Unwise choices or uninformed decisions regarding housing options? The duty to make enquires and the implied duty to support decision making before reaching conclusions
By Bruno Ornelas, Head of Service, VOICES
Belinda Schweh, Chief Executive, CASCAIDr
and Geoff Davies, Specialist Housing Advisor, Stoke North and Staffordshire Citizens Advice Bureau
This article explores the depth to which professionals, who work with people that are street homeless, need to be prepared to exercise their professional judgement in ways which incorporates relevant laws, ethics and rights based-thinking. A good starting point is knowing what the legal rules are, together with clarity about the rules so that practitioners feel well-equipped to apply the scope of different (sometimes overlapping) legal frameworks to particular cases. However, practitioners should also be mindful that reliance on the more procedural aspects of the law alone may not be enough, and should endeavour to interpret and apply the legal rules in ways that are underpinned by human rights principles and professional ethics. Awareness of how
the courts and/or the Local Government Ombudsman have interpreted specific cases can give practitioners a critical understanding for what direction to pursue their advocacy.
Pressures on local authority homelessness services can mean that homelessness applicants are not always interviewed at the earliest opportunity in order to determine what, if any, duties are owed by the authority. This is particularly problematic for applicants who are street homeless and who may be in priority need, as any delay in an assessment of their circumstances can mean that they miss out on the provision of interim accommodation pending a final decision by the local authority. Likewise, information is not always given to the applicant to help them make a considered and informed choice.
The duty to make enquiries arises if the authority receives an application for accommodation, or for assistance in obtaining accommodation, and the authority has reason to believe that an applicant is homeless or threatened with homelessness. In addition, a local authority must provide interim accommodation while it makes enquiries if it has reason to believe that the applicant may be eligible, homeless and priority need. The Homelessness Code of Guidance at paragraph 15.5 stresses that the starting point for triggering the interim accommodation duty is very low as the housing authority only has to have reason to believe rather than being satisfied that the applicant is eligible, homeless and in priority need. That’s a low threshold, in legal terms, not requiring much more than a coherent assertion of some basic facts. Where such an application is made the authority must make such enquiries as are necessary to satisfy themselves whether the person is eligible for assistance, and if so, whether any duty is owed to the applicant (s.184(1), Housing Act 1996). Perhaps, somewhat surprisingly, there is no statutory requirement that enquiries be carried out within any specific time for street homeless applicants.
The case study below concerns a complaint by a street homeless person (Mr B) against Westminster City Council to the Local Government Ombudsman (LGO). The LGO’s report provides a clear example of where a local authority unreasonably delayed in providing a street homeless applicant with assistance on two separate occasions. The council was also criticised for not communicating with the applicant clearly and for not setting out his options so that he could make an informed decision, yet the council had deemed the complainant as someone who had decided on matters relating to his housing. This last finding is explored under supporting informed decision making, which includes some practical suggestions derived from mental capacity law for practitioners to consider when supporting a person to make an informed decision.
Amongst the recommendations made by the Ombudsman in the case study, is the importance of providing people with the necessary and correct information to help them make informed decisions. The Ombudsman had found that Westminster Council did not communicate clearly enough with Mr B and therefore he could not be deemed as making an informed decision regarding his housing options.
Case Study: The duty to make enquiries
Findings from the LGSCO, Westminster City Council [19 003 747]
Mr B complained about the way Westminster City Council (the Council) dealt with his homelessness case. Readers may well recognise the issues of delay and people being passed from pillar to post. These issues are commonplace, and regarded as inevitable by most councils, these days.
Mr B became homeless in May 2018 after injuring himself and losing his job. He completed an online assessment on the Council’s website in mid-September 2018 and he was phoned on 13 September 2018. Mr B said he had been sleeping rough for 12 weeks, after losing his job and home. The officer referred the case to the partner agency (the Housing Solutions Team) as it was probable that Mr B was eligible and homeless. On 8 October 2018 someone contacted Mr B by telephone to arrange an initial assessment. Mr B declined as he was by then working and could not take time off. He did not want an initial assessment and said he would continue working with a different organisation that helped rough sleepers to find accommodation, unless he needed help in the future.
