I’m afraid the home has served notice

13 August 2020

Options and property owners

In the Court of Protection, once a lack of capacity is established, the judge only gets to choose between options that are actually available to P. We’d all (sometimes) like to have just what we want, but that isn’t how the world works, for any of us. We are limited by our resources, by our geography, by the decisions of a whole range of third parties. I might want to stay in the house I’ve rented for the past 10 years, but if my landlord wants me out and follows the rules for doing so, then staying there might not be an option that’s open to me.

The broadly inquisitorial nature of CoP cases means that judges can be persuaded to allow investigation into what is available and what is not, to suggest solutions no-one has yet thought of, and to generally assist the parties in working out what is best for P. But there comes a point where even the most interventionist of judges runs up against a decision made by someone else over which he or she has no control.

Property owners play a crucial role in many people’s lives, but a particularly crucial one in the lives of people who lack capacity to make decisions as to where they live. They might be the landlord of a property let on a formal tenancy (in a ‘supported living’ arrangement), or the owner of a care home where the written contract is actually one between the care home and the local authority, CCG, P or a member of P’s family[1], and where P is a licensee. Whatever the precise nature of the legal arrangement, however, we are looking at P’s home – and when the property owner wants to end P’s right to live there, it’s a serious business.

Notice is given – what then?

A problem I come across quite a lot within ongoing Court of Protection cases is this:

• P is a resident of a care home[2].
• The care home manager decides P cannot stay there any longer for some reason.
• The care home manager gives ‘notice’, usually to the local authority, sometimes to P or P’s family, requiring P to leave by (say) 28 days time.
• That date is viewed by the authority as a ‘hard’ deadline, and an urgent hearing is listed in the CoP for it to consider approval of a hastily arranged emergency ‘move’ for P.

What should we, and the court do about this? I think at a minimum, lawyers and judges working in the CoP ought to have some basic understanding of the nature of P’s right of occupancy and the speed with which it can – and cannot – be ended. Having that knowledge equips us to determine if this really is as urgent as all that – or whether we have just a bit more time on our hands.

The CoP has no power to prolong a tenancy or licence that has been lawfully ended. But the exercise of the private law rights of a care home owner can of course be relevant to the issues in cases before the CoP and are thus important for it to understand, in two ways in particular:

• If a care home’s manager gives ‘notice’ to end a resident’s occupation of the home (in any form, and whatever its legal effect) that tends to indicate that there is a problem with it providing care to the said resident. That fact cannot be ignored.
• However, if those charged with finding new accommodation for that resident proceed on the basis that a date set out in such a notice is always to be treated as a hard deadline, this can lead to inadequate work being done to source suitable accommodation for the resident.

Why has notice been served?

The first thing for us to scrutinise is not really a property law point at all. We need to know the reason that a care home is offering for ‘needing’ to end P’s occupation. These can vary greatly. Some examples:

• The home has lost its CQC registration, or is closing down for some other reason.
• The home is struggling to care for P, often due to an inability to manage P’s behaviour.
• The home is upset at the behaviour of P’s visiting relatives – or maybe at the fact they have made complaints.
• The home has been engaged in a longer term liaison with the local authority to urge it to find somewhere better or more suited to P and has served notice to bring matters to a head.

I think with every one of these reasons I’d have questions, which would start with variations on ‘yes, but even if you’re right why does it have to happen by X date?’[3]. I would want to hear the clearest explanation of that, to be able to consider whether (property law issues aside) a move by the magic date given might actually be in P’s best interests. Sometimes that is indeed so. Maybe P really wants to move, there’s somewhere suitable available elsewhere, and this is just the impetus we’ve been waiting for. Commonly, however, this is not the case. And the answer we get back demonstrates the local authority’s priority is keeping the care home happy rather than establishing the existence of a welfare reason to uproot a disabled person at speed.

Another common issue is that the care provider feels – perhaps with justification – that it is not being given the support or resources that it needs to care for P. That too might need some consideration on our part – can the complaint of the home be resolved by the provision of some more 1-1 support, or some other intervention by the local authority, or someone else? Can we challenge a refusal to do so?

Notices and eviction procedure

Imagine then that we have not been persuaded that a move is necessary right now. We face the argument that the care home has nonetheless given notice. Doesn’t this mean living in the care home has essentially ceased to be an available option for P? A form of ‘notice’ I see regularly is an email along the following lines, usually sent from a care home manager to the local authority social worker:

I am very sorry but I’m going to have to give [P] 28 days notice as from today – this will mean him moving out of the house on the 12 September 2020. I have been of the view for a lengthy time that we are not the right placement for [P], and have made my views clear to you many times. I would ask that you please work with me on this date. I wish you all the best in finding him somewhere suitable to live.

This demonstrates that the care provider is unlikely to be able to accommodate P for much longer. Ideally the manager would like him out by that deadline. Does it, however, mean that he must move out by that date? Should the parties and the court take it mean that? The answer must be ‘no’.

