FAQ
We have compiled a selection of questions that Housing Options is frequently
asked along with concise answers.
If you have a question that isn't listed below or if you require any further
clarification on a particular area please contact us - by phone on 0845
4561497 or by email to enquiries@housingoptions.org.uk.
→ What is Housing Options?
→ What is a Housing Options
Plan?
→ What is a Discretionary Trust?
→ Why is it called a Discretionary
Trust?
→ Can I put my house into a
Discretionary Trust?
→ What is Joint Ownership?
→ How can a group of families
best combine together to purchase a property with the intention it be
occupied by their disabled children?
→ What is legal capacity?
→ How is legal capacity assessed
in the case of house purchase?
→ If the capacity is in question
what can I do about it?
→ How is the deputy appointed
and what is the court of protection?
→ What age do you have to be
to have a tenancy?
→ We want to grant tenancies
to all our disabled tenants - some of them may lack legal capacity. Can
we grant tenancies anyway?
→ What is a support tenant
and how does this work?
→ Is there a list of the
different support possibilities?
→ Is there a list of the
different housing possibilities?
→ Our son/daughter is just
about to leave school. What happens now?
→ Our son/daughter is about
to leave education and Social Services tell us they must come back and
live with us. What rights do we have?
→ Our son/daughter is very
unhappy where they are. What rights do we have?
→ Does Housing Options
run workshops or conferences?
→ Can I or my family have
a personal consultation?
→ I'd like to become a
member of Housing Options, how do I find out more information?
A: Housing Options is an advice service for people with
learning disabilities, carers and professionals who work with them. The
aim is to provide answers to all housing related questions including benefits,
trusts, tenancies, choices available, mortgages, support and similar matters.
It provides free advice by phone, letter or e-mail and can also provide
a more personal consultation service across the country for a fee.
Numerous Factsheets
and Quick Briefs
have been prepared which can be downloaded from this web site.
Q: What is a Housing Options Plan?
A: The Housing Options Plans (HOPs) have been developed by Housing Options as a system for assessing and advising on the housing and support options available to individuals. This service is primarily intended to be commissioned by local authorities. Each plan takes several days to prepare and research. It includes a written advisory report.
The fee for preparing a HOP is £1150. It is also possible for families to commission a HOP for discussion with Social Services. HOPs are similar in concept to the education assessment that some families are used to for younger children or assessments Social Workers are trained to carry out for children except that they are first, independent, second carried out by housing and support experts, third concentrate more on providing solutions and alternatives and choices than on simply assessment.
For further information download the HOP
Information Sheet
PDF
| Size: 62 KB
Q: What is a Discretionary Trust?
A: Discretionary trusts are used by families to make long-term financial provision for sons and daughters. The key point about a discretionary trust is that funds or property put into the trust do not count as assets for the purposes of benefits or in terms of the responsibility of the local authority or health authority to fund care. This is because the funds put into a discretionary trust do not belong to the beneficiaries but to the trust.
For more information download the Quick Brief Discretionary
Trusts (ref 03)PDF
| Size: 59 KB
Q: Why is it called a Discretionary Trust?
A: This kind of trust is administered by trustees. The deeds which set up the trust give the trustees discretion as to how the funds are to be used. The intended beneficiaries have no rights to either the income or capital held in trust. To work in terms of financial planning for children an additional characteristic is usually that the trust is set up for the benefit of a group of people, not a single person. This can be a 'class' of beneficiary of whom the son or daughter is a member, for example all people with Downs Syndrome or with an Autism Spectrum Disorder.
Q: Can I put my house into a Discretionary Trust?
A: Yes. Your home is an asset and can therefore be put into trust. This is commonly done through setting up a trust in the parents' will which makes provision for the property to be put into trust. There are several reasons why this may be a good idea. First, the trustees can undertake the task of managing and maintaining the property. This is particularly important where the disabled person may lack legal capacity and therefore would be unable to manage money and to contract for the maintenance services. Second, because the property is put into trust it does not belong to the individual and therefore cannot be subject to a legal charge by a local authority who might otherwise seek to recover the costs of providing care if at some point the beneficiary is put into residential care or otherwise supported by a local authority.
A: Joint ownership is where a number of individuals, normally
this is restricted to a maximum of four, combine together to purchase a
property. Many people are in practice joint owners although they may not
realise it. A husband and wife or partners who live together in the house
they are buying may well be joint owners. The significance of joint ownership
is that the people purchasing are 'jointly and severally liable' for repaying
the mortgage. This means that they do not own a precisely defined share
as in shared ownership but are each responsible for the whole of the repayments.
