Something we have been noticing at Ridouts recently is confusion over whether or not providers need to register as a care home. This has been prominent in the context of homecare/domiciliary care agency providers that are part of supported living schemes with local authorities and may assist service users with finding accommodation.
Registered Activities – Personal Care or Accommodation
It is important to understand what Regulated Activity the provider is providing. These are set out under the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
There are two Regulated Activities that are relevant to care homes and home care/supported living providers: 1) Personal Care and 2) Accommodation for persons who require nursing or personal care.
Personal Care (“PC”) is physical assistance given to a person to assist them with eating or drinking, toileting, washing or bathing, oral care, or care of skin, hair and nails. PC can also be prompting, in conjunction with supervision, of a person in relation to any of the above where that person lacks capacity.
Accommodation for persons who require nursing or personal care (“Accommodation”) on the other hand, is provision of personal care and residential accommodation together as a single package. This is usually delivered in a care home setting and the service user typically will not have a choice to separate the accommodation and care they are receiving (i.e. they cannot choose another provider for the care at that particular location). You will not need to register additionally for the registered activities of PC or nursing care where you are registered for Accommodation.
It is important to understand whether or not the provider is actually providing both the accommodation along with the personal care. It is the combination of the two, by the same provider, which is key. If a provider is deemed to be providing accommodation without the correct registration with the CQC then this is a criminal offence and there is potential for them to be prosecuted.
Where confusion often arises
However, confusion often arises where it is unclear whether or not there is a true separation between the provision of accommodation and the care. Where the two are distinct, then the intended home care agency/provider will only need to register for PC. However, where both are delivered by the same provider, and the service user has no real choice to seek an alternative provider for either their care or accommodation, then the provider may need to be registered for Accommodation and not just PC, effectively rendering them a care home.
Ridouts has seen the CQC alerted to this in instances when the CQC is reviewing evidence and representations that providers submit in response to enforcement action being taken by the CQC. For example, making comment that one has obtained a lease for a property to place service users at in order to deliver care under the supported living scheme can potentially alert the CQC to investigate registration status. The CQC will look into the set-up of the service provision and become concerned with the practicalities of who is in control of the provision and management of the accommodation and the care. This is why it is imperative that providers ensure they are registered correctly for their service provision. Otherwise, in defending themselves against one type of enforcement action, providers may actually open themselves to risk of enforcement action in another area.
The Guidance – How to Know if you are Providing Accommodation According to the CQC
To assist providers, guidance has been produced to clarify what a real separation between accommodation and care looks like.
According to the CQC’s ‘Housing with Care’ guidance, where a provider offers residential accommodation as a single package that includes nursing or personal care then the correct registration is that of Accommodation.
The guidance goes on to set out indicators for the regulated activity of Accommodation:
- Provider of care and accommodation are normally the same legal entity (i.e. there is no clear separation between the two parts of the service);
- Providers of care and accommodation can sometimes be different, but care and accommodation are provided as a single package;
- To receive accommodation, the supported person must accept personal care from the accommodation provider or a company that works with them to deliver the combined service; and
- People using the service do not hold genuine and valid occupancy agreements.
The guidance also refers to the Court of Appeal decision between Andrew Moore and others and the Care Standards Tribunal and the Commission for Social Care Inspection, which provided some guidance on what exactly constitutes Accommodation for registration purposes:
- This ruling confirmed that the provision of accommodation together with nursing or personal care was a key factor in determining if a service was a care home;
- How the accommodation and care are linked must be considered; and
- The whole picture of the service being provided must be considered and it is important to look at the degree of separation between the care and accommodation providers, where they coordinate with each other to organise the provision of accommodation and care.
The guidance notes some other helpful principles in respect of what a supported living service is:
- There is a real separation between the care a person receives and their accommodation;
- The personal care and accommodation are covered by separate agreements and there is a lawful occupancy agreement in place;
- People normally have exclusive possession of at least part of their accommodation; and
- There must be a real separation between the personal care and accommodation agreements.
The guidance also notes that establishing a genuine separation can be difficult and referred to the ‘Real Tenancy Test’ (“RTT”) as helpful in assisting with this distinction.
The RTT is a set of criteria, made up of five key standards/questions, for providers to assess their service provision structure against in order to determine whether or not they are just providing PC and a genuine tenancy exists or they are providing Accommodation.
Taking each key standard/question in turn:
- Is there a tenancy agreement in place?
- Existence of a tenancy agreement does not in itself determine that the tenancy is legitimate – the tenant must have choice and control over their home. If a tenant has moved from their home because of a decision by the support provider or local authority commission AND/OR anyone has been placed in the accommodation without consultation of the existing tenants then it is likely a genuine tenancy will not be found.
