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When Valuing People was published in 2001 it was hailed as a breakthrough for the rights of people with learning difficulties. The values underpinning the government white paper - civil rights, independence, choice and inclusion - were particularly pertinent to housing.

But, according to some, these principles could be compromised by misunderstandings over the issues of registration, personal care and capacity. The confusion started when hundreds of residential homes were permitted to "de-register" under the Registered Homes Act 1984 by their local authority registration and inspection units to provide other forms of accommodation.

Among charities de-registering homes was Alternative Futures, a north west England provider which runs residential homes for people with learning difficulties. In May 2001, it consulted on plans to to de-register its homes and establish supported tenancies in their place, allowing residents greater independence and access to housing benefit.

Three local inspection units consented to the change for the homes under their jurisdiction, but three other applications were refused. Days later the National Care Standards Commission superseded local inspection units, and it emerged that voluntary "de-registration" had never been legal under the Registered Homes Act.

The NCSC told Alternative Futures that a registered home owner could now apply for their registration to be cancelled under the Care Standards Act 2000, which had replaced the Registered Homes Act. The charity applied, but was refused. This decision was taken, says the NCSC, because it believed that "accommodation and nursing or personal care" were being provided and the service was continuing to operate as a care home.

Alternative Futures is appealing to the independent review body, the Care Standards Tribunal against the decision. But the charity's managing director, Steve Cullen, is worried about the effect on users if the appeal fails.

Supported tenancies had already been set up in the three refused areas because they were expecting the go-ahead. So users who have already been tenants for a year face seeing their home return to a residential care setting, Cullen says.

Heather Wing, NCSC director of adult services, says: "We inherited the situation, we didn't make it. Just because someone puts in an application, it doesn't mean we will grant it. Our main purpose is to ensure people are protected and not exploited.

"Since April, the NCSC has agreed to many registered persons' applications for cancellation of their registration to become involved in offering supported accommodation [including several from Alternative Futures] and this emphasises that we are fully backing the supported accommodation policy. There is anecdotal evidence that many of the 897 voluntary cancellations in adult services have been those moving into supporting people arrangements."

The NCSC appreciates that some residential home owners could be tempted to apply to cancel their registration to avoid complying with prescriptive national minimum standards brought in under the Care Standards Act - although the government has just backed down on some.

But what constitutes residential care? The Care Standards Act specifies it as an "establishment" providing accommodation together with nursing or personal care for certain categories of people.

And what is personal care? According to government guidance, it must include assistance with bodily functions such as feeding and bathing if required. So, if the home and care come as one package and the individual has no choice about from whom they receive their care, it is more likely to be considered residential care, says Gill Parsons, project officer for the regulation of care services award at the University of Wales Institute Cardiff. "The personal care definition is somewhat vague and the concept has been fraught for years," she says.

The NCSC must decide whether there are legitimate grounds for a home owner cancelling their registration to move into another form of housing provision which may be less strictly regulated than residential care. "Our primary duty is to protect people through regulation," says Wing.

In the case of supported living schemes - often a preferred choice for people with learning difficulties - they need only register with the NCSC as a domiciliary care agency if they are providing personal care to the tenant. If the supported living scheme brings in care from an outside organisation, it is this body that must register as a domiciliary care agency. But neither the accommodation nor the tenancies are regulated because they are private residencies.

And herein lies a further confusion around registration: what is supported living? Although the term is used several times in Valuing People, there is still uncertainty about what it means. In a paper on implementing the white paper at a local level, the late Ken Simons at the Norah Fry Research Centre said: "In at least one instance it is used as a synonym for all forms of supported housing including residential care."

He added that it should mean enabling people with learning difficulties to live in their own homes through opening up a range of housing options including outright or shared ownership. He cited supported tenancies as an example. Even Wing admits it is a "very complex area".

Money is another key factor. Care home residents are not entitled to housing benefit and have little disposable income. But a tenant in supported housing is entitled to income support and can claim housing benefit to help pay their rent.