First, like most care home residents P is likely to be a licensee of his care home, as opposed to a tenant. But that doesn’t mean he can just be turfed out! The licence is not one excluded from the statutory protection of the Protection from Eviction Act 1977[4]. This Act provides that for the vast majority residential occupiers, eviction can only be achieved by an order of the county court made in possession proceedings, then executed by a bailiff’s warrant. None of the various exceptions to this procedural protection in (set out in s3A PEA 1977) can really be applied to a care home resident[5].

To create a firm deadline the care home would need to (a) serve a valid notice to quit complying with the common law and statutory provisions[6] (b) obtain a possession order from the county court[7] (c) execute that order via the court bailiffs. It has not yet even met (a) because an email like that above does not comply with s5, in particular because the statutory prescribed information was not contained with it (and it has not been served on P himself). To be kind to the care home manager, a notice of the kind set out above is almost undoubtedly not intended to operate as a notice to quit, but rather as an formal indication that the care provider wished to ensure P was moved on somewhere else, and was getting sick of waiting[8]. It ought to be seen as such.

Substantive defences

Arguments as to security of tenure, form and effect of notices and the need for possession proceedings are more than mere ‘technicalities’. They are strictly to be observed and make a real difference to the outcome in many cases. And even where all such requirements have been observed, there may, in some cases, be more substantive defences to be raised on behalf of an occupier – whether under domestic law or via Article 8 ECHR[9]. I don’t think CoP lawyers need necessarily to become expert in running such defences. We just need to be able to operate a triage and referral process, and have an idea of how the delays involved might impact on the issues in the CoP case.

Commonly when these problems present in a CoP case there is no presently available alternative accommodation for P. Where a person is facing the loss of their home then obviously the search for an alternative home must be swift, but it must also be thorough, and focused on securing – so far as is possible – accommodation that meets P’s needs in the long term. The search should not be circumscribed by an erroneous belief that there is a looming deadline that must be met.

Time can be an end in itself

The good news is that I find when these issues are raised and discussed with other parties to a CoP case, and indeed before judges, there’s often little resistance to the taking of a more reasonable course. The first question I ask the local authority to put to the care home manager is ‘can you tell us what is going to happen on the date your notice expires if P has not moved out?’ The answer is usually… well, there isn’t one! Nobody thought that far ahead. So if the next point to the care home is – ‘Look – we are in the CoP, the judge is considering the question of P moving home, we appreciate the position you have taken and are trying to do something about it – how long could you wait if you really had to?’ the answer is… usually an awful lot longer than we originally thought. This gives us time to consider important fact-specific things like: does P really have to move; is there an alternative solution; how can we best develop the plans for any move to make it a success etc?

I certainly don’t think there is cohort of care home managers, social workers and local authority/CCG lawyers keen on evicting disabled people for the fun of it! But I do think people fall into the trap of seeing ‘deadlines’, and working to them, however contrary those deadlines are to P’s best interests. A short pause for breath in such situations is what is required. As any housing lawyer knows the thing their client needs most of all is often simply time: if I really must move out, at least can I have a few months to plan where I go rather than a couple of weeks? An effort to ‘defend’ P’s property rights, come what may, may not in fact be in P’s best interests or indeed be what P wants. We have to bear that in mind. A timid acceptance of a care home’s own timetable may be equally or more harmful to P, however, and that is what I am keen for us to try to avoid[10].

[1] Dependent, usually, on who is paying the care home.

[2] I give this example, though similar issues could of course arise where P is a tenant of a house or flat, or a licensee of somewhere other than a care home.

[3] Of course we wouldn’t accept some of these factual scenarios as justifying P having to move out at all.

[4] see s3A PEA 1977

[5]The exceptions are for things like holiday lets, or certain kinds of hostels, or some lodgers.

[6] See s5 PEA 1977 – usually a minimum period of 28 days.

[7] See s3 PEA 1977

[8] The home will usually not have analysed the nature of its legal relationship with P, as opposed to that it has with the local authority. Thus it won’t have considered what it has to do to generate an enforceable ‘deadline’ for eviction, in the way a landlord usually would with a tenant.

[9] These are well beyond the scope of this article. Whenever there is a concern as to the precise rights of an occupier to prevent eviction specialist legal help is essential. Legal aid provision is woefully inadequate post LASPO Act 2012, but there are still excellent advisers out there. See here for how to find someone: https://england.shelter.org.uk/housing_advice/complaints,_courts_and_tribunals/legal_aid_and_free_legal_advice#:~:text=Legal%20aid%20helps%20people%20on,to%2Dface%20and%20at%20court.

[10] Shelter has some excellent advice on its website on security of tenure for all types of occupier – the advice for care home residents is here: https://england.shelter.org.uk/legal/housing_options/people_in_need_of_care_and_support/older_people_residential_care#7