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You are here: BAILII >> Databases >> The Law Commission >> Renting Homes (Report) [2003] EWLC 284(16) (15 November 2003)
URL: http://www.bailii.org/ew/other/EWLC/2003/284(16).html
Cite as: [2003] EWLC 284(16)
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PART XVI
SUPPORTED HOUSING
16.1 In Consultation Paper 162, we suggested that all projects providing an appropriate level of supported accommodation to vulnerable groups should be excluded from the statutory scheme and from the Protection from Eviction Act 1977.[1] We also provisionally proposed that the Secretary of State should hold a list of such projects.Introduction
16.2 The reason for proposing exclusion from statutory protection was to provide a legal environment that would facilitate supported accommodation for all kinds of short-term social projects such as hostels, drug rehabilitation projects, and foyers. The holding of a statutory list would have meant that there would be a level of certainty about the lack of statutory protection available to such projects, overcoming current difficulties in identifying the legal status of certain projects. These considerations remain important to our approach to supported housing.
16.3 Responses to our proposals indicated that we had failed to appreciate the diversity of supported housing and the extent to which providers were committed to the principle that occupiers of supported housing should be given as extensive security as possible. The suggestion of a list of excluded projects was rejected as too cumbersome.
16.4 The following recommendations have been developed following careful consideration of the responses to CP 162 and the contributions made by a group of providers of supported housing, who assisted us greatly by participating in a seminar convened by the Law Commission on 9 July 2002, in other meetings, and by providing written comments as our proposals progressed. We are very grateful for their assistance.
16.5 The proposed system of statutory protection for supported housing projects is dependent upon the following definitions.Definitions
(1) Direct access accommodation is housing accommodation provided by a relevant landlord as part of a project or scheme where the normal practice of the project is to accept anyone who requests accommodation as long as the project has available accommodation and the person asserts that they meet the basic criteria for the project. Accommodation must be provided on a day to day basis meaning that there is no commitment on the landlord to house beyond that particular night. The purpose of the accommodation is that it is immediately available to the occupier.
(2) Supported housing accommodation is housing accommodation where a relevant landlord is contractually obliged to provide support services and/or the purpose for which accommodation is provided is the provision of support.
(3) Support services means the provision of training or the provision of advice, guidance or counselling which relates to either physical or mental health, employment or training or the promotion of welfare or any other type of provision which is consistent with this list. It does not include the provision of higher education.
16.6 The broad definition of relevant landlords is designed to balance the need to embrace the wide range of organisations which provide supported housing and the need to ensure that the categories of landlord involved have sufficient public accountability to justify the extensive powers provided for in our Bill.(4) Relevant landlords are social landlords, as defined by the Bill (that is, local authorities, registered social landlords and housing action trusts), with the addition of charitable housing trusts who are not registered social landlords, and registered charities who provide supported housing.
16.7 The definition is extended more widely than social landlord to include: (1) charitable housing trusts; and (2) charities who provide supported housing but cannot be charitable housing trusts because their main source of income does not come from housing. Such charities include the YMCA. It is important to include both charitable housing trusts and charities who provide supported housing since they provide a range of valuable services to vulnerable people, while being subject to appropriate regulation by the Charity Commission.
16.8 We consider that different types of provision of supported housing should attract different levels of security. Certain accommodation should be excluded from our statutory scheme altogether; other accommodation should be excluded from the usual statutory requirement on social landlords to provide accommodation on a type I basis; and accommodation provided by relevant landlords on a type II basis should include a power to temporarily exclude someone from the accommodation who is behaving dangerously.Legal status of the occupiers of supported housing
16.9 Direct access accommodation will be excluded from our statutory scheme. A person's length of stay in direct access accommodation is irrelevant. This is because the landlord of direct access accommodation is not in a position to make an informed choice about the suitability of a person for anything other than immediate and short-term occupation of the premises.Exclusions
16.10 Temporary supported housing accommodation which is intended to provide very short term accommodation such as short stay or respite accommodation will be excluded from our statutory scheme. We understand that this exclusion will in practice exclude only a small number of units of accommodation; however, it is a useful exception that will allow flexibility of provision.
16.11 Once the provision of supported housing accommodation exceeds four months the provision will be brought within our statutory scheme. We accept that the time limit of four months is an arbitrary figure which may not represent the most useful period of exclusion. We will therefore recommend that the Secretary of State has power to adjust the time period of the exclusion.
16.12 Accommodation provided temporarily by a relevant landlord for the purpose of assessment should be excluded from our statutory scheme. Whilst assessment may be a relatively short process, we also consider that the period for which such accommodation is excluded should provide the landlord with sufficient time to prepare the occupier for more permanent accommodation or to organise alternative accommodation if the landlord decides not to continue to accommodate the occupier.
