Our Learning Disability Team (Adult Social Services) has an increasing number of service users in supported tenancies. These are usually private tenancies (with a private-sector landlord) where care is provided by a separate organisation (a private company or charity). The LHA rules appear to mean that service users moving into new supported tenancies will only receive the 1-bedroom self-contained accommodation rate. However, many of the properties are in "better" areas where the rents are more expensive than this - leaving shortfalls of up to £50pw.

Is there anyway round this? I've thought of DHPs - but this is likely to be only a short-term fix. The tenancies do not appear to count as "exempt accommodation" because they are private tenancies.

This must be an issue in other areas of the country. I'm struggling on this 1 so any help would be gratefully received. Thanks if you can help.

Matthew

Unless the 'private' landlord can be placed into an exempt category I think you're stuck. (Sch 3, 10(b) HB (CP) 2006).

Possibilities include arguing that the landlord is a voluntary organisation (if accommodation provided at cost as non-registered social housing - 'not for profit' (HBR2)) or sub-letting the accommodation to a local authority or RSL who will then either provide the support directly or be clearly bound into a contract overseeing its provision.

Things are slowly tightening in the wake of the R(H) 2/07 - it's becoming a massive problem nationally. Careful planning of the provision of this type of accommodation, and smart contracting to establish who the support is provided by, would seem to be needed.

Better still, some 'joined up' thinking in Whitehall where conflicting messages seem to be being voiced - Valuing People and THB ancouraged the growth of the sector as a community based alternative to institutional care, but with the spiralling costs of providing bricks and mortar the supported housing sector is struggling to remain a viable 'self funding' venture for tenants and public authorities alike.

Fred - this is very helpful - thanks - Matthew

It may be worth exploring whether the supported tenancies fall within the substantial board and attendance exemption from LHA.

See para 1.23 - 4 of LHA manual: www.dwp.gov.uk/housingbenefit/lha/lha-guidance-manual-amd1.pdf

I can't seem to locate this within the CPAG WB & TC Handbook

Tue 20-May-08 01:28 PM by Kevin D

Just to clarify a couple of things.

The "exempt accommodation" exception is found in para 4(10) within Schedule 3 of the HB & CTB (Consequential Provisions) Regulations 2006.

If care, support or supervision (CSS) is not being provided by, or on behalf of, the landlord, it doesn't matter whether or not the L/L is a "voluntary organisation". The law is quite clear. CSS must be provided by, or on behalf of, the landlord.

Further, the L/L must be a non-met county council (in England); or a Housing Assoc; or a registered charity, or "voluntary organisation".

Both sets of criteria must be satisfied. If not, it is not exempt accommodation.

I also question the concept of "smart contracting". The question as to whether CSS is, in reality, provided by (or on behalf of) the L/L is one of fact. If the contracts say one thing, but do not reflect the situation in reality, the contracts are not worth the paper they are written on - precisely the point made in R(H) 2/07.

Declaration of interest: I assist LAs in exempt accommodation cases.

It all comes down ultimagtely to interpretations of 'on behalf of', assuming that the landlord is not providing the support but falls onto one of the categories listed in 4 (10). The Rivendell cases were weak cases and at the time the decison was made didn't even have CSS listed as a condition of tenancy.

Of course smarter contracting is not an answer in its self, but schemes jointly commissioned as tri-partite partnerships, where each party holds a substantial and meanignful stake in the overall venture, can still be presented as exempt accommodation. If Turnbull shows what should not be done, he also by inference shows us what SHOULD be done in seeking exemption.

Where a scheme already exists and hasn't been commissioned along Turnbull-proof lines, I see no reason why the sub-letting solution shouldn't be used, particularly where the l/l is the same LA that commissions the CSS. If an RSL is brought on board as an alternative then a management agreement with the support provider (and CSS as a condition of tenancy) should help to establish that they're not merely providing a roof over a client's head.

With Turnbull the pendulum undoubtedly swung in favour of LA's paying HB, and no doubt you'll be advising many of them accordingly, but I don't think it's quite as cut and dried as you suggest. I've had success in Durham where the paper trail backs up the contentions made in my submissions. Otherwise your summary is spot-on!!

Again, I note that reference is made to tri-partite agreements and, seperately, conditions of tenancies including CSS.

A "substantial and meaningful stake" is only relevant if CSS is genuinely provided on behalf of the L/L (any other services are irrelevant). In the vast manority of cases I have been involved with (to varying degrees), it has been readily apparent that such terms are included with the deliberate intent to shoehorn the tenancies in the exempt accommodation exception.

