COVID-19: Ending the Interim Accommodation Duty and Mental Capacity
Bruno Ornelas (Head of Service and Safeguarding, VOICES)
Fiona Bateman (Chair, CASCAIDr)
Does a Local Authority have the right to end the interim accommodation duty early due to the applicant’s behaviour in the face of COVID-19? And what consideration should be given to the person’s mental capacity to make cognizant and capacitous choices?
During these unprecedented times, local authorities and the wider health, care and housing workforce are confronted with difficult decisions when planning and applying responses to individual and systemic barriers that are inevitably exacerbated by COVID-19.
Last week central government mandated that all local authorities accommodate all rough sleepers – a compassionate response to COVID-19 for those living on our streets. As the situation unfolds it will undeniably require difficult decisions to be made under new and exceptional conditions with limited resources, time or information. People experiencing multiple disadvantage with issues linked to housing and homelessness seldom become ‘problem free’ once their ‘rooflessness’ ends, or when the move away from the streets begins. Rather, those first few nights are the most critical in a person’s transition.
As homelessness provider services and local authorities work tirelessly to ensure that ‘everybody is in’, hotels and bed and breakfasts will undoubtedly be challenged to accommodate their new and somewhat unfamiliar guests. Hospitality services will be well acquainted with the needs and requirements of the ‘usual’ visitor whilst endeavouring to ensure that guests receive a tailored and personalised service. Much of the hospitality industry is geared towards securing repeat business with satisfied customers expressing their gratitude with a glowing remark on Trip Advisor: – “Fantastic place and excellent customer service. Staff were friendly and willing to assist me at every opportunity. I will definitely be going back again. Thank you. Jay71”
But, in reality, what can reasonably be expected from hotel management and their staff when confronted by individuals whose reasons for visiting are not of the leisurely sort? Due to extremely challenging circumstances, worsened by long -term traumatic experiences that often result in mis-trust in others, problematic substance misuse, long-term health conditions and histories of ‘non-compliance’ with – what most would consider – ‘reasonable rules’; what may the hotel review look like then? It is crucial to acknowledge, that by providing a person with a roof, this does not eliminate their past experiences, nor does it take away their current needs. Would any potential review include remarks about how one was helped to collect their methadone, make a benefit claim or to seek medical attention? – “Fantastic person-centred service with a very experienced staff team. At times when I was worried and stressed, staff were very skilled in understanding my needs and able to offer reassurance, defuse my anxiety and provide practical help. Cheers. S.”
Findings by Local Government Ombudsman investigations serve to illustrate cases where temporary placements in accommodation (hotels and B&B’s) have broken down, in particular for people with long histories of homelessness. The consequences include eviction, often resulting in a return to rough sleeping, and withdrawal of the interim accommodation duty by local authority housing departments. In such cases the Ombudsman has highlighted the need for councils to work closely with hotel management to ensure that breaches of the rules are dealt with promptly and proportionately, this includes issuing the person with a verbal and written warning when negative behaviour becomes apparent.
Local authority housing departments when working with non-experienced temporary accommodation providers should be reminded that an individual’s ‘refusal’ to abide by the rules has to be persistent and unequivocal before determining that a person cannot be helped. This is likely to require careful consideration of how ill-health, trauma and past experiences may impact on a person’s ability to understand information and make decisions in respect of their behaviour. The legislation introduced to respond to the outbreak has not altered how the Mental Capacity Act 2005 operates in England, but precautions designed to keep us all safer will mean accommodation providers may have to interpret how this impacts on their usual operational practice. Guidance is emerging to support the workforce, but now more than ever local authorities and providers should work with the wider workforce (including within the voluntary and charity sector) to develop personal centred plans to guide non-experienced staff.
The Court of Appeal case of R v Kensington & Chelsea RLBC, ex p Kujtim (1999) confirmed that they can treat some kinds of behaviour with zero tolerance, provided the behaviour is not as a result of a person’s mental-ill health or disorder. Even so, a local authority could only treat its interim accommodation duty as discharged if a client unreasonably refuses to observe reasonable requirements through bad behaviour and if that behaviour is persistent and unequivocal – hence the pressing need for housing departments and providers to adopt this approach only after clear verbal and written warnings have been recorded by them and relayed to the individual person. This needs to include the conditions imposed on the individual in so far as these are reasonable by taking into account the person’s difficulties.
It’s even more important now for professionals to understand the difference between a person’s passive refusal or breach of rules from an active rejection of help; this is particularly important given the significantly higher prevalence rates of organic and functional mental illness, substance use, acquired brain injury, autistic spectrum conditions and learning difficulties amongst people who are street homeless who now find themselves, perhaps for the first time in a while, with a roof (albeit temporary) over their heads.
In light of the coronavirus, government directive reminds us that decisions will need to be made in accordance with the law and official guidance issued and applicable at the time, and while meeting statutory duties and professional responsibilities. These are testing times for us all, not least the people who have, far too often, found themselves on the margins of society and well before the outbreak even started.
The Department of Health and Social Care have developed an ethical framework for adult social care following the coronavirus outbreak which can be applied to a variety of contexts and settings, including housing. This framework is intended to serve as a guide for the sorts of difficult decisions that may be required to be made and reinforce consideration of any potential harm that might be suffered is underpinned by individuals’ rights under the European Convention on human rights. It reminds us that the needs of all individuals are always central to decision-making and the well-established principles of reasonableness, proportionality, inclusiveness and community.
Given these exceptional conditions, the Council of Europe has reminded us all that, even in these challenging times, measures must never result in inhuman or degrading treatment. It’s even more important that we continue to display flexibility in a manner that exhibits human kindness and endeavour to interpret and apply the legal rules in ways that are underpinned by human rights principles and professional ethics. Certainly, there is an ever growing evidence base of human compassion occurring amongst our communities, not least from our frontline heroes working across health, housing and social care services.
About the authors
Bruno Ornelas is the Head of Service and Safeguarding at VOICES and Brighter Futures Housing Association. He holds a masters in Safeguarding Adults Law, Policy and Practice and is working towards a doctorate looking at complex needs panels in the context of people who experience multiple exclusion and homelessness.
Fiona Bateman is a founding trustee director at CASCAIDr and works as an Independent Chair to Safeguarding Adults Boards. Fiona is an experienced solicitor with expert knowledge of health and social care law and safeguarding responsibilities.