Government is consulting on the detail around the implementation of the Supported Housing Regulatory oversight Act 2023 – the consultation closes on 15 May.
By way of reminding, the 2023 Act created a framework for the regulation of supported housing in the UK. It:
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established the concept of a Supported Housing Advisory Panel including a range of sector representatives and advising key stakeholders on "Supported Exempt Accommodation" – i.e. the four classes of Specified Accommodation which are eligible for Housing Benefit.
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required local authorities to have Local Supported Housing Strategies, addressing current and future needs for supported housing in their localities and to which they and other public bodies will have regard when exercising their functions.
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gave the Secretary of State powers to introduce via Regulations:
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national Supported Housing Standards, providing minimum standards for premises and the delivery of "Care Support and Supervision" (aka enhanced housing management services for supported housing tenants, see below).
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licencing requirements requiring those managing Supported Exempt Accommodation to obtain a licence from local housing authorities, to drive compliance with National Supported Housing Standards.
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The Act also specifically required Government to consult prior to making Licensing Regulations. Along with asking questions on the proposed National Housing Standards which would underpin the licencing regime and various other elements - including planning issues and whether to define Care Support and Supervision - this is what the consultation addresses.
National Supported Housing Standards
Key principles:
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Person-centred
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Respectful
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Safe and responsive
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Effective
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Well-led
Standards:
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Person-centred Support Standard
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Empowerment Standard
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Environment Standard
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Staff and Safeguarding Standard
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Local Need Standard
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Responsible Person Standard
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Statement of Purpose Standard
The consultation itself is extensive, with no fewer than 93 questions. However, the consultation paper is relatively digestible and is well worth a read for insight into the Government's direction of travel in the proposed regulation – including licencing of providers – of this important sector.
Because there is so much to consider it is hard to provide a bite sized overview but here are just a few thoughts on areas covered by the consultation – there are many more, from the specifics of the National Standards and related evidence requirements, to remedies available to licencing authorities, to the question of how those authorities will be funded to deliver the licencing and ongoing regulation of licenced schemes.
Extent of application – SEA only
The new National Standards and the licencing regime through which they would be enforced (alongside civil and criminal penalties) will apply only to Supported Exempt Accommodation (SEA) as described above. To the extent that the penalty for not complying with the licencing regime is a loss of HB entitlement for tenants, there is a degree of logic to this approach. However, that is not the only remedy in the proposed system and the downside of this approach is that only part of the overall supported housing ecosystem will be regulated. While this is not surprising, the Act and new regulatory regime underpinning it could in theory be expanded to include regulation of private sector providers of supported housing, including for-profit Registered Providers of affordable housing.
This also opens up a further fundamental question: could Housing Benefit be opened up to apply to any provider genuinely delivering tenancy sustainment for the benefit of supported housing tenants, rather than limiting to those schemes delivered by a not for profit landlord. From a policy perspective there is a debate to be had as to whether the current approach remains the best one or – particularly in a regulated and licence-based environment requiring evidence of compliance with national (and local) standards - whether all tenants of supported housing could have access to housing related benefits to reflect the additional support they receive to enable tenancy sustainment in supported housing, where the cost of those services is reasonable and genuinely enables tenants to access the relevant accommodation. This more wide-ranging approach could result in more holistic regulation and overall better outcomes, a more level playing field for providers and tenants, and simpler (and lower cost) models of delivery that don’t need to "lever in" a not for profit to be viable.
No licence, no HB
The government intends to link the eligibility of Housing Benefit in England to licensing so that residents must be living in licensed supported housing to receive Housing Benefit under the Specified Accommodation rules. For providers of and residents in supported housing this does create something of a cliff-edge regarding the viability of services. Many supported housing models rely on Housing Benefit which is paid above LHA levels. Some of these are funded by investment models but even those which are not will generally require the enhanced benefits to be delivered to make them viable. An unviable scheme is at risk of "closure" i.e. supported housing model being ended and the scheme converted to some other use (e.g. general needs housing, or sold or redeveloped for something non-housing related).
This is not a reason presented against the licencing model, but does illustrate the emphasis needed on issues such as national consistency, mechanisms for appeals/challenges to licencing decisions (and decisions about Local Supported Housing Strategies which will influence them) and the way overlapping regulation such as CQC should impact licences. Schemes subject to closure will place further strain on people unable to continue to access the supported housing that was previously provided and on other services which may then need to step in to fill the gap.
Local Need Standard and national consistency
The consultation sensibly suggests that all SEA residents should have a needs assessment and support plan. These will need to dovetail with admissions and referrals processes (which form part of the proposed Environment Standard) and with the need for high pressure and high speed situations such as domestic violence services to respond to need first and deal with the formalities around assessing the detail of ongoing need second.
