The Law Commission

PART 10

SUPPORTED HOUSING

INTRODUCTION^[1]

10.1      One of the biggest challenges which has faced the Commission in this project has been the creation of a legal framework for the regulation of supported housing. Supported housing comes in a wide variety of forms and types of provision, but it is all designed to provide accommodation for some of the most disadvantaged and socially excluded members of our society. This very fact creates its own challenges. Managing supported housing, difficult at the best of times, can on occasion be extremely dangerous, as occupiers – under the influence of drugs or alcohol – may behave erratically and threateningly.

10.2      Our thinking about the best way to develop this part of the law has changed dramatically during the consultation process. Initially we suggested that all projects providing an appropriate level of supported accommodation to vulnerable groups should be excluded from our proposed statutory scheme and from the Protection from Eviction Act 1977.^[2] We also suggested that the Secretary of State could have a power to hold a list of such projects.

10.3      Our reason for adopting this "hands-off" approach was that we thought this would be the best way 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 statutory list would have provided a level of certainty arising from the lack of statutory protection available to such projects, overcoming current difficulties in identifying the legal status of certain projects.

10.4      Responses to these proposals were very critical. We were told that we had failed to appreciate the diversity of supported housing schemes, the extent to which providers were committed to giving occupiers of supported housing the most extensive security possible and the increasing professionalisation in supported housing arising from the Government's Supporting People^[3] programme.

THE NEW APPROACH

10.5      On closer investigation, we realised that the philosophy that underpins the Supporting People programme presented an excellent basis for developing our own ideas for the reform of the law. The legal framework we now recommend responds by providing user perspectives, clear frameworks and accountability of providers. In addition it provides for the stepped progression of clients from housing dependency towards housing independence.

10.6      Our approach^[4] now is to provide a legal framework that differentiates between types of supported accommodation. In essence, our scheme establishes three levels of legal protection for supported housing:

(1) agreements excluded from the scheme (very short term accommodation);

(2) agreements included as standard contracts; and

(3) agreements included as secure contracts.

10.7      We have also recognised that managers in the supported housing sector have specific needs for a range of measures that can be used by them in specific circumstances.

10.8      This approach to supported housing is much more consistent with our overall approach to the statutory scheme than our original ideas. Our new recommendations provide for as few exclusions from the scheme as possible and as few exceptions to the general requirement upon social landlords to provide housing on secure contracts as possible.

DETAILS OF OUR STATUTORY SCHEME

10.9      The Bill provides the first legislative recognition of the specific needs of supported housing landlords and occupiers. It provides the opportunity to escape the very real difficulties that projects are forced to deal with under the current law, given the need to choose between quite possibly legally dubious licences, on the one hand, and (for these purposes) overly-secure assured shorthold tenancies on the other.

10.10      Supported housing accommodation is defined in clause 234. It is based upon the link between the provision of accommodation and the provision of support services.^[5] We also recognise the importance of housing charities' work in this area, and accommodation provided by charities is therefore included in the definition alongside accommodation provided by community landlords. This means that those housing charities that are not also community landlords are able to utilise the legal tools we have designed for the management of supported housing, though they are not obliged to provide accommodation on a secure contract.

Exclusion of short term provision from the statutory scheme

10.11      Notwithstanding the general objective of including supported housing in the scheme, the draft Bill excludes supported accommodation from the scope of the scheme when it is intended to be provided for a period of four months or less.^[6] This is designed to exclude respite accommodation and accommodation provided whilst a landlord assesses the needs of a client before providing them with longer-term accommodation.

10.12      During this period the normal rules about, for example, the provision of a written statement of the contract will not apply. This does not mean that landlords cannot provide their clients with some statement of their rights and obligations. In practice many do, if only to make clear what the particular house rules are. For example, many schemes explicitly prohibit alcohol or drug use on the premises, and make it clear that breach of such a rule will result in loss of the accommodation.

Exclusion of supported housing accommodation from the requirement to enter into secure contracts – the enhanced management period

10.13      The scheme also enables supported housing provided by community landlords to be excluded from the general requirement that they provide accommodation under secure contracts.^[7] The exclusion is, however, time limited. Initially it lasts for up to two years, and can be extended in particular circumstances that are outlined below. During this period, the landlord will enter into a modified version of the standard contract, known as the supported standard contract.^[8] The Bill does not prevent a community landlord offering a client, who has made good progress and demonstrated a capacity to live fully independently, a secure contract before the end of the two-year period.

Tools available to the managers of supported housing

10.14      The two-year period is defined in the Bill as the enhanced management period.^[9] During the enhanced management period two specific management tools are available: exclusion and mobility.

EXCLUSION

10.15      The first of these recognises that many landlords must be able, without delay, to temporarily remove a resident who is behaving violently or in a way which endangers themselves or someone else in the accommodation. At present this is achieved in practice because supported housing managers use licences which they think – often incorrectly – entitle them to evict such a person without going to court.