In the run-up to Supporting People, the government's programme of transferring responsibility for housing-related support for vulnerable groups to local authorities, eligible users are entitled to transitional housing benefit. This is paid by the housing benefit agency to safeguard providers who are supporting vulnerable people in the community until the new system starts in April. It allowed a year for each local authority to establish exactly what housing-related support costs there are in local services to help estimate the total future pot of money that each council would need for its final Supporting People grant.


A government consultation paper on the issue says: "Government policy would support changes to care homes and their replacement with unregistered provision in cases where assessments/care plans of the individuals in the scheme lead to changes that might promote greater independence."¹

But it adds: "Government policy would not support inappropriate changes to care homes which seek primarily to secure funding through transitional housing benefit and Supporting People. Such changes risk removing necessary protection from vulnerable people and may be unlawful. They also risk future disruption to funding if the NCSC later decides that registration as a care home is required."

After April, the Supporting People budget closes. Any home owner that has not had the cancellation of their registration agreed by then will have little chance of accessing Supporting People money, and the impact could be to reduce users' choice.

With learning difficulties ranging from mild to severe, mental capacity is another consideration for the NCSC in granting a supported tenancy. Where it is clear that users lack capacity to understand a supported tenancy, the NCSC will ask the service provider to show that advocates had been involved in preparing users for change and establishing that this is what they want.

Rob Greig, director of implementation for Valuing People, says: "There is a greater need for clarity about capacity and we are working with the NCSC to achieve this. People must have choice but they have to be able to participate in that choice. The issue is who takes the decision about whether someone has the capacity to consent to a tenancy agreement. Is the NCSC appropriate? It would seem that care managers and others who know the person well and worked with them over a period of time are more appropriate.

"A tenancy agreement means taking on obligations. There needs to be creativity in understanding the different ways that people can give consent."

Parsons agrees: "A lot of these issues are clouded by whether people can express their rights. If you have properly funded and resourced advocacy services you can go some way towards ensuring that people's rights can be expressed and verified."

Those in favour of supported tenancies say they give people with learning difficulties ownership and security, allowing them the independence that they cannot have in a residential home.

Parsons adds: "There will be statements that users will be better off because of a higher level of disposable income and I accept that is an argument, but the rationale for making these decisions needs to be carefully thought out.

"There's an important place for supported accommodation, but what concerns me is where it's in order to avoid the constraints of the Care Standards Act. I'm not saying they are all doing this, but a lot of people are perceiving it in that way."

¹ For more information on Residential Care, Housing, Care and Support Schemes and Supporting People go to www.doh.gov.uk/housingcareconsultation/index.htm

Conflict of definition in scotland  

In Scotland the Regulation of Care (Scotland) Act 2001 and Supporting People introduced a conflict of definition over what constitutes a personal care home and what constitutes supported accommodation, says Austen Smyth, lead officer of Supporting People at Fife Council. 

The trend across Scotland has been to develop unregistered council-run or commissioned group homes allowing people with learning difficulties to have a tenancy. The concern was that the Scottish Commission for the Regulation of Care would decide that group homes were residential homes.  

Smyth says: "We argued strongly that they are their ordinary homes and that these people with learning difficulties are able to access their income support and other benefits and have a good inclusive lifestyle as a result of that." 

Ministers have now accepted that the homes are a form of supported living and it has been decided that the group homes can remain unregistered.  

The commission will be able to inspect them as housing support services or care at home but without cutting off tenants' funding stream or confining them to residential care, says Smyth. 

Additionally, the commission has agreed to process all requests to cancel registration from the public, voluntary and private sector. This is intended to ensure that decisions are made in time to allow services that are properly defined as housing support services rather than a care home to be counted in the resources required for the Supporting People fund.  

Smyth says: "We feel we have won an important victory in Scotland."

Care standards

The National Care Standards Commission was introduced by the Care Standards Act 2000 and has responsibility for regulation of residential care, nursing homes, adult placement and domiciliary care. Equivalent bodies have also been set up in Wales (the Care Standards Inspectorate for Wales) and Scotland (the Scottish Commission for the Regulation of Care).