Defining specified accommodation
Examining the legal definitions, case law and guidance to help advisers establish whether a client’s housing is likely to be specified accommodation.
Why is this important?
Whether or not the housing is specified will be crucial in deciding whether your client can seek housing costs via Housing Benefit (HB) or Universal Credit (UC).
This is because there are certain types of accommodation that cannot be claimed for under UC and must be claimed under HB, even when the client is already on UC.
It is therefore useful for advisers to be able to identify what this accommodation is so that clients can make this choice without delay.
It’s also an important part of advising whether housing costs could be a ‘trigger’ to claiming UC, as we’ll explore here.
What housing is not covered by UC?
Universal Credit will not award the housing costs element (HCE) if the client is living in temporary accommodation or ‘specified accommodation’ of which there are 4 types:
- exempt accommodation
- supported/managed accommodation
- domestic abuse refuges¹
- certain local authority hostels
Clients in this position can’t get their housing costs covered by UC — they would need to do so through HB instead (if they’re eligible), even in cases where they have already claimed UC.
If the client tries to claim housing costs under UC for any of these types of accommodation it will be refused.²
This article will focus on the first two categories, exempt and supported accommodation, looking at what they are and how advisers may establish whether they apply.
Note: If advisers wish to know more about eligibility under the other housing types (temporary accommodation, domestic abuse refuges and local authority hostels) detail is available in the Housing Benefit guidance for supported housing claims, which we will be referring to frequently throughout this article.
What are the benefits of being classed as living in exempt or supported accommodation?
The Housing Benefit awarded for these types of accommodation doesn’t count towards the benefit cap. With exempt accommodation clients are also not subject to an under occupancy deduction (‘spare room subsidy/bedroom tax’).³
Knowing whether accommodation falls under this rule can also be very important in UC ‘trigger’ cases, for example:
Your client is on Tax Credits and Housing Benefit and will be moving into a different local authority. Managed migration has not yet been rolled out in their area. They want to know if they will need to claim Universal Credit in order to get help with rent.
If they are moving into specified accommodation then they can claim Housing Benefit in the new area and stay on their current benefits.
Whereas, if it’s not specified accommodation, then they cannot continue to get Housing Benefit so may decide to claim Universal Credit and move off legacy benefits instead.
It may also be the difference between keeping or losing a transitional element.
Your client is already on Universal Credit with some form of transitional protection, such as the Severe Disability Premium (SDP) element or the managed migration element. They move house to somewhere more expensive.
If they have moved to specified accommodation then they can claim Housing Benefit for it and their transitional element will stay the same.
But, if they have moved somewhere that isn’t specified, then their housing element on UC will increase, which in turn could reduce their transitional element.⁴
We’ll be looking more at the role of changes of circumstances in our FAQs at the end of this article.
Definitions
Turning now to our two types of accommodation and what they are defined as in law.⁵
Exempt accommodation is either a resettlement place⁶ or when clients rent from a non-profit landlord and are provided with care, support or supervision by the landlord or someone on their behalf.
Supported/managed accommodation is when clients rent from a non-profit landlord and are provided with care, support or supervision and were admitted to the accommodation to meet that need.
The main difference for advisers to note, between supported and exempt accommodation, is that supported accommodation involves being admitted for a need and allows for situations where services provided are done by anyone (not just the landlord or someone acting on their behalf).⁷
What is a “non-profit landlord”?
To be classed as either exempt or supported accommodation, the landlord must be a non-profit.
For exempt this is⁸
- a non-metropolitan county council in England
- a housing association
- a registered charity, or
- a voluntary organisation
For supported it’s⁹
- a county council in England
- a housing association
- a registered charity, or
- a voluntary organisation
Notice that it can never be a private landlord, regardless of the level of support that the client receives at the address.
How do I know if it’s a “non-metropolitan council”?
The classification of councils is a complex area.
Exempt accommodation takes its definition of non-metropolitan council from section 1 of the Local Government Act 1972 and then part 2 of Schedule 1 of the act which lists the relevant councils.
However, we know that this list is no longer accurate — some of those included no longer exist or have changed structure.
Councils will hold this information themselves so we would recommend, if clients aren’t sure, to approach their local authority and explain that they want to know whether they are non-metropolitan for the purposes of establishing exempt accommodation.
