship for his Finance and Assets but not his Care and Welfare.

We asked my brothers’ allocated worker (at social services) 2 weeks ago to inform us of the process we need to follow to facilitate the move. At the same time we raised the issue of a local authority assessment, and asked if she can facilitate this. We are still awaiting her response. In the meantime we have heard from her relating to a question on any residential contract that might be in place.

The new care service carried out a suitability assessment with my brother and his key worker at the care home yesterday. We hope to hear the results next week.

My question relates to the local authorities legal framework set out in the Care Act 2014, and the issue of inter-authority moves.

If my brother is self-funding, does his proposed new local authority have to carry out a needs assessment?

How does continuity of care work in a self-funding case?

What happens regarding his health care needs, eg. GP and hospital care?

Thank you for any information you can provide.

With kind regards,

Ang1e

[margaret.gould]

Hi Ang1e,

I can see that this is quite complicated and you may need to consider your brother’s circumstances in a bit more detail. It’s about applying his case and unpicking the detail of the Care Act statutory guidance which you can find here: https://www.gov.uk/government/publications/care-act-statutory-guidance/care-and-support-statutory-guidance

For example, section 9 states:
9 Assessment of an adult’s needs for care and support
(1)Where it appears to a local authority that an adult may have needs for care and support, the authority must assess—
(a)whether the adult does have needs for care and support, and
(b)if the adult does, what those needs are.
(2)An assessment under subsection (1) is referred to in this Part as a “needs assessment”.
(3)The duty to carry out a needs assessment applies regardless of the authority’s view of—
(a)the level of the adult’s needs for care and support, or
(b)the level of the adult’s financial resources.

However, the question is at what point might self-funders be in need of care and support from a LA and the ordinary continuity of care guidance as set out in chapter 20 may not apply to your brother.

People who arrange and fund their own care:
19.75 People who self-fund and arrange their own care (self funders) and who choose to move to another area and then find that their funds have depleted can apply to the local authority area that they have moved to in order to have their needs assessed. If it is decided that they have eligible needs for care and support, the person’s ordinary residence will be in the place where they moved to and not the first authority (for further information on self-funders, see annex H4, paras. 21-23).
See also annex H in the statutory guidance - People who have sufficient funds to pay for their own care and accommodation (it has some case studies too):
21) When a person moves into permanent accommodation in a new local authority area under private arrangements, and is paying for their own care, they usually acquire an ordinary residence in this new area. If so, and if their needs subsequently change, meaning that they require other types of care and support, (or if their financial circumstances change so that they would not have to pay for all of the costs of their care and support, if their needs were met by a local authority) they may approach the local authority in which their accommodation is situated. That local authority will be responsible for assessing whether it should meet their needs. The person will be ordinarily resident in the local authority area where the person’s care home is situated.

I hope that helps a bit and I hope that your brother’s move goes as smoothly as possible and that he is happy in his new home. Don’t forget you can call the Mencap learning disability helpline on 0808 808 1111 if you need more in depth advice and information.

Margaret