Housing Associations and social care

The role of Housing Associations in social care and inclusion revolves around their dual status as providers of accommodation as well as domiciliary care. This capacity (not all housing associations provide care as well as a place to live) makes the concept perfect for maximising the autonomy and independence of people who need a little help, but not a lot. This is called supported living, or assisted housing. The government is changing the whole Housing Benefit system from 2003 to take account of this model of care suiting its aims to modernise social care in the community.

Of course, plenty of housing associations also use their property to provide formal residential care, which will be registered, and in this regard, the services will be the more traditional 24 hour care model which one would find in a Care Home. In this role, the housing association is not the client’s landlord, but the provider of a service to the local authority or other purchaser, for the benefit of the client in question. This means that the service sometimes amounts to the provision of board (meals) and personal care together with accommodation, which is why this form of service provision has had to be registered under the residential care home part of the 1984 Registered Homes Act.

It is theoretically possible in legal terms to provide services under contract to a local authority, together with accommodation, which does not have to be in a registered setting. For this to be lawful, it would have to exclude either board (meals) or any personal care. ‘Personal care’ has a very wide meaning in law, and does not inherently relate to hands on assistance with intimate bodily functions; it is enough to be providing emotional support and supervision, to count as a provider of personal care at the moment. (This will change subtly in April 2002, when although the scope of ‘personal care’ will remain the same, the definition of a registrable care home will exclude any facility which does not provide assistance with bodily functions). It is therefore very hard to be in the care business and not provide compulsorily registrable care, if one is contracting with local authorities for the clients’ places. In the mid 1990s, asylum seekers who were provided with bed and breakfast accommodation under contract between the authority and the hotels, but no personal care, are an example of lawful s26 National Assistance Act arrangements in unregistered settings.

The site topics which will be relevant to Housing Associations engaged in registered care provision will be CommissioningAssessmentCare PlanningResidential CareCompetitionAdult ProtectionChargingFinancial Protective Powers and Registration – in fact all the topics which a Care Home Provider would need to know about. Those HAs which are acting as landlords for less dependent adults will need, in addition, to know about the Supporting People Initiative, Domiciliary CareBenefits and Incapacity, if some of their tenants might lack the mental capacity to understand the basics of a tenancy agreement.

Both sorts of provider need to understand the implications of the Human Rights Act, because it applies to anyone who counts for these purposes as a public authority. Two cases so far, one involving a nationwide Housing Association, (Servite Houses) and the other the Leonard Cheshire organisation, have found that residential care providers will not count as public authorities for the purposes of a judicial review challenge or a human rights challenge. On the other hand, it is likely that domiciliary care providers (ie all housing associations which provide unregistered care direct to their tenants) will be able to be sued by the client for a breach of human rights.


Background to Housing Associations’ status and functions


Housing Associations are usually charities but they may be an industrial and provident society, or a company which does not trade for profit. Some are fully mutual co-operative organisations. There are 4000 in the UK and over 2200 are registered with the Housing Corporation as Registered Social Landlords who between them have acquired 1.5 million dwellings from local authorities.


The Corporation provides funding to RSLs and regulates them with regard to governance, finance and housing management. There are statutory provisions (see s170 of the 1996 Housing Act) for co-operation with the local authority to such extent as is reasonable, in offering accommodation to people with priority on the authority’s housing register. The normal form for this co-operation is via a nomination agreement for tenants from the housing register. Rental income is their main income, other than funding through the Housing Corporation. RSLs are expected to provide assured tenancies of a periodic nature of which possession can only be achieved on discretionary grounds (ie if the county court thinks it is reasonable). But assured shortholds are legitimate too, if the provision of the accommodation is to be temporary, as was the situation with the tenant in the Poplar Housing Association case (see below), because her case was under investigation for intentional homelessness.


Nationwide, RSLs commonly provide the bulk of ‘interim accommodation’ under s188 of the 1996 Act while the priority of a homeless applicant is being determined, and if they are thought to be intentionally homeless or found to be so. After the formal decision is made by the authority, as to those questions, notification is passed from the authority to the association to recover possession. The association therefore acts as a conduit for the authority’s decision as to the continuation or otherwise of a duty owed to the client.


In the Poplar Housing Association case, it was held that a Housing Association could count as a public authority, notwithstanding its private law origins, for the purposes of owing obligations under the Human Rights Act.


The Association in question had been set up by Tower Hamlets. It had been a condition of Tower Hamlets’ receiving funding from the government’s Estates Renewal Challenge Fund that it would hand over the homes to an HA, assuming a majority vote in favour by the tenants. No payment was involved for the properties transferred because negative value was assumed, given their state of repair. Five of the HA’s board members were elected members of Tower Hamlets and it was subject to the guidance of Tower Hamlets as to the manner in which it acted towards the tenant. The accommodation was owned by the local authority originally but was transferred to the RSL while the duty to the tenant to provide temporary accommodation was still ongoing.


The Court decided that housing associations as a class are not standard (‘pure’ or ‘obvious’ public authorities) for s6 of the Human Rights Act. They can only be so, if they are engaged in a particular function which is ‘public’. Section 6 HRA requires a generous interpretation of who is to be ‘public’, but it was clearly inspired by the approach of the courts in identifying bodies and activities subject to judicial review. Functions of a particular type can make a body amenable to judicial review, but we would suggest that they are less likely to do so where contract has intervened between the ultimate client and the housing provider, or between the public authority and the provider (as opposed to statutory delegation, for instance). The transfer of public functions does not happen automatically, when housing stock is transferred to a housing association. The Housing Association is merely the conduit through which an LA seeks to perform the housing duties it still bears. The HA’s provision of accommodation for rent paid by a private individual is not, without more, a public function. Merely acting ‘in the public interest’ does not point to the body being a public authority. Even if a private body performs functions which would be considered public if the same functions were performed by a public body, those acts can still remain private and not amenable to the Act.


The Court suggested that what can make an act which would be private into a public act is either a feature or a combination of features which impose a public character or stamp on the act. Statutory authority for what is being done can help. So can the extent of control over the activity, by another body which is public. This particular housing association was so closely enmeshed in the affairs of the authority (Tower Hamlets) that it passed the threshold, but the Court commented that the position would not necessarily be the same if the tenant had been a secure tenant of the association. She had only been given temporary accommodation pending a determination of her status as an applicant for accommodation, under the 1996 Housing Act.


HA liability for actual breach of human rights?


In relation to applying to court for possession as against the tenant, the HA was accused of breach of article 8 of the Convention – inadequate respect for private life and the tenant’s home.


The Court concluded that s21 of the 1988 Housing Act, which allows for mandatory possession so long as notice has been given properly, was not a disproportionate interference with article 8 rights, because it was necessary in a democratic society to provide for the regaining of possession of property let temporarily. The mandatory basis for possession had plainly been the will of Parliament after much careful consideration of housing policy. In the Court’s opinion, it is not inherently unreasonable to leave intentionally homeless people to their own devices; it is open to a State to take that policy choice, without it being a breach of article 8.


The Court accepted that if it had found the s21 provisions for mandatory possession to be incompatible with Convention rights, it would have been obliged to try to stretch the meaning of the section to achieve a compatible interpretation. But stretching is one thing; reading in words which would have the effect that possession could only be granted “if it is reasonable to do so” might appear modest, but it would defeat Parliament’s original objective of providing certainty, and would involve the courts in legislating, and not merely interpretation.


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