Is any one else dealing with this issue in their area?

We have a large number of cases (20+) for a particular LA regarding service charges for utilities/cleaning for the shared kitchen, bathroom etc in shared houses occupied by adults with learning disabilities. Houses owned by various social landlords are involved.

The level of care and support provided is, in most cases, substantial (up to and including 24 hour waking support to individual/all residents of a particular house).

Issue is meaning of 'sheltered accomodation' within "communal areas" at para 8 Sch 1 HB Regs 2006. 'Sheltered accom' is not further defined within the HB Regs.

Until recently LA had allowed service charge for utilities/claeaning of communal areas as eligible service charges. LA now argue that the accomodation is not 'sheltered accomodation' for purposes of Sch 1.

First case was not sucessful at tribunal. Appeal dismissed on grounds that the level of care & support provided is so substantially in excess of that provided within what might generally be understood as 'sheltered accom' (i.e. a self contained bungelow/flat, perhaps with communal meeting/dining room/laundry room, and an on site 24 hour or day time only warden who provides a limited range of support) that it is not sheltered accom for the purposes of Sch 1.

We are trawling current cases for the one(s) with the lowest level of care & support as the lowest end of the spectrum to test the dividing line.

The question remains at what point the level of care & support provided is so intensive that the accom cannot be defined as sheltered for HB purposes so that communal service charges are no longer eligible for HB. Similarly, is a shared house situation ever capable of being 'sheltered accom' or does it require that there is some lesser degree of shared facilities (i.e. own toilet/bathroom/cooking facility)?

It appears other LAs continue to allow these charges for similar accomodation (inc same landlords). Readers will appreciate the potential number of cases involved nationally. We intend to give careful thought to the implications before considering any appeal to commissioners.

Has anyone else dealt with this issue?

I've not had time to check this CD, but services were at issue (in one form or another) in CPC/1820/2005.

www.osscsc.gov.uk/aspx/view.aspx?id=2029

If it turns out to be a wild goosechase, apologies.

As you say, there is no definition of "sheltered accommodation" in the HB Regs (or in the primary legislation either). I do have an old definition which I think came from DWP back in the days of the Transitional HB scheme in 1999/2000, although unfortunately I can't find the source. For what it's worth, the definition reads accommodation which "has a resident or non-resident warden with a system for calling them, and is let to people in need of general counselling or other support services, where the dwelling is one of a group of dwellings."

The word "dwelling" is not defined in the HB Regs, although it is defined in the Social Security Administration Act as "any residential accommodatoion, whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises."

Hence a room in a shared house is a "dwelling" for HB purposes. It therefore follows that a shared house can be classed as "sheltered accommodation" as long as there is a resident or non-resident warden and a system for calling them. This obviously extends "sheltered accommodation" beyond the traditional concept of a building comprising flats/bedsits with a communal lounge, laundry room etc etc.

It's also worth pointing out that there are many "extra-care" sheltered schemes across the country, which are aimed at people who have high care/support needs but who do not need residential care. In some cases, care homes have been de-registered and turned into extra-care sheltered schemes simply by changing the way support is provided, althouth the level of support remains the same. The properties therefore become "sheltered accommodation" and satisfy all the normal rules (one other advantage is that it enables Attendance Allowance to be paid). Tenants of sheltered schemes have tenancy agreements and a certain degree of security - residents of care homes only have a licence to occupy.

Of course, the distinction in terms of "need" is extremely arbitrary. There are many people in care homes who could, if they chose, live independently, and similarly there are many people living independently who would benefit from living in a care home but can't find one/can't afford one. With an increasing emphasis on keeping the elderly in their own homes there will be more and more people living at home receiving more support than some people in care homes.

I don't think that there can be a point at which "sheltered accommodation" becomes something else. If the resident has a tenancy agreement with exclusive right to occupy one room in a dwelling with shared facilities, or has a tenancy agreement with exclusive right to occupy a self-copntained flat in a block, which also provides communal facilities, then they have a liability to pay rent which is HB-eligible. What the Tribunal has done is, in effect, said that the accommodation is a care home, and the logical impact of that is that the rent/service charge is not HB-eligible. That, I think, is wholly unsustainable.

Bob - thanks for that. I can't find the reference either - its not in HBGM or any circulars I could find.

I rather suspect the f/t chair who heard our case would argue that what is provided to the residents is far more than a warden service as it is 24 care & support of the same nature as they previously received when living in residential care. That view would probably be supported by CPC/1820/05 and the reference to the role of a warden (called a 'scheme manager') in those cases which appears to be the more traditional role of limited support and emergency assistance. Can workers providing 24 hour care be called 'wardens' for the purpose of 'supported accom' as generally used?

I think the points you make about whether a shared house can be 'sheltered accomodation' is very useful. There are certainly developments of HA shared houses on the same site with a central unit where a warden is located (err, which funnily enough used to be residential care homes before care in the community!).

I am being very cautious as we don't want to run an appeal to the commissioners that could upset the apple cart for people in similar accom within other LA's whose service charges are being accepted as eligible.

From A47/2001

Accommodation Supported by a Warden (Resident or Non Resident) -
Often referred to as sheltered accommodation and mainly for older people. Tenants have their own independent accommodation within a group of dwellings and often have use of communal facilities. Landlords are varied and can be RSLs, local housing authorities and private landlords . In the case of private sector landlords, tenants would need a housing support CCA. Some schemes have resident wardens, others have wardens who visit regularly and provide 24 hour emergency call out.
High Level Needs Warden Assisted Accommodation - often referred to as very sheltered or extra care housing, and mainly for older people. These schemes provide for tenants with higher support needs and those who require assistance with personal care, but who do not require residential or nursing care.

The level of housing-related support provided to individual tenants may vary, but general counselling and support service charges are likely to be consistent for each tenant.

Thanks for locating the reference - I have obtained a copy - very useful!

The key is, as Bob developed, the way that the personal care is provided. During the days of the Transitional Housing Benefit scheme the NHS gave guidance on types of personal care, of which there were four. Of the four only two trigered a requirement to register with the (as then Care Standards Commision - now the Council for Social Care Inspection). These were hands on personal care or care of a close and intimate connection, such as needing to be present in the bathroom while a person had a bath, or used the toilet.

Thus if the landlord provided the care together with the accommodation they had to register and HB was not payable. If the personal care was provided by an outside agency then there was no requirement to register and HB was payable. The question of whether there was a warden providing services the charges for which were eligible for HB was then one of fact.

If the only care being provided is general counselling and support then registration is also not required and HB can also be paid for any warden based eligible service charges.

General counselling and support services themselves (including those provided by a warden) were removed for HB entitlement in April 2004 HB and are provided for from Supporting People funds.

Sorry, removed in April 2003.