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“If You Lack Capacity, You Can’t Be Homeless”

July 7, 2016

I’ve written about it twice recently but the current plight of Emily Clark is truly heartbreaking and terrifying. Yesterday, events took a very sinister turn.

A quick catch up. The residential college where Emily has lived for the past three years withdrew their placement (I hate that word) on 24th June. Very unsettling but reasonable notice was given. When the 24th June arrived & Shropshire council still hadn’t agreed a suitable home, the college were left with no choice but to extend the ending by three weeks, up to 15th July.

Everything is sorted. A bungalow has been identified. The CCG have agreed the funding. A support team is in place and raring to go. All the furniture is currently being stored in a DFS warehouse.

What’s the hold up? Nobody can agree who signs the tenancy agreement. Emily is deemed to lack capacity so it can’t be her. Her mother, Nicky, doesn’t have property & affairs deputy ship, so it can’t be her. None of the professional bodies involved will accept responsibility. Stalemate. The anxiety is now so great that Emily is subjected to prone Restraint. That “treatment” is now so commonplace for learning disabled people, none of the professionals bat an eyelid. It certainly doesn’t prompt a sense of urgency.

Yesterday, after several weeks of bureaucratic flim flam, Nicky discovered that the Head of Housing at Shropshire council and the Head of Adult Social Care are one of the same person. A Mr Andy Begley. And Mr Begley’s response to Nicky’s latest frantic communication? “As Emily lacks mental capacity, she cannot be deemed as homeless”.

Apparently this is settled law. But Boy, it couldn’t get any more discriminatory.

I find this terrifying and it ushers in all my mad, paranoid Dad tendencies. Nicky has already been warned that if a solution can’t be found, Emily will have to go to an ATU. How fucking convenient that will be. We’ve got to keep the great ATU monster fed. Emily doesn’t need assessment; she doesn’t need treatment, but what the heck. Let’s pay a private provider £6k a week so we don’t have to take any responsibility. The NHS will foot the bill, after all. And as we all know, once there, it will take years for Emily to be released.

Alternatively, my other paranoid theory is, is this delay a calculated attempt to force Emily into cheaper, supported living? As we know, learning disabled people don’t deserve homes of their home. Better to shoehorn them into rebranded care homes with several other learning disabled people. Emily can pool her budget, the provider can pool their staff and everyone can get on with living an unfulfilled, pooled life. I can imagine the fury in Mr Begley’s offices that Nicky is expecting Emily to live the same sort of life, in the same sort of home as most members of Mr Begley’s team.

It goes without saying that this is a scandal. A scandal for Emily. And it hadn’t hit me until yesterday, but how many of the 3000 people in ATUs are there for the same reason. Because of bureaucracy. Or because multi disciplinary teams cannot imagine that a learning disabled person might want a home like you and I.

Yesterday, whilst waiting for the bus, I spotted one of the dudes who was in the ATU the same time as Steven. He now, along with 24 others, lives in the crap supported living flats round the corner. He was being led aimlessly down the High Street by a support worker on her phone. They stopped for an age to browse the Ironmongers window. I thought of Steven back home, having just finished his Wednesday morning disco and preparing for a six episode Fawlty Towers bonanza. I swallowed the lump in my throat. God, he’s lucky!

Mr Begley – please do the right thing.

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From → Social Care

34 Comments
  1. Diana Stevenson permalink

    What they need to do is make an urgent application to the Court of Protection. This will then give permission for someone from the Council to sign her tenancy. I am amazed they didn’t do this immediately – it’s something we are doing all the time in our council

    • Whom do you mean by “they”, please? Who should be putting the application in to the CoP and who has the right to do so? Emily’s school? Her parents? The Clinical Commissioning Group? The Council? Meanwhile, Emily’s hopes of a life (rather than a circumscribed, unfulfilling and precarious existence) are running out with the sands of time, through the gaps between services.

      • As Justice Jackson said in our case, it should be the LA (or the CCG). But I’ve just sent Nicky the link for making an urgent CoP application to be appointed financial deputy. The family can make the application (although they should never be put in that position).