“Provided with care, support or supervision”
Being provided with care, support or supervision are necessary for both exempt and supported accommodation. Exactly what that means is a frequent issue for advisers so we’re going to look at what is taken into account which can be used as a guideline.
What is “care, support or supervision”?
‘Care’, ‘support’ and ‘supervision’ have not been explicitly defined so have their ordinary literal meaning¹⁰, but we do have case law that has set a precedent.
The care, support or supervision must relate to the tenant, not the property.
For example someone may live somewhere with 24/7 supervision in the form of round-the-clock security guards but, if their role is to supervise tenants purely to prevent damage to the accommodation, then that will not count (paragraph 155, example 6 of the Housing Benefit guidance).
‘Support’ can be seen as the ‘giving of advice and assistance to a claimant in coping with the practicalities of his life, and in particular his occupation of the property’.¹¹
General housing management, such as safety checks and regular maintenance or repair, is not in itself sufficient. However, if the tenancy agreement imposes more onerous terms (or the landlord does more voluntarily) then this could amount to support.
Examples may include when a landlord routinely repairs damage caused by the tenant, redecorates the tenant’s own room or routinely carries out works in a manner designed specifically to take into account the tenant’s disabilities.¹²
It’s also important to consider where someone’s care is coming from. If the client had support before they lived at the address, and would take it with them when they leave, then this sounds more like ‘floating support’ which also would not qualify (see paragraphs 156–158 of the Housing Benefit guidance for more).
Ultimately the support must be for the tenant and connected with the address they are occupying.
How much is enough? Amount, time and cost
More than minimal
Case law has determined that it must be more than a minimal amount of care, support or supervision to qualify.¹³
“..a satisfactory test for determining whether support of more than a minimal amount is provided is to ask whether the support provided was likely to make a real difference to the Claimant’s ability to live in the Property.” ¹⁴
The Housing Benefit guidance considers examples of ‘more than minimal’ at paragraph 155, with two studies of sheltered housing for over-55s.
In one case the residents have an on-call warden and emergency alarm system. No other support is provided and wardens only help in emergencies. This is deemed as not more than minimal and so not specified accommodation.
Whereas, by comparison, another sheltered housing scenario has a package of support including ‘managing medical appointments, daily activities, daily visits, reporting of repairs, support with finances and benefits’. In this case, so long as the claimant has a need for the support offered, then this would be enough to qualify.
What type of support is made available is also relevant. Local authorities will give more weight to one-to-one or regular support, as opposed to a sporadic group offer. They will also consider support carried out by specialists as having more significance than support that can be given without training (paragraphs 153 and 154 of the Housing Benefit guidance).
The importance of consistent support
Time and time again tribunals have stressed the need for the care, support or supervision to be continuous — not just setting up steps or one-off support.¹⁵
Something that has come up a lot is whether supporting residents with benefit applications is enough. The Housing Benefit guidance confirms the consistent finding that it isn’t.¹⁶
Much like the over 55s example above, the barrier is that those without benefit issues would end up with no support if this was all that was on offer. It’s not continuous, only provided if needed, and may also just come down to the landlord taking measures to protect their income.
If providing help with benefit issues formed part of a wider package then it may add to the final outcome, but alone it isn’t enough.
One-off set up events, like help setting up benefit claims, are not favoured. However, sometimes intense set up processes can be an indicator that the support to come will be more than minimal. Similarly some places may offer extensive rehousing support at the end of tenancies, beyond what a normal landlord would do, but if that’s all of the support the tenant has had, then this is also less likely to be considered enough.¹⁷
Time and cost
Housing Benefit guidance acknowledges that support can vary week to week so to think in terms of averages (paragraph 151).
With regards to time — 10 minutes a week was found not to be enough¹⁸ but 3 hours a week could be¹⁹ however, always remember that ultimately it’s about the impact.
In one case a claimant was charged £10 a week for ‘supporting people charges’ — the council made the case that this wasn’t enough to qualify as more than minimal. The Judge found against them and stressed that the test isn’t whether the support costs enough but is whether the support provides a real difference for the client.²⁰
“Provided with” — there and needed is more important than actually used
You may of course find yourself in a situation where your client doesn’t actually make use of the support on offer.
