The Supported Housing (Regulatory Oversight) Act 2023

Introduction

This blog post was written whilst the Act was still the Supported Housing (Regulatory Oversight) Bill, which has since received Royal Assent. As a consequence the blog post has been edited accordingly (July 2023).

A legislative response to the industrial scale abuse of the Exempt Accommodation rules and enhanced housing benefit has taken a long time to happen, but now we see it in the form of the Supported Housing (Regulatory Oversight) Act. Its 2021 predecessor, the Supported Housing Regulation Bill, also a private members bill, got nowhere because of lack of parliamentary time.

The Supported Housing (Regulatory Oversight) Act unsurprisingly succeeded because it was drafted in the light of the Exempt Accommodation Pilots report and, significantly, the Exempt Accommodation Inquiry Report, it mirrors much of the latter. Those of you who read my blog post on the Exempt Accommodation Inquiry Report will know that I have significant concerns about its conclusions and its failure to adequately grasp what Exempt Accommodation actually is.

Exempt Accommodation is not a dubious sub type of supported housing: the Exempt Accommodation rules are a set of rules that define who’s entitled to enhanced housing benefit. Most socially managed [or allegedly socially managed] supported housing is exempt accommodation.

General Observations

On balance, I think that the Supported Housing (Regulatory Oversight) Act is a great improvement on the Exempt Accommodation Inquiry Report, but the principle that “hard cases make bad law” can still be seen in it, particularly its misplaced focus on “regulation”, when the real problem is the lack of accreditation of supported housing providers at local level and independent oversight of the services they provide.

The idea that all supported Exempt Accommodation providers should register as registered providers, as recommended by the Exempt Accommodation Inquiry Report, is woeful for reasons I focus on in the accompanying briefing on the Exempt Accommodation Project.

There are 4 established regulators in the supported housing ecosystem already:

• The Regulator of Social Housing [England]
• The CIC regulator
• The Charity Commission
• The FCA

If you include the CQC (where personal care is provided in supported housing), then we have 5 regulators. In October 2023 Ofsted will regulate supported housing for 16-17 year olds and the supported housing ecosystem will have 6 regulators.

None of the above have any particular expertise in supported housing and none of them has a monopoly on supported housing providers. In the fight against dodgy supported housing providers and registered providers, the issue is not one of regulation, it is one of accreditation at local level and independent oversight of the services they provide.

The Clauses of the Supported Housing (Regulatory Oversight) Act

So, let’s have a look at the content of the Supported Housing (Regulatory Oversight) Act, including the amendments proposed during its parliamentary journey.

Clause 1: The Creation of an Advisory Panel​

• The Secretary of State will be required to appoint an Advisory Panel.​
• The panel will represent the interests of certain stakeholders including registered providers; local housing authorities; social services authorities and residents.​
• The purpose of the panel is to provide information and advice on issues related to supported exempt accommodation, including anything which the Panel views could have a significant impact on the provision or regulation of supported exempt accommodation.​

Whilst the creation of an Advisory Panel is a good idea in my opinion, I think that its proposed membership is skewed and reflective of the idea that the whole of the supported housing ecosystem is regulated by the Regulator of Social Housing, which isn’t the case, and neither should it be.

It is to be hoped that the membership of the Advisory Panel will be broadened to include a more representative, dare I say democratic, representation of the supported housing ecosystem to include charities, CICs, other voluntary agencies and the private sector.

Clauses 10 & 11 as amended (see below) provide for the creation of a national supported housing regulator. This regulator should be a new body with specific expertise in supported housing and the scope of which should include all supported housing providers, irrespective of their legal identity.

Clause 2: Local Supported Housing Strategies​

• Local housing authorities will be required to carry out a review of the supported exempt accommodation in their districts and publish a “supported housing strategy” for the provision of supported exempt accommodation. ​
• A supported housing strategy must include a local housing authority’s assessment of supply and demand for supported Exempt Accommodation in its district, and such other matters as may be specified by the Secretary of State in regulations.​

This is actually a requirement of the National Statement of Expectations for Supported Housing. It is clearly a good idea for local authorities to have a supported housing strategy based on a knowledge of existing services mapped against supply and demand.