10.16      Although our scheme provides that, after the initial period of four months, residents should have the benefit of at least a standard contract, it also recognises that there are circumstances when immediate removal is the only practical option.

10.17      Therefore the Bill provides that it is a fundamental term of the supported standard contract that, during the enhanced management period, the landlord^[10] can exclude an occupier without the need for any intervention by the court. This admittedly draconian power is subject to two vital limitations. First, no exclusion can be for more than 48 hours. Second, the landlord or the designated person must reasonably believe that the occupier has acted in a particularly dangerous manner.^[11] The landlord must give notice to the contract-holder setting out the reasons why they are required to leave, either when requiring them to leave or as soon as reasonably practicable afterwards.^[12]

10.18      The acts which justify a temporary exclusion are:

(1) where the occupier has used violence against anyone on the premises;

(2) where the occupier does something on the premises which creates a risk of significant harm to anyone; or

(3) where the occupier behaves in a way which seriously impedes the ability of another resident of supported accommodation provided by the landlord to benefit from the support provided.^[13]

10.19      We recommend (and the Bill provides for this) that this provision cannot be used more than three times in any six-month period.^[14] We thought restriction should be included to prevent abuse by the landlord. Three times in six months was the number we arrived at after discussions with providers of social housing, but the Government may see fit to increase or decrease this number. This may be a particular issue on which further public consultation will be needed.

10.20      Clearly there will be circumstances where the landlord will need to exclude the occupier for a period longer than 48 hours. To do this the landlord will need to go to court to obtain an injunction. For example, if the landlord decides that eviction is necessary, the landlord may seek an injunction against the occupier to last for the length of the possession notice period.

MOBILITY

10.21      Often supported housing providers have limited accommodation available, and it is essential that they can put it to the best use. To assist with this, the Bill gives power to landlords to require contract-holders to move within the building.^[15] For example, a room near the resident manager's room may be best used to keep an eye on a new arrival. Therefore the manager may need to move occupiers within their premises. The ability to move people can also be a useful tool in maintaining order – moving residents who are in conflict, for instance, may forestall the need for one or both to be removed or evicted.

10.22      At present many providers seek to achieve this by using agreements that contain a "non-exclusive occupation" clause. This may suggest, at least to lawyers, that this would be more likely to result in the arrangement being a licence, not a tenancy. But in practice, such a provision is often fictitious and serves only to confuse residents.

10.23      Our recommendations enable providers to make sensible and considered decisions about how accommodation needs are to be managed but in an open and transparent way, rather than using arcane legal principles.

10.24      We accept that both these provisions enable supported housing managers to exercise powers not available to ordinary landlords. But we think that they are a proportionate response to the particular challenges of managing this class of accommodation.

Extending the enhanced management period

10.25      As noted above, our recommended scheme for supported housing provides for progression from a limited period of no legal rights, to a further limited period when rights are conditional upon appropriate behaviour, and culminates in the provision of accommodation on the same basis as any other rented accommodation. It will always be open to providers to enhance occupiers' rights at any stage.

10.26      Nevertheless, we recognise that there will be some circumstances when the additional tools or restrictions on rights during the enhanced management period need to be available for longer than two years. Thus the scheme provides that in limited circumstances the landlord can extend the enhanced management period.^[16] This requires the service of a notice of extension upon the contract-holder at least eight weeks prior to the expiry of the enhanced management period.

10.27      The landlord must provide reasons for the decision to extend the period.^[17] In particular, they must justify the continuing need to have the power, discussed above, to temporarily exclude the particular contract-holder in question.^[18]

10.28      Where the landlord is a judicially reviewable body, the occupier can apply to the county court for a review of the decision to extend the enhanced management period.^[19]

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Note 1    Supported housing is discussed in Part 16 of Renting Homes (2003) Law Com No 284.    [Back]

Note 2    See paras 9.101 to 9.107 of Renting Homes (1): Status and Security (2002) Law Commission Consultation Paper No 162.    [Back]

Note 3    Department of Social Security, Supporting People: A New Policy and Funding Framework for Support Services (1998).     [Back]

Note 4    We are grateful to those representatives of supported housing who attended a seminar at the Law Commission on 9 July 2002 who helped us design the outline of the scheme which is set out in the Bill.    [Back]

Note 5    Cl 234(1)(c).    [Back]

Note 6    Sch 1 para 13.    [Back]

Note 7    Sch 2 para 2.    [Back]

Note 8    Cls 76 to 78, 94 to 97.    [Back]

Note 9    Cl 95.    [Back]

Note 10    Or someone designated by the landlord: cl 78(7).    [Back]

Note 11    Cl 78.    [Back]

Note 12    Cl 78(5).    [Back]

Note 13    Cl 78(3).    [Back]

Note 14    Cl 78(6).    [Back]

Note 15    Cl 77.    [Back]

Note 16    Cl 97. This decision will in certain circumstances be reviewable: see para 10.28.    [Back]

Note 17    Cl 97(4).    [Back]

Note 18    Cl 97(3).    [Back]

Note 19    Cl 107.    [Back]

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