Mr B’s recollection was different to the council’s. He said that when he first approached the Council in September 2018 he asked to apply ‘for housing’ and also said he was ‘homeless’. He says he completed a housing register application form. He said the receptionist dealt with him and he was not interviewed. When he received a telephone call he said he asked what he should do but the person did not say to come in for an assessment. He said he was placed in a shelter for 8 weeks by a different organisation. He was then back on the streets until April 2019 when he went back to the council’s partner agency.
The Council had no more records until 12 April 2019 when Mr B re-approached the partner agency as a rough sleeper. He had been sleeping in a hostel for some of the time. He explained again how he had become homeless, that he was in receipt of benefits and was a UK citizen. He also said he had medical problems and provided some evidence of this. The record says that the person who interviewed Mr B spoke to another member of staff and they said there was not enough evidence to say he was in priority need.
The ombudsman found as follows:
Between first contact when he was actually homeless, and first action, there were 3 weeks, and that was too long. The Council should have carried out an assessment of Mr B’s situation much sooner, considered whether he was eligible for interim accommodation and whether it owed him any further duties. Mr B believed he had filled in a housing application but the Council’s records did not support this. Mr B said he requested further help but the Council said he declined assistance as he was in a hostel. The Council should have communicated much more clearly with Mr B as to what his options were.
The record of 13 September 2018 noted he was street homeless but did not consider whether he might be eligible for interim accommodation or explain what the process was. The note on 8 October 2018 confirmed he was in a hostel and therefore likely to be homeless but no further advice was given. There was an insoluble conflict of evidence, as to whether Mr B declined any further assistance but the LGO thought it was not clear that Mr B was able to make an informed decision at that point.
Mr B approached the partner organisation for help on 12 April 2019, but he was not interviewed until 13 May 2019. This was too long. The Council may well have been very busy, but over four weeks was too long for a street homeless person to wait for further assistance.
There was no indication what the council then considered or whether it asked Mr B for any more information. When Mr B was interviewed, he provided information crucial to the decision on priority need that he was possibly at risk of violence on the streets. So, it was likely that if he had been interviewed sooner, he would have been offered interim accommodation at an earlier point, the LGO thought.
In recognition of the delays in dealing with Mr B’s case, which unnecessarily prolonged the process of him obtaining interim accommodation by approximately a month to six weeks, the Council was advised to pay Mr B £300 and review its procedures to ensure all street homeless applicants are interviewed promptly and that decisions about interim accommodation are made much more quickly.
Considerations for practice – supporting people to make informed decisions
This next section will explore how information together with clarity about the legal rules can support decision-making, an aspect of civil society and citizenship which Mr B was denied, according to the Ombudsman. Much can be derived from Mental Capacity law as a means of understanding how information supports choice and what information is needed, given that the person needs to weigh the likely outcomes against what is important to them, to come to an overall decision that may well have legal consequences.
Mental Capacity law assumes competency, in that adults are assumed to have mental capacity to make their own decisions, unless the contrary is established, and it also accepts that there may be circumstances when people lose, in full or in part, their ability to be capacitated persons. Public services are required to exercise their functions on this footing, and the contrary can only be regarded as established if a person fails one of 4 tests. The first test is about being able to absorb and retain relevant information – for which a person will often be reliant on the public officer’s knowledge and integrity, patience and communication skills.
Illiteracy of the law is no defence, in much of our legal system, but welfare law does not permit people to be assumed to know their legal rights and entitlements – even in areas where there is no specific duty to inform. The Ombudsman here is not suggesting that Mr B lacked mental capacity; rather, the investigator is applying the well-established principle that before a public body comes to a conclusion contrary to the interests of a person, that person is given a fair chance to address the public body’s perception of the situation. So if a decision to refuse accommodation is what a conversation sounds like, then there is an implied duty to explain the consequences of that and to check out the intent of the person in question. The person’s mental capacity is not doubted by respectfully checking out that the person understands their rights and the consequences of a decision one way or another.
Supporting a person’s decision is not about making the decision for them, but ensuring that they grasp that there are consequences that will follow on. This will require practitioners to engage their concerned curiosity in order to understand the person’s individual circumstances, and ascertain what elements of choice-making the person may need help with and why.