LA control over which organisations can set up supported housing in their areas is essential. The Exempt Accommodation Pilots led to the development of local authority hubs/gateways through which all intending supported housing providers must apply via a Supported Exempt Accommodation application process. The hub/gateway model is becoming more commonplace now, although not all local authorities have them yet.

Non-commissioned Supported housing providers, particularly “investor-led” and “property-led” providers whose primary purpose seems often to be making money at the expense of the supported housing ecosystem, and the people who depend on it, take note. The recent disasters associated with Home REIT and associated providers such as Lotus Sanctuary are a case in point.

I am continually asked by non-commissioned supported housing providers and their partners to help them to find a registered provider to work with, or to assist them with enhanced housing benefit claims. My response is always a firm “no”, unless a local authority at commissioning level gives me a green light to proceed. 

By “commissioning level” I mean the local government departments and other statutory agencies (social care commissioners, supported housing commissioners, revenues and benefits teams, the NHS and other statutory agencies with an interest in supported housing). I do not mean Homelessness/Housing Options teams as currently constituted. However, it’s important that people with additional needs who present as homeless are assessed properly and routed to supported housing, not temporary accommodation. (More on this in the commentary on Clause 6 below).

Clause 3: National Supported Housing Standards​

• This will give the Secretary of State new powers to prepare and publish “National Supporting Housing Standards” for England.​
• This will set minimum standards in respect of the type or condition of premises used for the provision of supported Exempt Accommodation or the provision of care, support or supervision in supported exempt accommodation​.

There have been several amendments to this clause as follows:

Amendment 1 tabled by Clive Betts MP would give local housing authorities the power to introduce a scheme to enforce the National Supported Housing Standards such as that described in clause 4 and 5 below. For this to be workable there would need to be additional funding made available to LAs.

Amendments 2 and 4 tabled by Clive Betts would require Secretary of State to produce a progress report after one year if certain powers are yet to be exercised. By which I mean the powers to prepare and publish “National Supported Housing Standards” and to make provision about the sharing of information relating to supported exempt accommodation.

It is essential that these National Supported Housing Standards are devised by a representative group of agencies with a full understanding of the supported housing ecosystem. The current proposed membership of the Advisory Panel referred to in Clause 1 will not be sufficient. Clearly, “local housing authorities; social services authorities and residents” are essential parties to this Panel, but it should also include independent thought leaders in supported housing who do not have bias towards any specific part of the supported housing ecosystem such as the Regulator of Social Housing or related agencies.​

Clauses 4 & 5: Licensing​

• Clause 4 would give the Secretary of State power to make regulations requiring people managing supported Exempt Accommodation to obtain and comply with a license issued by the relevant local housing authority.  ​
• Clause 5 sets out the range of issues which licensing regulations may cover, including: enforcement, consequences of non-compliance, exemptions and fees, restrictions and the areas that a licensing scheme should cover.​

There are already number of “selective licensing schemes” being piloted or considered by local authorities.

The Supported Housing (Regulatory Oversight) Act identifies that people who apply for a license to operate supported housing must be “fit and proper persons”. A failure to meet whatever that means will result in the refusal of a license.

There are a significant number of areas that would fall within the scope of a selective licensing scheme:

• The standard of accommodation.
• The use of accommodation.
• Carrying out of assessments of the needs of residents (or potential residents) and relating to the conduct of such assessments.
• The provision of care, support or supervision.
• Compliance with National Supported Housing Standards (whenever published)

The Act provides for penalties to be applied to supported housing providers and the people who run them.

A license can be revoked and a fine levied where a supported housing provider or a person who controls it commits a relevant housing offence for the purposes of section 249A of the Housing Act 2004.

