Spotlight on: Supported and Temporary Accommodation

Introduction

As outlined in our article introducing the Renters (Reform) Bill, if the Bill is enacted it will bring about the most significant changes to residential tenancy law in a generation. The Bill covers a lot of ground and will affect different categories and types of residential landlord in different ways.

The purpose of this article is to shine a spotlight on the changes that the Government proposes to the law relating to supported and temporary accommodation.

The Bill describes these as follows:

• Supported housing is accommodation that is provided in conjunction with housing-related support to groups of people who require help, either to live independently or to move towards sustaining a tenancy in mainstream housing.
• Temporary Accommodation is accommodation provided in connection with a local authority’s statutory homelessness obligations under Part VII of the Housing Act 1996 (which, amongst other things, sets out duties and powers for local housing authorities to secure temporary accommodation for people presenting as homeless).

In these areas, many of the Bill’s proposals are more of a starter for ten than fully-developed policy. As will be seen, particularly in relation to changes for supported housing accommodation, much of the detail is still to be worked through and developed and the Bill seeks to set out a framework for the further work to be done.

Also, some of the changes are what the Government calls “consequential amendments”, ie. changes to existing legislation that are required to reflect the fact that assured shorthold tenancies, fixed term assured tenancies and section 21 notices are to be abolished. Those amendments are not new policy, they are just legislative ‘I’ dotting’ and ‘t’ crossing to make sure that the law will work coherently if the Bill gets enacted.

Changes proposed by the Bill

Let’s look at the changes that are proposed for supported housing and temporary accommodation separately.

Supported Housing

Private rented sector database and landlord redress scheme

The Bill’s Explanatory Notes say that the Government intend to use regulations to clarify the scope of these new measures “and to include, exclude or make special arrangements for niche tenures such as purpose-built student accommodation, temporary accommodation and supported housing”. It therefore remains to be seen whether, and to what extent, temporary accommodation or supported housing providers will be affected by these new regimes.

Government policy on supported and temporary accommodation

Part 4 of the Bill is called “supported and temporary accommodation”. It is where you would expect the Government’s proposals on these types of accommodation to be found.

However, the Government describes Part 4 of the Bill as a “placeholder” at present, intended to allow for further amendments to the Bill as it passes through parliament.

At present, Part 4 contains one clause (clause 63) that would require the Secretary of State to prepare a report within one year of the Bill being enacted, setting out Government policy on safety and quality standards in supported and temporary accommodation, and how those new standards will be developed, delivered, overseen and enforced. This is clearly linked to changes that may be introduced by the Supported Housing (Regulatory Oversight) Bill, which will give local authorities enforcement powers over poor quality supported housing through a new licensing scheme, and introduce new National Supported Housing Standards.

New grounds for possession

The Bill introduces new grounds for possession specifically for use in the supported housing context, and so clearly envisages that residents will be housed in supported accommodation under the new periodic assured tenancies. The proposed new grounds are as follows:

• Ground 2ZA – this new possession ground would be available to private registered providers of social housing and supported accommodation providers. Where a supported accommodation landlord is itself a tenant under a lease and that lease is to come to an end, this new ground will enable the supported accommodation landlord to obtain possession from the occupiers to enable the property handed back to the superior landlord with vacant possession. No such ground is currently available, which can expose supported accommodation providers to legal risk through not being able to comply with their lease obligations when their own leases come to an end. The proposed notice period is two months.
• Ground 2ZB – this is another new ground for possession. It is intended to apply in circumstances similar to those envisaged by Ground 2ZA, but in this scenario the superior landlord inherits assured tenancies following the expiry of a lease that was held by a supported accommodation provider or a registered provider. This ground allows the superior landlord to be able to end the assured tenancies that are inherited so the superior landlord can get the property back vacant. The proposed notice period is two months.
• Ground 5E – this mandatory new ground would apply where a property that is usually intended to be used as supported housing is temporarily used for another purpose. This ground enables non-supported assured tenancies to be ended so that the property can be re-let as supported accommodation. It is intended to give supported accommodation landlords greater flexibility and control over the use of their properties to reflect changes in business need or demand for supported housing. The proposed notice period is four weeks.
• Ground 5F – this new mandatory ground is only available to providers of supported housing accommodation. It aims to address a number of commonly-encountered situations where supported housing tenancies may need to be brought to an end. Under ground 5F, the court will be required to grant the landlord possession if the tenancy was originally granted as supported accommodation and the landlord can prove that any of the following conditions apply:
  • The accommodation was provided as “move on” accommodation for a specific period, and that period (or any extensions to it) have come to an end;
  • Third party support services were provided to the tenant and the services have either ended or the support provider is failing to fulfil their obligations to provide support. Where the landlord is responsible for the commissioning of the support, it will be expected to have made reasonable endeavours to put alternative support arrangements in place before seeking possession from the tenant under this ground;
  • The tenant’s accommodation or support services were funded by someone other than the landlord or tenant (eg. the NHS or a local authority) and the funding has ended or dropped away, such that it isn’t reasonable for the landlord to continue providing the placement. Again, where the landlord is responsible for commissioning the support, it will need to have made reasonable endeavours to secure alternative support/funding to be able to rely on this ground;
  • The tenant’s support under the supported accommodation arrangement is no longer appropriate because either:
    • the support exceeds the tenant’s requirements for care, support or supervision (eg. the tenant’s needs have decreased);
    • the tenant does not require any additional support; or
    • the support does not meet the tenant’s requirements for care, support or supervision;
  • The property has physical features or adaptations designed to support independent living and the tenant does not now need those features; or
  • The property in question is physically unsuitable for the tenant due to their particular care, support or supervision needs.
• Ground 18 – this is a new discretionary ground for possession that is available in a case where a tenancy is granted as supported accommodation and the tenant unreasonably fails to engage with support services. The proposed notice period for Grounds 5F and 18 is four weeks.