Joint ownership may allow a small group of disabled people or their families
to club together to purchase a property but there are other alternatives.
Q: How can a group of families best combine together to purchase a property with the intention it be occupied by their disabled children?
A: There are at least four ways that relatives can combine resources to buy a property for sons and daughters:
- joint ownership through a limited company
participating relatives form a company limited by shares. The company will buy the freehold of one of the family's property or a new property. Occupancy of the sons and daughters will be on the basis of tenancies from the company to the individual occupiers. Loans required to purchase or adapt the property will be to the company. It is possible that a lender will want guarantees to be the joint liability of the participating relatives. This means that each relative is responsible for all other relative's liability, not just their own. This may be a significant risk where borrowing is concerned. - joint ownership
participating relatives buy the property in their own names. In law the maximum number of joint owners is usually four. The relatives jointly own as 'tenants in common'. Occupation would be on the basis of individual tenancies - there is no limit to the number of beneficial tenants. Joint owners would be jointly liable to the mortgage company for the full amount of the loan. - freehold and long leases
participating relatives form a limited company which would buy the freehold, each of them would have shares in the company. The company would then grant long leases of individual units within the property to each of the participating relatives. Each relative would then let their child occupy the individual unit leased to the relative. Each relative would borrow money on the security of the lease granted to them. This means that each relative would be responsible only for their own borrowings. - Industrial and Provident Society
Where there are seven or more people it is possible to form what is termed an Industrial and Provident Society. This creates a legal entity, which can borrow in the same way as a limited company. The advantage of this is that it is a model familiar to mortgage providers and model rules are available. In the past mortgage interest tax relief was available but this has now gone.
A: Legal capacity is the term used to describe the ability of someone to enter into a legally binding contract. The law in this area is covered by the principles stated in the Mental Capacity Act 2005:
- There must be an assumption of legal capacity for anyone aged 18 or over.. The circumstances are relevant to the test of capacity i.e. just about anyone could contract to buy a bar of chocolate because the consequences and sums of money involved are relatively trivial. Not everyone can contract to buy a house.
- The essence of legal capacity is that somebody understands the nature of the obligations and risks that they are entering into i.e that in renting a house a rent has to be paid regularly or the individual risks being made homeless.
- People understand that they have a choice to enter into the contract or not.
- Before making a decision that someone lacks capacity for a particular contract, all practicable steps have to be taken to help them make a decision.
Q: How is legal capacity assessed in the case of house purchase?
A: Legal capacity is an issue in the case of house purchase
because if a lender enters into a contract with someone that they know lacks
legal capacity then the contract is void. The way the law works however,
the penalty for entering into a void contract falls on the party that has
capacity rather than on the more vulnerable, disabled person. So, there
is a risk to the lender that they will not have the mortgage repaid and
they fear there is insufficient legal redress.
In practice we have found that legal capacity is less of an issue than might
be expected. However, where it is an issue then the lender might for example
ask that the disabled purchaser meets with a solicitor representing the
Society and the solicitor is then asked to judge whether or not the purchaser
has sufficient capacity.
Q: If the capacity is in question what can I do about it?
A: When entering into a purchase agreement and capacity is an issue, there are a number of alternatives that may enable the transaction to proceed even though capacity is in some doubt. These include -
- Provide extensive instruction about the issues obligations and risks to the individual concerned.
- Use simple illustrated documentation e.g. an accessible tenancy agreement.
- Joint ownership or tenancy with someone who does have capacity. Note that in the case of joint ownership the person does not have to live in the property so for example another member of the family can jointly own with a disabled relative.
- The disabled person grants another individual (usually a relative) lasting power of attorney. The argument is that to grant lasting power of attorney requires less understanding than necessary to understand the implications of purchase or mortgage.
- In extreme cases a deputy can be appointed by the Court of Protection. Some legal experts argue with reference to the 'law of necessaries' that anyone can contract to rent or purchase a property because this is a 'necessary'.
Q: How is the deputy appointed and what is the court of protection?
A: A deputy is someone who is appointed by the Court of Protection to handle the day to day running of a person's finances and property. A deputy may be able to control all a person's finances, or be appointed on a 'short order' to undertake a specific task, eg house purchase, signing a tenancy.
The Office of the Public Guardian carries out the administrative functions of the Court of Protection, which protects and administers the property and financial affairs of persons who are incapable of managing and administering their property and affairs by reason of mental disorder.
