We regularly act for charities that own and operate supported living accommodation, or are looking to do so, as part of their service provision to beneficiaries.
Such an arrangement can take many forms, and the level of care provided can vary enormously. One end of the scale might be the provision of temporary accommodation to young people at risk of homelessness, who are generally self-sufficient but require assistance with their finances and job applications. The opposite extreme could be the provision of long-term accommodation and care to severely disabled children who need round-the-clock medical attention and supervision.
Whilst some charities may be in a position to acquire purpose-built premises, many will need to rent or purchase existing residential property in order to do so. A house that has previously been used as a conventional family home will often be appropriate, subject of course to any alterations needed to make it safe and accessible for the proposed occupants.
It is important to be aware that planning permission could be required in such circumstances, even if there are to be no physical changes to the property, in order to authorise the proposed use.
When is planning permission needed?
Planning permission is needed, to authorise the use of a property, whenever there is a 'material change of use' from that which was previously authorised. (This article doesn't deal with circumstances where planning permission is required to authorise physical alterations to a property.) This means that there are two questions to be asked. Is there a 'change of use'? And, if so, is that change 'material'?
A change of use is determined with reference to the various 'use classes' set out in the Town and Country (Use Classes) Order 1987 (as varied). 'Residential institutions' are covered by use class C2, which is defined as: "Provision of residential accommodation and care to people in need of care (other than a use within class C3 (dwellinghouses)". Class C3 covers "Use as a dwellinghouse (whether or not as a sole or main residence) by:
- a single person or by people to be regarded as forming a single household
- not more than six residents living together as a single household (where care is provided for residents)
- 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)."
A conventional residential house will usually fall within category (a) on the above list. If such a property is acquired or rented for the purposes of providing supported accommodation, then unless the proposed use will fall within category (b) on this list, there will be a change of use to class C2.
Residents living together as a single household
Based on the list above, a property cannot fall within use class C3 if more than six residents are to occupy it. Assuming the proposed number of occupants is six or fewer, the key question is whether they are living together 'as a single household'.
The 2003 case of North Devon DC v First Secretary of State established that children are not able, on their own, to form a 'single household' because they are not capable of living without adult care and supervision. However, children living together with an adult carer can potentially constitute a single household, if that carer is permanently resident. Non-resident carers are not deemed to be part of the household, even in circumstances where care is provided to the children 24 hours a day, seven days a week.
On the other hand, young people aged 16 or over may be capable of living as a single household, depending on their needs. A 2019 Planning Inspectorate appeal quashed an enforcement notice served by London Borough of Barking & Dagenham which alleged that accommodation provided to prepare young people for independent living fell into use class C2. The Inspectorate considered factors such as the house layout and facilities (which were what would be expected in a residential household) and the fact that the residents often shopped and cooked together and generally lived communally. In the circumstances, they concluded that the young people did live together as a single household.
Of course, the 2019 case may have been decided differently if the young people had, for instance, suffered from disabilities making it impossible for them to live independently. Each situation is assessed on its own particular facts.
Materiality of change of use
Planning permission is not needed, even where there is a change of use, where that change is not 'material'.
A change of use from class C3 to C2 will not generally be considered material if it doesn't change the actual daily use and character of the property. This will be a matter of fact and degree in each case, with considerations including noise levels, increased pressure on parking caused by visits from carers, and whether additional security measures such as alarms are installed at the property. The number of resident children/young people is likely to be relevant here too; six children living together is likely to be considered higher impact than the average family home, whereas two to three might not be.
Practical steps
Planning should be considered by charities before they commit to purchasing or leasing a property for this type of use. Whilst it may be tempting to proceed 'on risk', the worst-case scenario would be for the charity to be left with a property that it cannot lawfully use.
If it is not clear that the proposed use will be lawful, the safest approach would be to seek a 'certificate of lawfulness of proposed use' from the local planning authority. If granted, this will provide comfort that planning consent will not be necessary. If refused, the choice will be whether to proceed with a planning application or walk away from the property.
Get in touch
If you would like to speak with a member of the team you can contact our charity law solicitors by email, by telephone on +44 (0)20 3826 7510 or complete our enquiry form below.
