I'm sorry to keep returning to this topic, which has become a bit boring for those not involved in it, but does anyone know what is happening about the Rivendell judicial review of the upper tribunal's refusal of leave to appeal a case where the tribunal again found the accommodation non exempt?

Do you mean after the high court gave leave to appeal in January?

I'm a bit behind on this one- I didn't know they had. Do you mean leave to appeal to the upper tribunal or leave to appeal to a higher court against the refusal? Either way- do you know the latest development?

R v SS Cmmr & anrs (2008) EWHC Admin 3097
www.bailii.org/ew/cases/EWHC/Admin/2008/3097.html

see also rightsnet news ...

Whether claimants supported housing was exempt accommodation for HB purposes: High Court grants permission to bring judicial review claim (30 January 2009 )

The judicial review was heard by the High Court on 18/19 June - I don't know the result yet. This was a judicial review of the refusal by Commissioner Turnbull (as he then was) to grant leave to appeal against a tribunal decision involving Rivendell Lake HA in Wolverhampton. I represented at the tribunal hearing, and conceded that following R(H)2/07 I could not rely on the argument that the care (commissioned by Social Services) was provided 'on behalf of' the landlord. On the facts the tribunal found that the landlord was not itself providing any meaningful support.

The tenants - on facing possession proceedings some time later - sought to appeal the tribunal decision out of time, arguing that Mr Turnbull had decided R(H) 2/07 incorrectly. He refused leave, and they applied for judicial review. The outcome of the full hearing of that JR is what is now awaited.

Simon Ennals

judgment out ..... not good news ....

R_S_v_SSC_and_Anor_2009_EWHC_Admin_2221

(thanks to desmond rutledge for sending us a copy of the judgment)

plus summary in rightsnet news @

Whether claimants supported housing was exempt accommodation for HB purposes: New High Court judgment

Can I appeal to readers to use their influence to encourage advocates to leave this issue alone?

The phrase "If you find yourself in a hole stop digging" comes to mind.

There is obviously a bit of room for trying to establish what level of support is not "minimal" but other than that each case simply makes matters worse and draws government intention to the need for abolition of exempt accommodation. We would not have been faced with having to show that support was not "minimal" if it had not been for previous cases.

We also facing the likelihood of an incoming conservative government who are unlikely to favour schemes which envisage paying up to £400 per week of "taxpayers money" in housing benefit to non profit organisations in the middle of a recession. As the judgement sets out, it was a conservative secretary of state who said about the creation of exempt accommodation "the Government is mindful to ensure that private landlords are not disadvantaged compared with housing associations" and "there is no reason to introduce further special treatment for Housing Association or other property that meets ordinary housing needs."

With the continuing separation of housing from support the most likely change is that the definition of exempt accommodation will be abolished and not replaced. This would be a levelling down to what private landlords currently face. I can't think of any possible alternative definition which would be workable and which would not involve governments in considerable extra expenditure. Those who advocate campaigning for change do not seem to have come up with one either.

It is worth saying that a "good news" outcome would benefit some organisations that most of us would not want to be associated with. See CH 136/2007 for an example.

The DWP review is already under way.
This was recently sent out to all HB managers from DWP

We need your help. We are reviewing the way supported ‘exempt’ accommodation is dealt with by HB. These are cases currently assessed under the pre 1996 rules where care, support or supervision
is provided by or on behalf of certain not for profit landlords.

We recognise that the rules no longer fit with the way care is provided for individuals today. However for work to progress we need to gather more information. Research in this area has been delayed due
to the DWP wide embargo on data transfer, so until this can proceed we ask for your assistance in data gathering.

We shall shortly be sending out a questionnaire to approximately 50 LAs where we know partial subsidy on HB expenditure in this area has been high. This will ask for details of average rents and the main ‘exempt’ accommodation providers in your area if known so that we can seek their input. If you are sent a questionnaire we would ask that you do your best to provide as much information as you can

I think the sensible solution is not to throw our hands up in despair and concede defeat, but to recognise that social care models are changing and that tri-partite agreements are now the norm in most areas. The regulations never really caught up with the reality after the THB scheme ended in April 2003.

Most people in the business would recognise a supported housing scheme when they see one, and it shouldn't be beyond a good draftsman to modify the regulations.

If we take what is in my area the largest (and probably most expensive) client group living in supported tenancies, the learning disabled, the thrust of Goverment policy for that group is to promote wider access to tenancies. Valuing People Now, PSA 16, NI 145 - all set targets and expect results. With this expectation comes a cost, which is why looking at high rents in isolation (without comparing global costs to NHS accommodation, residential or nursing care homes) is misleading.

If the 'de minimis' issue is the only battle ground left, my view is that there's too much at stake for people not to use it. Most landlords will directly provide, or have an SLA with another body, for some form of enhanced housing management in any case. If tenancies become usustainable due to cost and key policy drivers are telling us not to rely on traditional more 'insitutional' forms of care, imagine the numbers of vulnerable people turning up at housing departments to register as homeless.

Surely that would carry a heavy cost, and not all of it would be purely financial...

Fred- would you like to attempt a draft? No one I know seems to have managed one that the government would accept, remmbering that it has to exclude ordinary housing where domiciliary services are provided.

Chris, I refuse to believe it's impossible, but just as I'd step back and leave brain surgery to a trained specialist, I'll do the same here because I lack the level of expertise needed to carry out an admittedly diffcult task. That's not so much a cop out as a realistic appraisal.

Maybe we need to demystify things and start by asking the simple question 'what is supported accommodation and why should it be treated any differently?'

We'd hopefully get an understanding of why it often costs more to provide, and why the overall social benefits of providing it can justify that relatively high cost. Ultimately Central Government MUST ask these tough questions or they'll find that they can't deliver key policy drivers such as Valuing People Now (the progress of which is jeopardised by the current confusion).

You know the history and the background much better than most, and if you're struggling then that speaks volumes about the size of the problem. To me, the scale of the challenge and the cost of failure just means that we all need to work harder and not stop until the problems are solved...