The Court of Protection prefers a close family member to act as a deputy as they are far more likely to have the person's best interest at heart. However, anybody can be considered by the Court of Protection to be appointed as deputyr. They may be a relative, friend, neighbour or professional representative, such as a solicitor, accountant, Local Authority officer. The person making the application may seek their own appointment, or they may ask for the appointment of someone else.
There are occasions when the Court of Protection is unable to appoint a suitable deputy as explained above, in such circumstances the Court will first consider whether a member of its professional panel of deputies would be suitable to act. The Court may appoint the Chief Executive of the Public Guardianship Office to act as Deputy if there is no-one else able to do this.
When the Court of Protection appoints the Chief Executive of the PGO, the
client's affairs will be assigned to a caseworker who is a member of staff
of the PGO. It is the caseworker, under delegated responsibility from the
Court, who has day-to-day responsibility for running the client's financial
affairs.
The Court of Protection will usually appoint a deputy when a person is deemed
to lack mental or legal capacity and has:
- more than £16,000 in cash after payment of debts, or
- property to be sold, or
- a level of income that the Court considers necessitates the appointment of a receiver
The Public Guardianship Office (PGO) will assist the receiver in completing
their duties properly.
Scottish law differs from English and where capacity is in question Scottish
Courts are able to give greater authority to others to act for a disabled
person.
For more information download the Factsheet Deputyship
and Power of Attorney (ref 15)PDF
| Size: 115 KB
Q: What age do you have to be to have a tenancy?
A: The legal age at which a tenancy may be granted is
18 years old, as the person is deemed responsible and as having legal capacity.
However, tenancies have been given to people who are under 18 years old
under special circumstances. These circumstances are usually where the person
is unable to find any other suitable accommodation and have the involvement
and protection of social services, who may be asked to act as guarantors
for the individual concerned.
Q: We want to grant tenancies to all our disabled tenants - some of them may lack legal capacity. Can we grant tenancies anyway?
A: Yes. The point about legal capacity is that if the disabled party to the tenancy lacks sufficient understanding then the contract may be said to be void. However, there is no penalty falling on the disabled person so he or she has nothing to lose. One the other side if the landlord for reasons of good practice and because they wish to respect the rights of their tenants wishes to grant the same rights as any other resident then they are welcome to do so. The official solicitor has advised local authorities they may grant tenancies even though capacity may be in question.
Q: What is a support tenant and how does this work?
A: A support tenant is somebody who shares accommodation with a disabled person. They usually do not provide high levels of care but are similar to a kind of flat sharing or flat mate situation that for example students might have. Support tenants vary. Some are volunteers, sometimes they are students offering to be support tenants for a limited period of time in order to get accommodation. Sometimes support tenants are professional people who are committed to this kind of arrangement as a contribution to the community and act as support tenants for many years. The term 'buddy' or 'flatmate' and others are also used.
The precise arrangements vary but broadly it is likely that a support tenant will have some form of contract with a care provider. A support tenant will agree to share the accommodation with the disabled person and do a limited number of tasks such as waking the person up in the morning, helping them have breakfast, making an evening meal so many nights a week, taking the person out for a social activity once a week.
A support tenant will usually live rent free and get a small payment to cover their expenses of for example doing one or two social things each week which they might not otherwise do. From a support providers perspective a support tenant can be a very good way of providing economical coverage particularly during the night. From a disabled persons perspective it may provide them with a friendly companion and help combat the isolation that might otherwise be experienced in more independent living situations.
For more information download the Factsheet Support
Tenant (ref 16)PDF
| Size: 89 KB
Q: Is there a list of the different support possibilities?
A: There are many different support possibilities to meet individual need, here are some examples:
- 24 hour staff team support, including sleepover staff and waking night staff if required.
- Staff providing support at agreed set times.
(In the above models support workers may be directly employed or employees of a care provider).
- Support tenant living with the individual, and a team of support workers providing assistance with specific support/personal needs.
- Key-ring support network, where people live near and around a specific person who can be contacted for support as well as receiving any extra support that they require from support workers. Mutual support is often a feature of support networks.
- Warden control support, usually for the elderly but some similar schemes have been developed for people with learning disabilities.
- Circles of support - A group of people be-friend and actively assist the disabled person.
- Informal support - May be the help of neighbours, but most fundamentally is care and support provided by parents and other relatives.
Q: Is there a list of the different housing possibilities?
