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What is Housing
Options? |
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.
Over 20 factsheets
have been prepared which can be seen or viewed on this web
site. |
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What is a Housing
Options Plan? |
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.
Reasonable travel expenses of the Housing Advisor are additionally
charged at 40p per mile by car or public transport actual
cost. |
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What is a Discretionary
Trust? |
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. |
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Why is it called
a Discretionary Trust? |
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. |
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Can I put my house
into a Discretionary Trust? |
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. |
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What is Joint Ownership? |
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. |
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How can a group
of families best combine together to purchase a property with
the intention it be occupied by their disabled children? |
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.
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What is legal capacity? |
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 generally considered unsatisfactory and there
are no very precisely defined tests of legal capacity. However,
case law has established:
- 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.
- The presumption in law is that people over 18 have capacity.
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How is legal capacity
assessed in the case of house purchase? |
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. |
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If the capacity
is in question what can I do about it? |
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) enduring power of attorney. The argument is
that to grant enduring power of attorney requires less understanding
than necessary to understand the implications of purchase
or mortgage.
- In extreme cases a receiver 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'.
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How is the receiver
appointed and what is the court of protection? |
A receiver is someone who is appointed by the Court of
Protection to handle the day to day running of a person's
finances and property. The powers of a receiver relate only
to dealing with the financial affairs.
The Public Guardianship Office (PGO) 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 prefer a close family member to act
as a receiver 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 receiver. 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 receiver as explained above, in such
circumstances the Court will first consider whether a member
of its professional panel of receivers would be suitable to
act and, if this would not be in the client's best interests,
will appoint the Chief Executive of the Public Guardianship
Office to act as Receiver of Last Resort.
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 receiver 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. |
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What age do you
have to be to have a tenancy? |
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. |
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We want to grant
tenancies to all our disabled tenants - some of them may lack
legal capacity. Can we grant tenancies anyway? |
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. |
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Where can I get
examples of accessible tenancy agreements? |
Housing Options has been supplied with copies of a number
of organisations tenancy agreements which can be obtained
from us. We are always interested in receiving good, clear
examples from organisations. |
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What is a support
tenant and how does this work? |
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. |
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Is there a list
of the different support possibilities? |
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.
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Is there a list
of the different housing possibilities? |
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
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Our son/daughter
is just about to leave school. What happens now? |
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. |
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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? |
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). |
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Our son/daughter
is very unhappy where they are. What rights do we have? |
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. |
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Does Housing Options
run workshops or conferences? |
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. |
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Can I or my family
have a personal consultation? |
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. |
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I’d
like to become a member of Housing Options, how do I find
out more information? |
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.
More Detailed Information on Joining Housing Options.
You can also contact one of Housing Options' staff on 01865
882736 who will be able to tell you all about Housing Options
and how to join. |
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