16.13 We consider that an exclusion from the statutory scheme of four months will provide sufficient time for a landlord to complete these processes. Once the provision of accommodation for assessment exceeds four months it will be brought within our statutory scheme. Again we accept that the time limit of four months is an arbitrary figure which may not represent the most useful period of exclusion. We will therefore recommend that the Secretary of State have power to adjust the time period of the exclusion.
16.14 We will not impose a requirement on landlords to inform occupiers of excluded supported housing of their status. This would not be practical in the light of the limited resources of many supported housing providers, and the short term nature of the accommodation provided. We would expect that as a matter of good practice landlords will provide the necessary information in a practical and useful format.
16.15 All other supported housing should in principle be treated consistently with the normal features of our statutory scheme. Therefore social landlords will be required to use type I occupation agreements unless the arrangements fall within a statutory exception to that requirement. Relevant landlords who are not social landlords will be able to provide accommodation on a type I or a type II basis as they choose.Exceptional use of type II by social landlords
16.16 We consider that there should be a limited statutory exception to the requirement that social landlords provide accommodation on a type I basis where supported housing is provided by a social landlord. The type II agreement provides some important advantages to the landlord of a supported housing project. First it provides limited security, so that if the occupier no longer requires support services, or chooses not to use the support services, the agreement can be terminated on a notice-only basis. Second the landlord who uses a type II agreement will be able utilise a contractual term allowing it to move the occupier from room to room (see below paragraph 16.27). Finally in certain circumstances following a request by a manager the police will be able to order the exclusion of an occupier from the project for 48 hours – see paragraphs 16.29 – 16.38.
16.17 The use of the exception to the statutory requirement for social landlords to provide type I agreements will be subject to the requirement that the social landlord provide written notification to the occupier that the statutory exception applies.
16.18 Whilst we recognise the need for such flexibility to facilitate the provision of supported housing, it is important that the exception is limited partly because of the additional powers of the landlord and partly because it restricts access to the benefits, primarily long term security, of the type I agreement. In most circumstances there will be no good reason why someone should be permanently excluded from these benefits.
16.19 We therefore propose that in normal circumstances, and where the accommodation is provided by a social landlord, the exception to the requirement to accommodate on a type I agreement will cease on the expiry of two years from the commencement of the type II agreement. This would mean that, if the landlord was a social landlord, after two years the resident would become a type I occupier either of that accommodation or of other suitable alternative accommodation. The landlord would no longer be able to move the resident around the project, nor would it have the benefit of the police exclusion order. The normal anti-social behaviour powers of injunction and eviction would be available to the landlord. Landlords not required to use type I agreements would be able to choose whether or not the agreement should become a type I agreement.
16.20 The two year exception should provide a satisfactory solution for the vast majority of people who require some support for a period of time but who in the long term are capable of sustaining independent living arrangements with more minimal support.
16.21 However we do recognise that landlords will only be prepared to house certain residents on a long term type II basis. If after two years they were automatically obliged to offer type I agreements they may respond by evicting and arranging for re-housing elsewhere on a type II or an excluded basis. This would be counter-productive.
16.22 We recommend that the statutory exception to the requirement upon social landlords to use a type I agreement should be able to be continued beyond two years where the landlord carries out an assessment of the support needs of the occupier and provides a written statement of reasons justifying the continuation of the type II agreement. In particular the statement must justify the continued need for the availability of the police exclusion order.
16.23 This means that the organisation most closely affected by decisions to enhance the rights of occupiers will be making those decisions. It will prevent evictions solely to avoid the change in status and would enable landlords to be responsive to the continuing support needs of residents.
16.24 We recognise that landlords of supported housing projects may have particular management constraints over and above the requirement to provide support. They are likely to have greater needs to move residents around their accommodation to ensure effective use of accommodation or to deal with particular needs of the resident. These needs can be dealt with by the use of appropriate terms in the agreement.Management control
16.25 Similarly where it is anticipated that at some stage in the future the support needs of the occupier will change in such a way that the current accommodation is no longer appropriate for their needs, then those changes should be dealt with by the inclusion of an appropriate term in the occupation agreement.
16.26 We recommend that a set of model default terms for supported housing provided on a type II basis should be drafted by the Secretary of State, following consultation with the key stakeholders in the provision of supported housing including, to the extent possible, representatives of residents.
16.27 Our scheme provides sufficient flexibility to allow a landlord to enter a type II agreement which gives the occupier the right to occupy a room in a particular building, for instance with communal facilities, but reserves the right to move the occupier should the need arise. If such a term were to be written into the model type II agreement, it would be deemed to be fair under the UTCCR regulations. Any variation of such a term would be at risk of being found unfair. A term that was not provided for in the model agreement could be written into the agreement but would need to comply with UTCCR requirements of fairness and transparency.