A: There are a wide variety of options which include:
- Care Home- registered or unregistered
- Small Group Home
- Adult Family Placement/ Supported Lodging
- Renting - individual tenancy from Housing Association, Local Authority or privately
- Living with family in their property
- Renting a separate property from a family member or trust
- Shared Owner with a mortgage
- Outright owner or joint owner
- Intentional community, e.g village community
Q: Our son/daughter is just about to leave school. What happens now?
A: The Education Department is required to notify Social Services of all young people aged 13 or 14 who are disabled. Eight months before a child with a disability is due to leave full time education the Education Department is required to notify Social Services in writing. Social Services are then obliged to co-ordinate a multi-agency assessment of the young person which must be completed no later than 3 months before the person's school or college leaving date.
From the age of 18 there is a transfer from children to adult services under the NHS and Community Care Act 1990. Each local authority is required to publish a Community Care Plan which must outline which services they intend to provide.
All schools have a duty under the Education Act 1993 to have Special Educational Needs Policies which take account of Transition Plan arrangements. A Transition Plan is a document which sets out the arrangements which an education authority considers appropriate for a child during the period when they are aged 14 - 19 years, including arrangements for special educational provision, for suitable employment and accommodation and for leisure activities, and which will facilitate a satisfactory transition from childhood to adulthood. The Local Authority must include a Transition Plan in the first review after age 14. A Transitional Plan should build on the conclusions reached and targets set at the previous annual reviews of a child's Statement of Educational Needs.
Q: Our son/daughter is about to leave education and Social Services tell us they must come back and live with us. What rights do we have?
A: Under the Carers (Recognition and Services) Act 1995 carers are also entitled to an assessment of their needs. This should be a formal process looking at the range of needs as opposed to any individual need. Assessments for Carers and the cared for person are the responsibility of your local Social Services Department.
If it is appropriate for the young person to live away from home once they have left school, then it is very important that this has been included in the Transitional Plan (see previous question).
Q: Our son/daughter is very unhappy where they are. What rights do we have?
A: Disabled people or their carers can request a care assessment. Social Services have a duty to carry out these assessments. Second, local authorities have a duty to meet the assessed needs of the disabled person. The Social Services must consult and involve the housing authority (which may a district council and therefore not the same as the Social Services authority which may be county based in a non-unitary authority) where there are housing issues. Local authorities should take account of the wishes of the disabled person and their carers and relatives. So far so good. However, how the assessed needs are met is a matter for the authorities.
First, most Social Services departments struggle with their budgets. They are not obliged to give a particular solution that a disabled person might prefer, where they lack resources to do so. Second, there is always pressure to fill vacancies in residential care homes particularly where the local authority Social Services department still runs such homes (increasingly local authorities simply contract with other providers for places rather than directly providing themselves but the pattern differs around the country). The marginal cost to a local authority in filling what would otherwise be an empty place in the home is likely to be much less than providing a support package to enable one individual with severe disabilities to live in their own home. However, the best, most imaginative local authorities will certainly want to try and meet the needs of each individual and also their aspirations and are increasingly extending the range of possibilities that they make available or support.
If you are unhappy with the assessment or the solutions offered you can request a new assessment, seek to negotiate better solutions or appeal.
Q: Does Housing Options run workshops or conferences?
A: Yes. On request Housing Options can run a workshop for organisations. In the past these have been predominantly for groups of parents or for local authorities seeking to extend the range of possibilities by training core management and/or housing staff. Housing Options can also provide sessions at conferences. These are on a fee paying basis.
Q: Can I or my family have a personal consultation?
A: Yes. Housing Options now has a national network of housing advisors who can provide individual consultation and advice on housing and support. However, unlike telephone, written, e-mail and other types of advice a fee has to be charged according to the time taken.
We also offer to prepare detailed, written Housing Options Plans for individuals. This may be part of a Local Authority carrying out its duty to operate a person centred planning approach in relation to people with learning disabilities and commissioned by the Authority. Alternatively, we may work directly for a family, individual or organisation.
Q: I'd like to become a member of Housing Options, how do I find out more information?
A: Housing
Options Membership is for housing or support agencies, voluntary organisations
and local health and social service authorities. The Housing Options Advisory
Service has a core of member organisations who both support and benefit from
the work of the service.
For more details contact one of Housing Options' staff on 0845
4561497 who will be able to tell you all about Housing Options and
how to join.
You can also download the Information
Sheet on MembershipPDF
| size: 91KB
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