A supported housing provider or the person who controls it may be subject to a banning order as provided for in Chapters 2 and 3 of Part 2 of the Housing and Planning Act 2016. This includes being recorded on a database of “rogue landlords” and requiring the repayment of rents received whilst in breach of a licensing requirement.

Clause 6: Consultation​

• The Secretary of State must consult statutory consultees before exercising the power to make licensing regulations.​
• The statutory consultees listed are: Local Government Association, National Housing Federation and the Regulator of Social Housing. ​

Amendments to the Act by its sponsor/author Bob Blackman MP propose that local authorities be identified as “statutory consultees” on the Bill on licensing regulations and the National Supported Housing Standards in place of the Local Government Association.

Again, the choice of the Regulator of Social Housing and the National Housing Federation limits the scope and expertise of the “statutory consultees”. This doesn’t mean that they shouldn’t be included, but it is essential that this mechanism has a wider set of interests other than just agencies that are regulated by the Regulator of Social Housing.

Amendment 3 tabled by Clive Betts MP ensures that assessing the needs of persons who are residents/potential residents is a condition that may be attached to a license to operate supported housing. The assumption is that LAs would be responsible for such assessments via a single hub or gateway through which all supported housing referrals should be routed. This would give LAs control over who becomes a supported housing resident in their area as well as preventing providers offering accommodation to “self-referrals” and people from other geographical areas. Presumably, different arrangements might be required for people fleeing domestic violence and abuse, for example.

It is also possible that supported housing providers may be responsible for undertaking needs assessments within a local authority approved framework.

The single hub/gateway arrangement, which some LAs already implement, is a by-product of the Exempt Accommodation Pilots and should also contribute to LAs’ requirements to balance need and demand within their local supported housing ecosystem.

However, there is a structural problem at local authority level with Homelessness/Housing Options teams not being part of local commissioning infrastructure. These teams have a statutory obligation to house people, the great majority of whom have additional needs, so there is an unmanaged overlap between them and their commissioning colleagues. The needs assessment process could therefore be an important part of local infrastructure, whether conducted by local authorities or supported housing providers, in ensuring that homeless people with additional needs are routed into supported housing rather than temporary accommodation.

Clause 7: Local Housing Authority Functions ​

• A local housing authority must, in the exercise of its functions under licensing regulations, have regard to— (a) National Supported Housing Standards (if any), and 10 (b) any guidance issued by the Secretary of State for the purposes of this section.​

This section is self-explanatory, and the missing part is the National Supported Housing Standards document, with which supported housing providers must comply, as described in Clause 3 (above).

Clause 8: Planning​

• This places a duty on the Secretary of State to review the effect of licensing requirements within three years of regulations being made.​
• Following such a review, the Secretary of State would be required to consider whether to specify exempt supported accommodation as a use-class which would require planning in certain circumstances​.

This clause needs to be read in conjunction with clauses 4, 5, 6, & 7 above.

Currently the planning use class position for supported housing (remember that pretty much all socially managed supported housing is “exempt supported accommodation”) is confused.

Supported living (i.e. where a single person or a couple receives support in their own home) is subject to use class C3(a) and supported housing where up to 6 people live together as a single household is subject to use class C3(b). See here.

It is therefore the case that supported housing schemes of 7 or more people in shared accommodation fall outside of the planning use classes. If the Supported Housing (Regulatory Oversight) Act provides an opportunity to sensibly rationalise the planning use classes for supported housing, then this would be a good thing.

Clause 9: Homelessness​

This clause would ensure that where someone chooses to leave exempt supported accommodation due to poor conditions or care, and the standards within the accommodation do not meet the National Supported Housing Standards, they will not be classed as “intentionally homeless”.​

This clearly a good thing. It is nothing short of disgraceful that people with additional needs are faced with a Catch 22 situation where they’re forced to continue to live in poor conditions in so-called supported housing, or to live on the streets because they’re “intentionally homeless”, having refused to live in poor conditions in so-called supported housing that takes their enhanced housing benefit entitlements in exchange for poor accommodation with nil or negligible support.