Chapter 3 of the Mental Capacity Act Code of Practice suggests a variety of ways in which practitioners can support people to make decisions. This consists of helping people who may be struggling with their memory or who have communication difficulties, for example checking they know, or going over, the features of the choice needed, and then letting them have time to weigh up those features relevant to a decision. Formal incapacity recording does not turn on being able to weigh up risk. It turns on weighing up foreseeable consequences. This is particularly important given the high prevalence rates of brain injury, learning difficulties and cognitive impairments amongst people who are street homeless.
In Mr B’s case it was not suggested that he lacked mental capacity, but he did not have the necessary information to weigh up the consequences of his decision and what this would then mean to him in housing terms. In other words, he was not able to make an informed decision, as the Ombudsman had found.
Mental Capacity law is not only about distinguishing incapacitated choices from valid but unwise ones, but provides a way of thinking about the process of decision-making which can be applied to every-day practice. It is well documented, although seldom understood, that people who are rough sleeping are frequently in risky and distressing situations, but may be more fearful of alternatives. As such, practitioners should take a tailored approach to understanding each person’s unique circumstances and the wide range of factors that can have an impact on a person’s ability to make a decision, in particular how they may interpret information in the context of their lived experience and present circumstances. This can include:
- The effects of drug (prescribed or not) and alcohol dependency
- Cognitive dysfunction (sometimes hidden or disguised which may present as challenging behaviours)
- The individual’s awareness of their ability to make decisions, including the person’s previous experiences of institutions, or general lack of experience in making decisions about their welfare.
- Self-stigma, low self-esteem or disregard for their own wellbeing.
- The person’s physical and mental health condition
- The person’s communication needs, including level of literacy.
- The involvement of others (sometimes associates acquired through street living) and being aware of the possibility that the person may be subject to undue influence, duress or coercion regarding the decision
- Social and economic factors linked to poverty and meeting basic needs
Practitioners should find ways to support the individual person’s choice-making and seek to understand how the person makes sense of the information presented to them. For example, this can be done by making use of the knowledge you have about the individual’s life course alongside a personalised understanding of the factors which support, or hinder, the way in which the person makes decisions. Supporting an individual to make a decision is not the same as making a decision for them: practice guidance from NICE suggests that practitioners should:
- Determine what information they need to convey to cover the salient details of the decision they are supporting the person to make. This will depend on the nature and complexity of the decision itself.
- Offer tailored, accessible information to the person being supported. This should be about the process and principles of supported decision-making as well as about the specific decision.
- Support them to identify, express and document their own communication needs
- Ensure that options are presented in a balanced and non-leading way
- Record the information that is given to the person during decision-making. Give the person an opportunity to review and comment on what is recorded and write down their views.
It is not uncommon for people who are street homeless to be perceived as making “lifestyle choices” or deemed to have actively declined offers of help and support, even though they may never have had the correct information to begin with. Perhaps unknowingly, practitioners may utilize mental capacity law terms to articulate a person’s situation. For example, this may often come under the guise of “unwise choice” when the reality could better be described as an “uninformed choice”. Knowing the difference between a person’s unwise but firm choices and decisions which are misinformed is critical, as this avoids the pitfalls of potentially lengthy and costly legal disputes and drawn out complaints.
It cannot be determined what decision Mr B would have made had he been given the necessary information, or how he would have made sense of that information given his circumstances. However, practitioners need to equip themselves with the relevant material and be able to adjust their ways of communicating and when presenting information, so that it’s appropriate and proportionate to the person’s needs and circumstances.
In a previous article about ending interim accommodation, we wrote about the importance of knowing the legal rules and how those rules can be applied in practice. Likewise, through this piece our intention is to support practitioners to work with the rules and available guidance in ways that are inclusive of people’s unique situations and abilities.
About the authors
Bruno Ornelas is the Head of Service and Safeguarding at VOICES and holds a Masters in Safeguarding Adults Law and Policy from Keele University. Bruno recently collaborated on research that looked at safeguarding adult reviews where rough sleeping was a contributing factor.
Belinda Schwehr is Chief Executive of legal advice charity CASCAIDr (www.CASCAIDr.org.uk) and owner of consultancy Care and Health Law. She has been a Barrister, Solicitor, Advocate, Presenter, Writer and University Law Lecturer.
Geoff Davies works at SNSCAB (http://www.snscab.org.uk/) as a Housing Advisor. Geoff is also VOICES’s in-house housing expert and provides training to VOICES staff and partners, as well as housing advocacy for people experiencing multiple exclusion homelessness.