8th March 2022

Howes Percival : is making provision for supported living a bad thing

Howes Percival : is making provision for supported living a bad thing

IS MAKING PROVISION FOR SUPPORTED LIVING A BAD THING?

You would hope that the answer to the title question is always a resounding “no” but from recent experience it would appear that some local planning authorities are not so sure when it comes to providing supported living at existing flats.

It started with planning permission being granted for six flats for a C3 dwellinghouse use. Some of those flats were subsequently leased to and occupied by people with learning difficulties, autism and mental ill health.

A registered care provider with a focus on providing supported housing for vulnerable adults with learning difficulties, autistic people and people with mental ill health to promote their independence, provided the residents of the flats with care. Some residents needed 10 hours’ care and assistance with some day-to-day living tasks whereas some residents required 24 hours’ care and support in all areas.

The flats, however, were owned and managed by a different company to the care provider with all responsibilities for arranging tenancy agreements with the residents completely in the control of the owner landlord.

Occupation of the flats by vulnerable adults led to adjacent neighbours raising complaints about the residents relating to noise and disruption. The level of complaints increased and increased until circa 150 individual complaints had been submitted and the occupation of the flats became the focus of enforcement investigation by the local planning authority.

The Council was, it has to be acknowledged, in a somewhat difficult position; on the one hand the occupancy of the flats by vulnerable adults for supported living must be considered a significant social benefit but, on the other hand, it had led to a substantial number of angry existing residents who felt their amenity had been substantially harmed by the occupancy.

Unfortunately for the vulnerable adults in this case, the Council determined that it would instigate enforcement action against an alleged change of use from dwellinghouse (use class C3) to a residential institution (use class C2).

C2 VS C3

The difference between C2 and C3 uses is quite a common issue when advising care providers but, in practice, I usually find myself seeking to establish that the use class of proposed development is C2 or sui generis (usually to ensure that application fees and s106 obligations are not based on the usually higher C3 use).

Consideration of the issue starts with the respective definitions of C2 and C3 uses in the Use Classes Order (Town and Country Planning (Use Classes) Order 1987 (as amended)):

Class C2. Residential institutions

  • Use for the provision of residential accommodation and care to people in need of care (other than a use within Class C3 (dwelling houses)).
  • Use as a hospital or nursing home.
  • Use as a residential school, college or training centre.

Class C3. Dwellinghouses
Use as a dwellinghouse (whether or not as a sole or main residence) by:

  1. a single person or by people to be regarded as forming a single household;
  2. not more than six residents living together as a single household where care is provided for residents; or
  3. not more than six residents living together as a single household where no care is provided to residents (other than a use within Class C4).

As C2 expressly excludes the provision of residential accommodation and care to people in need of care when it falls within a Class C3 use, it is clearly necessary to consider whether each flat falls within a C3 (b) use.

Whether there are more than 6 residents living in the dwellinghouse is clearly a matter of fact easily ascertainable but whether they comprise a “single household” is a bit more tricky. This is a matter of fact and degree depending on whether the persons have sufficient stability and communality about their living arrangements to be living together as a single household. Tied to this is also the concept of the planning unit; is each flat within the block of flats a separate planning unit or does the occupation by vulnerable adults in need of care provided by the same care provider result in the block of flats becoming one planning unit?

To determine whether it is a C3 or a C2 use it is necessary to consider various factors:

  • Whether each flat is an independent dwellinghouse? Detailed consideration of this question is outside of the scope of this article* but it is sufficient to note that, if the unit does not provide all the facilities required for day-to-day existence then it is likely to be part of a C2 use;
  • Whether the development is dependent upon a large amount of communal facilities and services? If so, a C2 use is more likely as these provisions would exceed that expected in other dwellinghouse developments;
  • Whether on site accommodation is provided for professional carers? If so, a C2 use is more likely as professional carers are less likely to be considered as part of a “single household”;
  • Whether the care provider is the landlord? If so, a C2 use is more likely as the provision of care is more likely to be concluded to be part of the offering of the development;

As is often the case in planning, these are largely questions of planning judgement that lead to uncertainty and inconsistency with different decision makers reaching different conclusions on very similar schemes.

OUTCOME FOR VULNERABLE ADULTS LIVING IN EXISTING C3 FLATS

In my case, I am pleased to advise that the Council ultimately reached the conclusion that there was no material change of use from a C3 use to a C2 use. The determinative factors for the Council appeared to be that: carers did not reside on site; all flats clearly provided the facilities for day to day existence; and the tenancies did not require any care to be provided to occupiers.

The right conclusion was reached but only after months of uncertainty and the need to incur legal fees. Whilst it will not always be possible to avoid such uncertainty and costs, it is important that proper consideration is given to whether your development is likely to be concluded to be a C2 or a C3 use. For existing C3 homes that are proposed to be occupied by people in need of care, more certainty can be provided by securing a certificate of lawfulness. For new developments, though, it is a matter of judgement for the decision maker and it is certainly better to support your proposals with clarity on the issue rather than only dealing with the issue if raised by the decision maker.

*If more detail is required, Rectory Homes Limited v Secretary of State for Housing Communities and Local Government and South Oxfordshire District Council [2020] EWHC 2098 is worth reading.

For more information, please contact Chris May in our Leicester office on 0116 247 3523 or by email chris.may@howespercival.com.

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