However, the requirement is just that the client must have an actual or potential need and the support must be readily available, even if they do not use it.²¹
Note that needs can vary between individuals under the same roof and this is an individual assessment. For example the housing will not qualify as exempt if others in the same building get a lot of care but the client themselves only gets a minimal amount.²²
It is also not enough that the housing provider has a blanket support policy available to all tenants, it’s about whether your particular client has the need to use it.
This is covered in example 2 for paragraph 149 of the Housing Benefit guidance:
Someone moves into housing that offers its residents budgeting support, help claiming benefits and alcohol/drug dependency mentoring.
This may be an ample support package, however the client has no need for budgeting support or mentoring so these 2 forms of support are ignored and what is left is found to not be more than minimal.
In the past judges have commented that it will come down to the facts and evidence of that particular case. You could have two landlords offering the exact same support package, and yet one could be specified and the other could be deemed not to qualify. Conclusions should be made based on the need and the evidence available for your client’s specific case.²³
“Admitted for that need”
For supported accommodation a client’s needs must form part of placement assessment.
Provider needs assessments can often be evidence of meeting this, but not having one does not automatically mean there is no need (see paragraph 147 of the Housing Benefit guidance).
We’re going to explore the role of providing evidence more in our FAQs below.
Generally the view is taken that supported housing is in such short supply that they would not admit someone who had no need of their services.²⁴
FAQs
What if someone leaves specified accommodation? What happens to their Housing Benefit and will they need to now claim UC for rent?
If someone moves out of specified accommodation, what happens next will all depend on where they are moving to and what benefits they are on.
Let’s take an example.
Clara has been living in exempt accommodation but is now moving into general needs accommodation nearby as their requirements have changed. Managed migration has not yet been rolled out in their area.
If Clara hasn’t yet claimed UC then there is the normal assessment of whether a move is a ‘trigger’ to UC.
As such, because they are staying in the same local authority with no gap in HB entitlement, they do not need to claim UC and can let the council know and carry on claiming Housing Benefit at the new address.²⁵
However, if Clara was on UC and getting Housing Benefit too, then they can no longer continue getting HB after the move.
Regardless of the fact they haven’t moved local authorities, their Housing Benefit will end and they will need to ask UC to include housing costs instead.
This is because there are only strict circumstances where someone on UC can also be entitled to HB, one of which is because they are in specified housing.²⁶
So, once they leave that excepted rule, they are no longer allowed to claim both benefits simultaneously and so cannot continue to get HB.
Could leaving specified accommodation mean a client is financially worse off?
As we covered at the beginning, there are circumstances where this could happen.
Let’s look at another example
Nadiya has been on UC for several months receiving the transitional SDP element of £285 a month. While in exempt accommodation their rent was paid in full by HB, so no housing element under UC at all.
They are now moving into a general needs 1 bed flat with rent owing of £600pm.
The Local Housing Allowance (LHA) sets how much they can get from UC. Nadiya is under 35 years old, entitled to the shared room rate, which in their area is £61.50 a week.
Once they tell UC of the move they gain a Housing Costs Element (HCE) of £266.50. This increase of £266.50 then reduces the SDP element by the same amount under transitional erosion.
Nadiya finds themselves with a new SDP figure of £18.50 a month, instead of £285, and a monthly rent shortfall of £333.50. They can apply for a discretionary housing payment to try to mitigate this change, but it is not guaranteed.
Therefore, if a client is considering leaving specified accommodation, a full benefits check should be done in advance to assess what impact this will have on their income.
What evidence would need to be provided to the local authority for them to decide that a client lives in exempt/supported accommodation?
The starting point is that not all clients/landlords will be approached for evidence about the care and supervision needs, the council may be satisfied without anything more than the usual evidentiary requirements.²⁷
For instance, if the local authority knows that the particular property has a needs assessment and/or offers intense support to all residents (deemed to have a need for such support) then this could be enough without further scrutiny of the individual’s case.²⁸
However the council can, and may, ask and if they do then the following can be useful:
- tenancy agreement
- itemised support offer/support plans
- if supervision is a factor, the landlord may provide a staff rota and description of the purpose of staff attendance
- response intervention reports
- attendance sheets i.e to counselling sessions/check ins
- needs assessments — particularly relevant if arguing the accommodation is supported and the needs assessment was done to assess eligibility of placement
Obviously at the point of making a Housing Benefit claim the client could have just moved in and so a detailed history of support they have been offered, useful as evidence to inform decision making, will not exist yet.