Clauses 10 & 11: Information Sharing About Exempt Accommodation​

• Gives the Secretary of State power to make regulations relating to the sharing of information on Exempt Accommodation by a local authority; a registered provider of social housing; the Regulator of Social Housing and the Secretary of State.​
• Provides that certain information obtained under specified legislation relating to housing benefit or council tax, can be used by a local housing authority for any purpose connected with the exercise of any of its functions under the Act, or otherwise relating to specified exempt accommodation, or for the purposes of investigating whether any offence has been committed by virtue of the Act.​

Amendment NC1 tabled by Clive Betts MP would require the Secretary of State to consult on the establishment of a national regulator of supported exempt accommodation. This might be “an existing public authority”.

As with some other parts of the Supported Housing (Regulatory Oversight) Act, the focus here is too limited to the Regulator of Social Housing and Regulator of Social Housing regulated agencies, which by no means represent the totality of the supported housing sector. This limited scope excludes charities, CICs, other forms of voluntary agency and, crucially, the private sector. As I have observed above, the same criticism can be applied to the membership of the Advisory Panel under clause 1 (above).

Clive Betts’ amendment NC1, however, gives us the opportunity to establish a new “national regulator of supported exempt accommodation”. This agency should specifically not be the Regulator of Social Housing, the Charity Commission, the CIC regulator, the FCA or the CQC, none of which really understand supported housing and none of which have a monopoly on the regulation of supported housing providers.

Amendment NC2 by Kate Hollern MP states that all residents of supported housing should be provided by the local authority with a Charter of Rights that should include:

• A statement of the rights of residents of supported exempt accommodation.
• A statement of the responsibilities of providers of supported exempt accommodation.
• Information about support services for residents of supported exempted accommodation.

Rather than reinvent the wheel on this, why not simply adopt Spring Housing’s “Charter of Rights for Supported Exempt Accommodation” residents?

Conclusions

This Act has some shortcomings, however, it’s a very big step in the right direction towards ridding supported housing of the parasites that infest it in the guise of certain supported housing providers, RPs, developers and investors that are interested in financially abusing people with additional needs in return for shoddy properties and negligible or no support.

The Act provides for local infrastructure to manage supported housing, including licensing powers. It prescribes a set of national standards for supported housing, which are well overdue, although these should be informed by a wider set of interests than has been proposed.

The Act has an unnecessary preoccupation with supported housing providers that are regulated by the Regulator of Social Housing, and this comes at the expense of other non-profit supported housing providers and of the private sector. We need an overarching piece of legislation that captures the totality of the supported housing ecosystem. The future regulator of supported housing must not be an existing regulator.

The Act doesn’t challenge the status quo of the exempt accommodation rules, which should be abolished, and the local authority subsidy rules, which should be changed to stop local authorities favouring registered providers, for financial reasons, as supported housing landlords.

The Act also doesn’t specifically address the confusion at local authority level where people with additional needs are routinely routed into temporary accommodation by Homelessness/Housing Options teams when they should be routed to supported housing. However, the amendments to Clauses 4 & 5 that require a local authority (or supported housing provider on its behalf) to carry out needs assessments of people in the context of supported housing may be a means by which this anomaly is resolved.

The Act rightly emphasis the rights of people with additional needs by requiring a Charter of Rights for residents of supported housing. It also requires that people who leave poor quality supported housing should not be declared to be “intentionally homeless”.

How We Can Help You

We are currently offering Board, SMT and staff team briefings to supported housing providers, registered providers, social impact investment agencies and the statutory sector on the implications of the Supported Housing (Regulatory Oversight) Act. These can be delivered face to face or remotely and are based on an agreed brief with each agency. Usually, they are 2–4-hour events, depending on what your organisation requires.

Please call 0800 002 9467 to discuss this.

Michael Patterson

April 2023