- Does the tenant have control over the place of residence?
- The person cannot have been simply placed because there is a vacancy. If the tenant did not have any other choices when moving into their accommodation AND/OR the tenant wants to move out but is not getting support to do so then it is likely a genuine tenancy will not be found.
- Does the tenant have control over housemates?
- If a tenant has moved into the accommodation without consultation with currently tenants AND/OR there is a tenant that is clearly unhappy living with another tenant then it is likely a genuine tenancy will not be found.
- Does the tenant have control over the support provider?
- The housing and support should be contracted separately and support should not be a condition of the tenancy. There should also be a separate support contract in place that states the tenant has a right to change the support provider. If a tenant is expected to move if their support needs change AND/OR support if provided at times prescribed by the provider and not the tenant then it is likely a genuine tenancy will not be found.
- Does the tenant have control over what happens in their accommodation?
- It should be called a person’s home and not a ‘supported living scheme’ – language in contracts, agreements and training and induction should reflect this. There should not be an office and unnecessary paperwork and equipment owned by the support provider in the accommodation – there is a separate office space at a separate location. If tenants have only restricted access to any part of the accommodation AND/OR there is office equipment (i.e. phone line and files) owned by the housing or support provider in the accommodation AND/OR the landlord and support provider staff have free access and hold keys to the accommodation then it is likely a genuine tenancy will not be found.
It would appear that the main distinction between merely providing PC and providing Accommodation is whether or not the activity is carried on in the service user’s own home or a care home.
Emphasis is clearly placed on a clear and genuine separation between the provision of accommodation and care in order to establish that a service is not operating as a care home.
To maintain a genuine registration as a home care/domiciliary care agency providing PC via a supported living scheme, providers should not be involved in the provision of accommodation, this includes the provider being a tenant and subletting to service users.
Consequences of Providing Services Under the Incorrect Registration
As mentioned before, where a provider is registered incorrectly, there is a risk they may be prosecuted by the CQC.
Under the Health and Social Care Act 2008 (“2008 Act”), a person who carries on a regulated activity without being registered is guilty of an offence and is liable on summary conviction to a fine or imprisonment or both and/or is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 12 months or both.
Further, the 2008 Act also grants the CQC wide ranging powers to inspect premises they believe are used for the provision of adult social care services. In essence, where the CQC would not normally be able to inspect a service user’s private residence, they may be able to go into a property in the instance where they reasonably believe that the premises are in effect a care home and a provider is avoiding registering as a care home. Thus, the CQC being aware of facts such as a provider holding a tenancy to a property and subleasing to service users or the provider maintaining an office at a service user’s home where the care is provided may be grounds for them to inspect and pursue further action where it is deemed to be provision of a regulated activity without registration.
Fines are unlimited, so there is the potential that providers can be put out of business depending on the level of seriousness of the failure to register. Looking at the CQC prosecutions data, the CQC has fined as much as £70,000 for carrying on a regulated activity without being properly registered.
Another, more subtle risk, is the loss of housing benefit where a person starts living in a care home. This is because in order to be eligible for housing benefit, individuals must either have reached state pension age or they are in supported, sheltered or temporary housing. Thus, those who receive care from supported living providers, who come into the individual’s home and provide the care, can still apply for housing benefit which can go towards rent costs.
The CQC will usually send a letter to unregistered providers in the first instance urging them to register where people are not placed at risk of immediate harm. However, the CQC will escalate enforcement action quickly in the following circumstances:
- If a provider continues to provide regulated activities without registration;
- If the CQC have grounds to believe that a provider is knowingly choosing not to register; or
- If an unregistered provider places people at risk of harm.
Thus, it would appear this is a narrow window of opportunity for providers who unknowingly and/or mistakenly failed to register for Accommodation to correct this before enforcement action is taken.
For any provider it is imperative to ensure that you are registered the correct way and for all the Regulated Activities that they provide. Failure to do so can mean either a potentially unlimited fine or imprisonment for up to 12 months.
Being aware of what constitutes provision of Accommodation will be key to ensuring that you are not operating as a care home without the proper registration status. Even if it is a misunderstanding or oversight, in Ridouts’ experience, the CQC tends to take a heavy handed and unforgiving approach to enforcement action.
If you have any questions about your registration or need clarity on what regulated activity(ies) you should register for, Ridouts’ team of specialist solicitors can help. We have a wealth of knowledge and many years of experience ensuring providers are compliant with the relevant legislation. If you need assistance or want to enquire about how we may be able to assist please contact us at firstname.lastname@example.org or call us on 020 7317 0340.