A new guidance note has been published by the NHS, which will be of particular interest to all NHS estate owners, who are or may in the future, dispose of surplus land or properties. The guidance note sets out in detail the policy announcement made back in 2018, when the government stated their intention to give NHS staff the right for first refusal on affordable housing on land disposed of by NHS estate owners. This article will highlight some of the key provisions of this new guidance note, the terms of eligibility and finally, how Bevan Brittan can assist NHS estate owners to implement this policy.

Key provisions

  • The note outlines that NHS estate owners are responsible for implementing this policy and are specifically encouraged to work with and liaise as much as possible with local planning authorities and developers in the area;
  • The policy’s objective is to give NHS staff the right to acquire affordable housing in a new development site built on land previously owned by an NHS estate owner. It is designed as a means to attract and retain staff into the profession
  • In order to ensure that the above right is protected, the sale contract will have to document the rights of the NHS staff to any affordable housing which may be constructed on the disposal site. It may be that a combination of contractual rights and covenants in the Transfer are used to be protect NHS’ position.
  • There is no fixed strategy being imposed on estate owners to implement this policy and in fact, the note specifically highlights that it will be up to the estate owners to determine the most suitable way to deliver this policy. A key consideration will be how the NHS estate owner wishes to allocate its method of first refusal rights. For example, will the policy prioritise staff groups with high vacancies, particular bands of professions or staff with dependents? We would recommend that advice is obtained from a solicitor specialising in employment, to ensure any policy complies will all the rules and regulations.
  • It is recommended that estate owners should familiarise themselves with the affordable housing policies of the different tiers of local government;
  • The note suggests that estate owners should liaise with their HR department so that they have a comprehensive understanding of their recruitment needs and challenges and adapt their strategy accordingly so that the proposed benefits are maximised as much as possible.
  • NHS estate owners will need to consider obtaining tax advice to ensure that the any proposed offers do not inadvertently affect staff tax.
  • NHS estate owners should consider taking into account whether there is a requirement for key-worker housing / housing managed for the trust or whether other trusts within your neighbouring Sustainability and Transformation Partnership/ Integrated Care System have a requirement for housing.

Who is eligible to acquire the benefit of the right for first refusal?

It is important to stress that the note stipulates that the offer of first refusal is intended to benefit NHS staff, who are employed on NHS terms and conditions, rather than public-sector employees who are providing frontline services.

How can Bevan Brittan help?

Bevan Brittan’s experienced team can provide assistance to NHS bodies at every stage of the implementation of this policy. Firstly, our team of planning and local government experts can assist with any enquiries that you might have in relation to the planning process, proposed section 106 agreements and affordable housing policies. Our property team can draft suitable and appropriate clauses into the sale contract, documenting the right and providing reassurance to all parties. Finally, our strong property litigation team can be called upon in the event that developers are not complying with their contractual obligations and pressure needs to be applied.

The guidance note, which should be used to supplement this article, can be found here.

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