As for deliberately changing the structure (e.g. bringing in a L/L that satisfies the "status" condidtion), I for one would be looking very closely at whether or not the liability had been created to take advantage of the HB scheme (Baragrove principles).

I appreciate the above may sound steadfastly uncompromising. And, I accept that there are genuine providers in existence. However, in my actual experience, the number of "questionable" cases continues to grow apace. Hence my apparent sceptcism.

There's absolutely nothing wrong with you using the hard line and literal approach adopted by Turnbull, because that's clearly the most recent case law. I also accept that the reality 'on the ground' has to match the paperwork and that there are many cases where it clearly doesn't.

I still think though that many of his observations were specific to Rivendell, and if they're not then it would be almost impossible for there ever to be any 'exempt' accommodation - clearly not what the regulations intended. My experience is that common sense can still prevail despite his judgement.

If you take much of Turnbull's logic at face value, the only exempt accommodation that could ever exist would be schemes entirely owned and supported by one of the exempt bodies, with no LA input permitted except where the LA is also the landlord. How many schemes are not in essence commissioned by an LA to discharge some statutory duty? I can think of very few, and all are run along voluntary lines offering temporary or emergency accommodation on an open access basis.

If you accept that the meaning of 'on behalf of' always goes back to statutory imperatives and nothing else (as Turnbull seems to suggest), then there can be very little supported accommodation that is exempt. Most LA's don't assume l/l roles, and most RSLs, charities or voluntary organisations have no legal obligation to commission. Why, then, were these groups ever included in the Regs at all? Surely not just to cover a handful of emergency beds up and down the country.

Turnbull takes a very narrow and literal view and probably goes against the spirit and intentions of the regulations. I'd love to see a successful challenge, but in the menawhile I do think there are legitimate ways through the morass without getting into the areas of contrivance which you raise as (in some cases valid) possibilities.

Interestingly, Cmmr Turnbull *appears* to soften his stance (at least a little) in R(H) 7/07. Dare it be suggested, even backtrack?

However, albeit from a different angle, there is CH/3900/2005 where a non-met County Council assisted, substantially, with making the arrangements between a private L/L and a tenant. It was argued that the degree of involvement by the CC was enough to make them the accommodation provider &, hence, fall with the exempt accommodation exception (the CC also provided CSS). The Cmmr found that the accommodation was provided by the L/L; not the body arranging / facilitating the accommodation.

The one thing we will agree on (I think), is that many more CDs will follow (eventually!).

Well, I suppose I had better enter this discussion, having been involved (on the side of the angels!) in most of the cases before Mr Turnbull referred to so far. There is no doubt that the government needs to come to a clear view on how it wants supported housing to work. The current regs date from the pre-Supporting People era, where CSS was paid for as part of the rent via THB, and before that, as an HB service charge.

Reality is that most RSLs & council housing depts are not involved in this type of specialist accommodation, and it turns out expensive to provide, often using commercial finance. Many of the landlord providers are non RSL voluntary organisations. With the care packages directly commissioned by social services with the care provider, that now excludes the landlord from exempt status since Turnbull found that without a genuine contractual arrangement between landlord and care provider it was not possible to argue that CSS was provided on behalf of the landlord. I do think that the argument referred to by Kevin above that the accommodation was, in that sort of situation, 'provided by' the social services commissioner, who commissioned the housing from A, and the care from B, was a good one. The problem is that Paul Stagg did a good job of convincing Comm Pacey that the argument didn't stand up.

Most of the recent case law - and that where decisions are awaited - follows on from R(H) 7/07 which held that if the landlord is providing some CSS directly, then it doesn't matter that it is not the main or majority support provider, or that it is not contractually obliged to provide it, providing the amount of CSS is more than 'de minimis'. The arguments at the moment are mainly about how much is more than 'de minimis' (I say that the test is 'enough to make a difference, compared to an ordinary landlord'), and can you take into account support that is available when necessary, even if that is rarely if ever called upon? That follows on from Turnbull's judgement in CH/779/07. The full hearing of that case - along with several others - was on 8/9 May, and the judgement is awaited.

To return the beginning, the government needs to come clean on how it wants this type of specialised accommodation to work. The current rules do not reflect reality on the ground, and involve the participants in verbal gymnastics to bring themselves within the rules, and so have a chance of making a scheme financially viable. It should not be beyond the whit of some clever person to draft a regulation for exempt accommodation that includes legitimate social schemes, and excludes any dodgy ones, if they exist!

Simon Ennals