  2. joan permalink

    What on earth is going to happen to our children when we gone. If this is the way they are treated with warrior parents fighting for them

  3. Mark you know I am a very down to earth Yorkshireman and tell it straight! It really feels like the system is making this all too complex! We should never forget the power of MCAct and BEST INTERESTS surely a best interests discussion by all parties could agree who could sign the tenancy agreement to allow this young woman to move now and the legal mechanics can be resolved later if needed ! I am sure the Court of protection has enough to do without having to consider such tenancy issues! I hope my thoughts are of use from your older social work mate in Leeds ! Regards Mick

    • Diana Stevenson permalink

      That’s what we do here. If the process is going to take too long, we have to get permission from our Director of Social Services for the person to move before we have actually completed the Court of Protection process. Otherwise no-one lacking capacity re their accommodation would ever be able to move within any realistic time-frame

      • Fascinating. And illuminating re. @ShropCouncil & Andrew Begley – there are things it / he could have done, so it / he must be *choosing* not to?

  4. It beggars belief that the authorities in planning haven’t sorted this out – landlord could accept without signing or even temporarily whilst waiting for the CoP to approve – it’s clearly in her best interests!! By now one would have hoped they know the basics – not just ignore things. LA/CCG should take responsibility if need be but as said above surely someone could take it on until sorted? Definitely lost the plot here – I could accept CCG might not understand tho’ should but LA…..?

  5. Julie Owen permalink

    We had to fight for 2 years to get the right Support Package for Angharad to live independently in her own home. Clinical Commissioning tossers were confident that all her needs could be met in a care home. Social Services afraid she would become isolated! Local Authority provided a pittance of a Disability Grant because Shared Ownership is only for normal people.
    I’ve lost count of the people who’ve told we that Supported Living is the way forward.
    But we didn’t giv up we kept fighting. We got there just.

  6. Shared ownership can and does happen for disabled people. I know parent deputies sign the paperwork on behalf of their adult children with severe disability.

  7. Some legal background in case it may help anyone reading this. Unfortunately, it’s not straightforward. http://nearlylegal.co.uk/2015/03/part-6-and-capacity/

  8. Julie Owen permalink

    I’m a deputy for my daughter. It takes a couple of months to go through CoP what it’s fairly straightforward. I signed her mortgage papers and tenancy.
    Emilys parent need to apply for deputyship.

  9. Phil Lee permalink

    Head of social care (Andy Begley) must surely be registered as a social worker – make a formal complaint against him with the professional body which governs the profession that he is failing in his duty of care, and as such, should have his registration revoked (and therefore his ability to hold the position).
    Someone must be able to take civil action on Emily’s behalf (through the appointing of a guardian ad litem if necessary), for compensation (against Andy Begley personally, not against the council, since it is his actions alone which are causing this harm, and the council have given him the powers he needs to prevent it), for the mental anguish and distress HE has caused her and the breach of her human rights (equality act may be of use), and is continuing to cause her for every day he refuses to sign the necessary paperwork. Use petition sites such as 38 Degrees, Avaaz, Global Citizen, SumOfUs, One.org, Campaigns By You, Change.org, and Care2 to raise petitions naming him personally as the individual responsible for the human rights abuses. Raise FOI requests on how many people are in Emily’s position, then for how long they have been in that position, how long they can expect to be in that position unless something changes, etc. Contact her MP, asking a question (that they have to respond to) and appealing for help in solving the problem. Make it impossible for him to do any work other than fighting off or responding to the demands, petitions, letters, emails, telephone calls, tweets, and any other forms of communication that you can think of. CC the councillor on all communications, so that THEY get heartily sick of having to wade through the mess he is causing, and start to consider action against him through his professional body as well.
    In short, make his life a living hell until he either signs or is driven out of his profession, so that it is more trouble for him (or his replacement, if it comes to that) NOT to sign than to sign and get it out of his hands. It might seem excessive, but is if anything less severe than the stress he is causing for her and those who care for her, and sauce for the goose is also suitable for the gander!

  10. Shirley Buckley permalink

    The CoP is very reluctant to grant a deputyship.

