Recent headlines reveal a concerning trend: the prolonged detention of adults and children with Special Educational Needs in mental health units as a result of a shortage of suitable housing in the community. While the broader housing crisis dominates news, addressing this acute shortage must become a priority.

Building the Right Support and the Transforming Care Programme

NHS England’s national plan, ‘Building the Right Support’ published in 2015 outlined a change in the approach to providing suitable accommodation for children and adults with Special Educational Needs.

Importantly, it promotes alternatives to institutional care, such as supported living arrangements and community-based housing options that enable individuals to live more independently. It also highlights the importance of tailoring support and care to the specific needs, preferences and aspirations of each person.

Current Case Law

Legal battles over the interpretation of the Use Classes Order (C3 and C2) add complexity. With various decisions, appeals and subsequent case law informing how this type of accommodation is assessed and classified, defining when accommodation falls within the traditional C3 ‘dwellinghouse’ or C2 ‘residential institution’ has become more challenging.

Notwithstanding, the case law has established the following main considerations in assessing the appropriate Use Class:

· understanding the degree of care provided;

· assessing the autonomy of residents; and, critically,

· determining whether residents can be considered to form a ‘single household’.

Commonly, the provision of accommodation for adults can clearly and cleanly fit within Use Class C3b, however case law has established that residential accommodation for children must always fall within the Use Class C2, as children are unable to form a ‘single household’.

Implications for Availability

Despite these established principles, a lack of knowledge and understanding of the legal landscape is resulting in continued issues for these types of uses within the planning system.

The recent ‘3 Measham Way Appeal' (APP/Z4310/X/23/3316521) is a clear example of the incorrect assessment of these uses, whereby the Council had exerted that the use could not fall within Class C3(b) due to the support provided and the associated effects e.g comings and goings, car parking, noise and disturbance and internal changes to the property.

Conversely, the inspector concluded that there was nothing inherent about the property which distinguished it from a dwellinghouse; and that whilst the occupants of the property received care throughout the day and night from non-resident personal assistants or support workers, the occupants lived together as a ‘single household’. As such the Council’s decision was overturned and a Lawful Development Certificate was issued for the use of the property within C3b.

Whilst the correct outcome was reached via the appeal process, appeals of this nature are currently taking up to 52 weeks to be determined. As a result, this can lead to significant delays in making much needed accommodation available in the community.

Education is Key

It is clear that there is scope to address the identified shortages of inclusive community-based housing within the parameters of the current planning system. To streamline the planning process, education is key. Decision-makers need ready access to evolving case law and sound legal advice, emphasising that the presence of care doesn't automatically classify a facility under C2. Let's cut through bureaucracy and ensure swift access to community-based housing, to the benefit of those in need.

At Euan Kellie, we keep on top of the latest appeal decisions and case law so we can give you the right advice. If you have a care facility or community-based housing project that needs a fresh planning strategy, get in touch.