The Bill defines the type of landlords who are eligible to use Grounds 5F and 18. The definition includes accommodation let by housing associations, PRPSHs, registered charities and voluntary organisations, where the tenant receives care, support or supervision (provided either directly by the landlord, by a third party acting on behalf of the landlord, or – in the case of managed accommodation – through arrangements put in place independently of the landlord, eg. by the local authority).

Temporary Accommodation

Unlike the proposals relating to supported accommodation, the changes proposed in relation to temporary accommodation feel much less like the implementation of a policy shift, and are for the most part changes required to make Part 7 of the Housing Act 1996 work if assured shorthold tenancies, fixed term assured tenancies and section 21 notices are abolished.

The proposed changes to the Housing Act 1996 that are of substance are as follows:

• Section 193C will be amended so that if a local housing authority serves notice under s193B(2) (given where an applicant has deliberately and unreasonably refused to co-operate) this may end the relief or prevention duty under s193B, but will have no impact on the main homelessness duty being owed;
• Section 193(6)(cc), which provides that a local housing authority can discharge the main housing duty if the applicant accepts an offer of a fully assured tenancy from a private landlord, will be repealed. Discharge of the duty will now be governed by sections 193(7AA) – (7AC);
• Section 193(7AC) will be amended to remove the requirement that a private rented sector offer must be an assured shorthold tenancy of at least 12 months, as ASTs will no longer be able to be granted;
• The “reapplication duty” in Section 195A (ie. the duty to offer accommodation following re-application after a private sector offer) will be repealed. This duty was originally introduced to address concerns that if a homelessness applicant accepted a private sector rented offer, they may then become homeless again within two years but be treated as not having a priority need. The “reapplication duty” ensures that interim accommodation will be made available for the applicant whether they have a priority need or not. Under the Bill, the “reapplication duty” will be repealed to reflect the fact that it will no longer be needed because of the removal of section 21 and that greater security of tenure will be the norm. At the point an applicant re-applies, the local housing authority will owe whichever is applicable of the prevention, relief, and main duties; and
• To reflect the abolition of section 21 and the greater security of tenure that the Bill will deliver, Section 175(5) will be repealed. This means that a local housing authority will not have to treat an applicant as threatened with homelessness if they have been served with a valid section 21 notice that expires in 56 days or less and they have no other accommodation available.

The Bill introduces a new possession ground (ground 5G) into the Housing Act 1988, which is relevant to temporary accommodation. It will be a mandatory ground available to a landlord, in circumstances where a tenancy was granted for the purposes of assisting a local housing authority to meet the main homelessness duty under section 193 of the Housing Act 1996, and the authority gives notice that the tenancy is no longer required. At the point that the landlord is given such notice by the local housing authority, the landlord will have a 12 month window to serve notice on the tenant under ground 5G. This ground will apply only in relation to the main s193 housing duty; it will not be available where accommodation is provided in connection with the authority’s interim, relief or prevention duties.

The minimum notice period under this ground will be four weeks.

Comment

The provisions relating to supported and temporary accommodation are amongst the more complex clauses in the Bill.

The new possession grounds are intended to equip landlords with the flexibility and tools they need to ensure that they can recover possession to allow sufficient accommodation to be made available for use as supported or temporary housing.

Otherwise, the Bill is light on details regarding the Government’s plans for the supply and regulation of supported accommodation, and it seems these will follow within the 12 months following enactment of the Bill. The amendments to Part 7 of the Housing Act 1996, which is the main statutory code governing local housing authorities’ homelessness duties and powers, are largely intended to reflect the changes to housing tenure and the abolition of section 21 and fixed term assured tenancies.

So what’s next?

This is the first stage in the Bill’s journey. We can expect the Government to issue further detail as the Bill progresses and we will need to wait and see how the Bill’s provisions relating to supported and temporary accommodation are amended. However, the overall direction of travel seems relatively clear.

If you wish to discuss this further, please contact Kate Hicks, Senior Associate or Steve Eccles, Partner.

If you’ve missed any of the previous Spotlights in this series, you can find them here:

Spotlight on: an overview of the Bill

Spotlight on: New grounds for possession