In this scenario case law has supported tribunals considering details of post-claim support being used as evidence in appeals, even if for later periods²⁹. The scope of this is limited, though, it will only be relevant if it provides evidence of support available for the time under consideration to the date of the decision³⁰. As from CH/1344/2011: ‘The later evidence helps to show what was in contemplation at the material time, and of what significance the claimed support was likely to be’.
It is also still worth mentioning any setting up activities because, as we’ve seen, if they are substantial then this could be an indicator that the support to come will be more than minimal.³¹
Who is responsible for knowing whether accommodation is specified?
There is no single regulatory record for specified accommodation, overwhelmingly it is the responsibility of the local authority (LA) to maintain an accurate list.
Housing Benefit circular A8/2014:
‘As Universal Credit staff will have a limited knowledge of the local housing stock, LAs would be better placed to identify the supported housing in their area that meets the definition[..]
Those not on the list should not receive HB because the list should accurately reflect the LA’s view that the home is “specified accommodation”.’ (paragraphs 36 and 40)
Local authorities have the power and access to look into things like Housing Association registrations, to check if the landlord is for-profit and look into registered charity listings. They can also request detailed accounts and other documents from the housing provider to establish if the housing is one of the relevant types.
Paragraph 65 of the Housing Benefit guidance states:
It is the responsibility of the LA to determine whether the accommodation meets the specified accommodation definition and, as a result, whether their housing costs should be met through HB or UC. Until the LA makes this decision, the claimant cannot receive help with their housing costs from UC or HB.
Following this the landlord has a responsibility to liaise with the local authority about the support they provide and then lastly the client should try to furnish the local authority with all the evidence they can, to prevent any delays.
Tactically what can be done if HB and UC do not agree?
As stated, the Housing Benefit guidance strongly suggests responsibility with the local authority but clients may find themselves in a position where the LA and UC disagree.
If the client is already on UC then there is nothing to be lost in seeking costs under both benefits simultaneously (while letting the provider know you have sought costs under both and potentially preparing to repay any overpayment if one pays in error).
Where it is more problematic is when the client is deciding whether or not to claim UC at all, which will terminate their legacy benefit entitlement.
We’ve been made aware that clients have been told to do this by their local authorities, which isn’t too surprising because the Housing Benefit guidance gives such an instruction to them (paragraph 65).
However we would strongly advise against this without a full better-off calculation made in advance. We have heard this wrapped up in the logic that ‘everyone is to be moved to UC eventually’ but it’s essential to remind advisers that those who naturally migrate will not get the transitional protection afforded to managed migration cases and so may find themselves worse off, particularly if it turns out that the costs cannot even be claimed under UC.
If you are a Citizens Advice adviser with a client caught up in this situation then you can contact us on our consultancy service for support.
Signposts
Given all the above, here are some basic tips on how to spot whether a client’s home is exempt, supported or neither.
- is the landlord a private, profit making, landlord? If yes — then it cannot be exempt or supported at all
- was there a needs assessment taken to establish eligibility? If so then this would suggest support is a prerequisite to being housed there and indicate it could be either supported or even exempt
- did the client have the support before they moved in, and will it follow them when they leave? If so then it sounds like ‘floating support’, unlikely to be related to the accommodation itself, and not relevant
The council should have a list of specified accommodation providers and this may be enough (or at least strongly suggestive) of whether your client qualifies.
Getting hold of the client’s tenancy agreement would be a good starting point. The tenancy agreement should be able to show useful points, such as who is the rent payable to as landlord. It may also include details of any care, support or supervision arrangements. Also If the rent shows it’s inclusive of a care/support/supervision charge then this can be indicative of a specified arrangement.
Higher than average rents can sometimes be a hint of enhanced support but they are by no means conclusive, an area that the government is planning to work on.³²
Alice Buchanan works as a Welfare Benefit expert in the Expert Advice team at Citizens Advice.