    • Yes.

      And then Deputyship is subject to continuing review per se, and at the behest of the LA or NHS.

      Next of kin are often seen, as the enemy, particularly if they try to interfere in state care, and this can then be construed as a conflict of interests with their vulnerable family member, and a reason not to grant them Deputyship.

      We need FOIA requests on the actual numbers granted, which I’m sure would substantiate this.

      • Julie Owen permalink

        I applied without the knowledge of LA or NHS. Possibly the wisest thing is for parents to apply sooner rather than latter so that LA etc can’t interfere.

      • But they or an OS appointed for the purpose or simply on review of Deputyship can be revoked, They are very precarious things. You have to get if I remember rightly your relatives GP involved on assessments and other officials so do not understand how you managed to get one so to speak behind the NHS and LAs back

      • Julie Owen permalink

        Yes I should have clarified that. Yes G had to confirm lack of Mental Capacity. But no learning disability/CLDT or community nurses or otherwise had any knowledge.
        We’ve had the same GP Practice for years so they were sympathetic.

      • It worries me that you say confirms lack of capacity and know this appears standard when the Act says that capacity exists and must be presumed until rebutted as prescribed by Act on the bal of probs.And a person can only be assessed as incapable in respect to a specific decision and the specific time the decision needs to be made in his best interests and not on general decisions over general time present or future.

  11. Julie Owen permalink

    I applied 2 years ago and had no difficulties.

  12. Shirley Buckley permalink

    The CoP prefers to make a Court order rather than a deputyship. And I found that if the person lacked capacity, the Court ordered the OS to act as litigation friend. and then the OS could or should or must be the Deputy. Nearly legal says its not simple – it is hellishly complex, and most of it not legal anyway

    t

    • Julie Owen permalink

      I suppose it depends on the circumstances.

    • And Deputyships costs money, and is a continuing money spinner, from those who can least afford them, as they now receive at most £103 per week DLA and £62.50 Carers Allowance for 24/7 care.

      Its authority, is at the whim of the state, so those under it are completely controlled.

      The problem with LPAs are, that the COP, as a matter of practice, are writing to Public Guardianship office and having them set aside, on the grounds the person was incapable at the time of signing them, again illegal.l

  13. Shirley Buckley permalink

    Just checked on the order decision of the Court preferred toappointment of deputy s16(4)a MCA, I was not allowed to act as deputy as I had not acted in my son’s best interests. And OS always to act for my son. English law runs on precedent. See Finola Moss reply

  14. Julie Owen permalink

    There was no one to object to my application as there was no conflict over her care or living arrangements.

    • Same with me. Even after the acrimonious court case in 2011, there was no objection to me being Steven’s deputy a year later. Once again, another example of good and bad experiences of the CoP

  15. Julie Owen permalink

    Possibly is it easier to obtain Deputyship for Property and Affairs and harder for Welfare.
    To sign a tenancy only Property and Affairs is needed.
    Possibly also the CoP act differently for a ‘one off’ and quickly needed decision and for many decisions needing to be made over a longer length of time.

    • Ironically, COP, before MCA, rarely dealt with Welfare, this was left to the family, but now, since MCA, the number of applications in respect to welfare, have taken over those in respect to property, see statistics of the Public Guardian ship Office.

  16. Shirley Buckley permalink

    Much much easier for property and affairs. I have an old EPA from 2000, which works very well for my son and me. When I first went to the CoP they didn’t even have any LPA forms, and used the old Property and affairs ones, which was ludicrous

  17. Julie Owen permalink

    I was told by CoP that relatives only take out Welfare if they have a family member on a life support machine!

    • I presume that’s because, they are hardly, going to be very lucrative care commodities in the future

  18. Shirley Buckley permalink

    Can I just point out to everyone who reads my replies that the MCA came into force on 1 October 2007, and my case was in the Court of Protection on the 9th October. The hearings began in October 2006, and the last hearing was July 2014. I have been refused permission to bring the matter back to Court, so Martin has to do it himself now. I am, sort of, the expert. And Martin is the very first “pawn” in this power game

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