Exempt Accommodation Criteria and Risks
- 02 Jan
What are the qualifying criteria & what are the risks for agency managed services?
Part of qualifying as an Exempt Accommodation scheme involves the service being provided to be by or on behalf of the Landlord.
So what is the status of a service being provided to Housing Association tenants by a 3rd party agency commissioned by, say, the local authority? Is that "by or on behalf of the Landlord?", and therefore Exempt? What do we do if it isn't?
Danny speaking at our Annual Conference.
We believe that the exempt accommodation qualifying criteria is a real area of concern for landlords and managing agents of agency managed schemes. The owning registered provider (RP) has always secured payment of higher rents and service charges in supported housing tenancies due to the fact that their tenancies are excluded tenancies under Schedule 2 of the Housing Benefit Regulations 2006, and are therefore excluded from referral to the rent service.
This means that Local Authorities have generally just paid the rent and services charges as though the accommodation is exempt accommodation. The Department of Work and Pensions (DWP) have however confirmed that exempt accommodation claimants will have their claims for Housing Benefit administered outside Universal Credit (UC) and will therefore continue to be administered under the existing Housing Benefit (HB) & Consequential Provisions Regulations (CTB) 2006 locally. This basically means nothing changes.
Local Authorities will therefore need to identify exempt accommodation claimants and households prior to the implementation of UC. As it stands, agency managed services would in our view not qualify as exempt accommodation. This is because the landlord is not providing care, support or supervision, nor is it being provided on their behalf. There are options that the owning landlord and the agent can utilise to achieve exempt accommodation qualifying criteria albeit the definitive bulletproof options are not preferred by the owning landlords, i.e. leasing the property to the agent, and the more preferable options, i.e. adjusting management agreements and service delivery models, may well be challenged by Local Authorities and could therefore be subject to further legal test.
With regard to sheltered accommodation we would suggest that the installation of bespoke adaptations and assistive technologies such as 'movement sensors' or an 'OK each day' service would be sufficient to satisfy the exempt accommodation qualifying criteria having regard to the current case law precedent with regard to what would qualify as care, support or supervision, as long as these services were provided by the landlord. Given the current case law precedent we are confident that all sheltered accommodation would qualify as exempt accommodation therefore we only believe that agency managed services are at risk.
The DWP have not responded to the consultation on Housing Benefit reform for supported housing following closure on 9 October 2011. This is perhaps understandable given that we now know that exempt accommodation Housing Benefit claimants will have their claims administered outside UC and therefore locally. In reality nothing will change for exempt accommodation claimants. We now also know that exempt accommodation claimants will not have the Housing Benefit payments included in their gross income with regard to the Benefit cap regulations.
The new UC Regulations 2013 were issued earlier this month, which defines 'exempt accommodation' in Schedule 1 and confirms that exempt accommodation is not included in UC along with other premises such as 'bail hostels', care homes, independent hospitals etc. Exempt accommodation is defined exactly as it is currently in the HB & CTB Regulations 2006 therefore it appears that the DWP have decided NOT to re-define the exempt accommodation qualifying criteria.
This leaves agency managed services vulnerable.
We will be working on producing some guidance and advice on re-drafting management agreements to achieve exempt accommodation qualifying criteria early in the New Year as I am sure this will be an area of great interest for landlord and support providers in agency managed services.
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