It also requires providers to evidence Local Need as part of that standard, with evidence in the form of a provider statement on how they fit into the local ecosystem which has been signed by the local authority in support of that position. This too makes sense but providers will wish to ensure – as with many of the other standards which will apply nationally but be enforced and interpreted locally – a consistent approach across authorities so that evidence accepted in one place should be broadly acceptable everywhere, and authorities are held to objective standards and do not take approaches which politicise the treatment of supported housing locally for e.g. economic reasons.
Responsible Person Standard and Fit and Proper Person Test
These are key elements to the new National Standards and licencing regime as proposed by the consultation. To some extent they overlap with concepts in other regulatory environments such as CQC, with the principle being that "it is crucial that there is a person who is accountable for the service that their organisation provides, and who holds the responsibility of ensuring that the standards are met". There are some questions worth considering around whether regulation is best at organisation level, individual service/scheme level or unit level. An analogy is CQC regulation where there is a Nominated Individual for each regulatory category and a Registered Manager for each service (which may include multiple locations for domiciliary care services). We can see the logic of either or both of (1) a person with organisational level responsibility who is named as Responsible Person or (2) a person with some sensible local responsibility e.g. at local authority level who is so named. Naming a Responsible Person for every scheme, noting that many schemes will be small, may be impractical.
A particularly interesting point around this issue is the statement that "the local authority will also have to consider whether any person associated or formerly associated with the proposed licence holder" has done any of the things which would affect a fit and proper person assessment. This is clearly designed to address the controlling minds behind any property or legal structure as well as those formally participating in the structure.
Defining CSS
The consultation addresses the question of whether we should move to a statutory definition of "Care Support and Supervision" – an expression used in but not defined by the Housing Benefit Regulations and which in practice means "more than normal housing management functions" or "enhanced tenancy sustainment services" – it has nothing to do with the provision of care in the CQC or CSSIW sense, nor does it relate to general support, which is not Housing Benefit eligible.
Our starting point for defining CSS is that there is already a stable set of parameters defining this concept in Tribunal decisions dating back over many years. Tenants, and those providing them with housing, will not expect to see the eligibility of their services eroded through a definitions process. If anything, more services should be eligible (including for example the licence fees for accessing the new system) given the demonstrable savings to other public sector services which good supported housing can generate by meeting essential societal needs.
We also do not think there should be a de-minimis level as to what qualifies as CSS, which is a question asked in the consultation. The Tribunal decisions have sometimes been taken to create one but in our view that is a misinterpretation. In our view the questions should be (1) whether something more than normal housing management is being provided and (2) does the provision of this enable the tenant(s) to sustain their tenancy. If the answer to both is yes then the landlord is providing eligible supported housing and the costs (if reasonably incurred) should be covered by the benefits system. Higher levels of service will naturally attract a higher cost and the veracity of what is provided – but cost is already policed by the Housing Benefit System.
Planning
The consultation discusses the potential utility of a new use class for the sector. Views differ but there is a question of how useful this would be – in our experience planning is a technical issue to address but not a fundamental barrier to delivering and operating supported housing. It also asks whether evidence of planning compliance should form part of the licencing regime. This is not objectionable in principle but could be quite challenging to evidence in practice simply because many supported housing schemes are residential housing with a C3 user and there may be no planning permission evidencing that use. For example, housing built pre 1948 (in many cases even where extensively reconfigured and upgraded) would not have a consent to evidence.
CQC
The consultation asks if a supported housing licence should be withheld where CQC regulated care will provided, but has not yet been registered, or if a licence should withheld where a CQC inadequate rating is achieved. Providers familiar with the CQC regime will no doubt have some concerns about strict tests around things like CQC ratings. Many providers tell us they are rated inadequate for reasons with which they disagree (but are unable to challenge easily because of the highly mechanistic nature of the CQC regulatory process). They can also struggle to secure a reinspection within a sensible timescale where they have remedied perceived issues such that they can be stuck with an inadequate rating for a long time after they have done so. The regulatory and licence regime proposed under the 2023 Act is explicitly about supported housing management and is not intended to duplicate CQC regulation. As such it seems to us at least possible that a provider could have a CQC inadequate rating but continue to provide safe and effective supported housing which meets the needs of residents and is compliant with the regulatory and licence regime proposed under the 2023 Act while it challenges or otherwise resolves matters with CQC.
Conclusion
The consultation is detailed, wide-ranging and hugely important to the supported housing sector. You still have time to offer a view if you wish to offer a contribution to this important, sector shaping set of regulations. Those working in supported housing whether public or private sector, commissioner, landlord or manager, should be considering a response. All supported housing sectors – older people, working-age people with disabilities, short and longer term supported housing models, hostels, crisis intervention services – are all affected. It goes without saying that of course those living in supported housing should be responding, and supported to respond too – they are the people most directly affected by any changes that are introduced.
If you would like to discuss any aspect of the law or any the sector generally we would be delighted to hear from you.