16.28 Our scheme does not require distinct accommodation to be provided for occupiers who are excluded from the scheme, or who are included on a type II basis. The exclusions focus on the relationship between the provider and the occupier, not on the particular premises. Therefore a room which is provided for an occupier during an assessment period and is excluded from the scheme, can continue to accommodate the occupier during the period of supported housing accommodation, when the appropriate agreement between the provider and the occupier is a type II agreement.
16.29 Effective management of supported housing accommodation may require more speedy exclusions than injunctions will provide. We have therefore designed a procedure modelled upon an Australian procedure referred to in CP 162 at paragraph 4.79. Designated managers of supported housing projects let on type II agreements will be able to request the police to exclude an occupier from the project.Police exclusion order
16.30 The power, which we describe as a police exclusion order, will be available to social landlords during the period of exceptional use of type II and to other relevant landlords for the first two years of provision of accommodation and for a longer period if they carry out an assessment of the support needs of the occupier and provide a written statement of reasons justifying the continued need for the availability of the police exclusion order.
16.31 The police exclusion order will give the police power to exclude an occupier from the premises of a supported housing projects for 48 hours without the necessity of going to court. Breach of the police exclusion order will be a criminal offence.
16.32 Police exclusion orders will be available to the police following a request from a designated manager of a supported housing project if they reasonably believe that a serious act of violence has occurred or the safety of someone on the premises is in danger from a resident or a visitor or the ability of a resident to benefit directly from the support provided by the project has been seriously impeded by the behaviour of a resident or a visitor.
16.33 Police exclusion orders will not be available where the resident has failed to pay rent or has abandoned the project. Nor will they be available where, for instance, a resident breaches the "no men" rule of a women's refuge, or a "no alcohol" rule, unless the breach of the rules results in danger to the safety of someone on the premises or seriously impedes the ability of a resident to benefit directly from the support provided by the project. Other breaches of rules will be dealt with through the normal possession or injunction procedures.
16.34 We recommend that there should be constraints against the arbitrary exercise of the police exclusion order to protect the occupier. First the police exclusion order will only be available on the request of a designated manager of a supported housing project. Second, the order will exclude the occupier only from the premises and not for instance from the surrounding area. Third, no more than three police exclusion orders may be issued against one occupier in any six month period.
16.35 We consider that the occupier requires some protection from landlords who obtain a police exclusion order by acting in bad faith. We recommend that there should be a statutory duty upon the manager of the project to act in good faith which will be enforced by means of a statutory tort.
16.36 However we also consider that the use of this provision must be flexible and responsive to the potentially difficult situations which can arise in these projects. Therefore there will be no need for the police to attend the project in order to issue the order unless they decide that it is necessary to do so. The designated manager will be able to get the police exclusion order issued over the telephone.
16.37 Police exclusion orders may be followed by an injunction to exclude the occupier from the project if the management of the project decide that this is advisable. The application for the injunction may be issued contemporaneously with possession proceedings and the injunction in such circumstances will last until effective eviction. A project would be at liberty to re-admit the excluded person after the expiry of the police exclusion order or after the expiry of the injunction if they decided that was the right course.
16.38 We consider that these recommendations are consistent with the emerging community safety role of the police and with the increased use of local partnership approaches in responding to disorder.
16.39 All supported housing occupation agreements covered by our statutory scheme whether type I or type II will include the special anti-social behaviour term. Injunctions will be available to restrain occupiers from breach of the term. Following any breach of the injunction, providers will also be able to apply to the court for a possession order, without having to issue separate possession proceedings. Social landlords will be able in certain circumstances to obtain injunctions that exclude occupiers from the project and have powers of arrest attached to injunctions. Type I agreements will additionally have the benefit of the demotion procedure. Therefore there are relatively extensive mechanisms to respond to anti-social behaviour in type I agreements.Type I occupation agreements
16.40 Supported housing providers have indicated to us that a major area of concern arises when the occupier is accommodated on a type I basis in supported housing, but no longer wishes to receive support, no longer needs support, or no longer pays for the support provided. We offer two solutions to this problem.
(1) Under our scheme, occupiers will be able to be evicted from their occupation agreement for breach of a term where the court determines that it is reasonable to do so.
(2) Additionally an estate management ground similar to Ground 15 of the Housing Act 1985 will be available to landlords.[2] Suitable alternative accommodation will have to be provided to an occupier evicted on this basis.
16.41 We consider that these provisions for supported housing projects will clarify the current confused state of the law on supported housing, maximise the rights available to occupiers in a manner that is consistent with the management requirements of the providers of supported housing and ensure that the responsibilities of both landlords and occupiers within supported housing projects are explicit.Conclusion
(Signed) ROGER TOULSON, Chairman
HUGH BEALE
STUART BRIDGE
MARTIN PARTINGTON
ALAN WILKIE
MICHAEL SAYERS, Secretary/Chief Executive
[Date of signing] 2003