This article applies to England and the information is correct as of the date of publication.
Unfortunately, we are unable to respond to comments left on the medium site — please contact expertadvicesupport@citizensadvice.org.uk if you wish to give feedback on an article.
[1] Although the reference says domestic violence it’s expanded in regulation 98 of the UC Regulations 2013 to say:
“domestic violence” means any incident, or pattern of incidents, of controlling behaviour, coercive behaviour, violence or abuse, including but not limited to —
(a)psychological abuse;
(b)physical abuse;
(c)sexual abuse;
(d)emotional abuse;
(e)financial abuse,
regardless of the gender or sexuality of the victim
[2] Paragraph 3(h)(i) of Schedule 1 of the UC Regulations 2013 allows UC to exclude these payments from being rent for UC, meaning they can’t be met by the Housing Costs Element
[3] Regulation A13 of The Housing Benefit Regulations 2006
[4] If you want to read more about transitional elements and how they can go down we have resources available on both the SDP and managed migration
Closing the SDP gateway article
A guide to managed migration article
[5] Exempt accommodation is defined in paragraph 1 of Schedule 1 of The Universal Credit Regulations 2013
Supported accommodation is defined in paragraph 3A(3) of Schedule 1 of The Universal Credit Regulations 2013
[6] Resettlement places are hard to locate, and may even no longer exist.
The definition applies to temporary accommodation, such as hostels, that were previously funded under section 30 of the Jobseekers Act 1995 from the Department of Social Security (now the Department of Work and Pensions).
The scheme ceased a long time ago but in theory these places could still be operating. Clients would need to check with their accommodation provider or the Local Authority.
[7] Housing Benefit circular A8/2014 explains that the supported/managed accommodation category was added to cater for those that fell out of the definition of exempt accommodation because of the type of funding or care structures that are in place
[8] Paragraph 4(10)(b) of Schedule 3 to the Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006
[9] Paragraph 3A(6) of Schedule 1 of the Universal Credit Regulations 2013
[10] R(H) 2/07 confirmed by R (S) v Social Security Commissioner, Secretary of State & Walsall MBC [2009] EWHC 2221 (Admin)
[11] Chorley BC v IT [2009] UKUT 107 (AAC)
[12] Paragraph 71 of Chorley BC v IT [2009] UKUT 107 (AAC)
[13] R(H)7/07
[14] Paragraph 31 of [2010] AACR 2
[15] [2010] AACR 2, R(H) 4/09
[16] R(H) 4/09, [2010] AACR 2, CH/150/2007, CH/4432/2006
[17] Paragraph 26 and 261 of R(H) 4/09
[18] R(H) 7/07
[19] CH/1289/2007
[20] Paragraphs 31 and 32 of [2010] AACR 2
[21] [2009] UKUT 150 (AAC), R(H) 4/09 and [2009] UKUT 109 (AAC)
Acknowledged in the Housing Benefit guidance at paragraph 153
[22] CH/1289/2007
[23] [2012] UKUT 52 (AAC)
[24] Paragraphs 16–23 of the Housing Benefit circular A8/2014
[25] See paragraphs 9 and 10 of A7/2018 guidance for local authorities
[26] Regulation 5(2)(a) of The Universal Credit (Transitional Provisions) Regulations 2014
[27] See paragraph 88 of Salford City Council [2009] UKUT 150 (AAC)
‘As to the Council’s point that there was no independent verification that the claimants had support needs, there is no absolute requirement that there be any such verification. It is purely an evidential point.’
[28] CH/1289/2007 paragraph 28
[29] CH/150/2007 and CH/1344/2011
[30] R(H)4/09
[31] R(H) 4/09
[32] A press release from July 2022 announced that ‘unscrupulous landlords who exploit vulnerable residents by charging high rents for poor-quality accommodation and offering almost no help will be driven out of the supported housing market by a new £20 million government improvement programme’.
It refers to cases where landlords seek very high rents under supported housing status, while providing minimal to no support. The government is looking to introduce minimum standards in the sector and better oversight to tackle this issue.
One of the proposed measures is to change the legal definition and define ‘care, support or supervision’ in legislation. This is yet to happen and we will update this article should it come through.
