Use Classes: Assisted Living – who cares?

The growth in assisted/ supported living has caused difficulties for the planning system, As highlighted by our blog on Changes of Use, it depends on individual circumstances where particular uses fall in use class terms.

Assisted living

It is well recognised that there is a growing need for alternative forms of living: as the population ages and there is a desire to give those who are, for example, disabled, struggle with mental health or recovering from addiction greater independence where possible and therefore we have seen a growth in "assisted" or "supported" living in recent years.

But the breadth of different care / support packages varies so hugely that it is not always easy to be certain what use class best fits. For example: What are carers doing for residents? Are carers resident or non-resident? Is the accommodation formed of self-contained flats, or simply private bedrooms (with our without kitchenette facilities) with communal living facilities? Is there an on-site office for staff?

England

Dwellinghouse?

If the intention is to convert existing housing/HMO stock, planning permission is not required if the proposed use is within class C3.

Uses within C3(b) involve a "single household". Relevant factors include:

• Are the residents capable of forming a single household? The courthas confirmed that children (under 16s) are not capable of forming a single household and carers that do not stay at the premises permanently do not count as a resident. Therefore if there is a house of up to 6 children with round the clock carers on shift work, there would be no single household and therefore the use could not be C3(b). If an adult carer was resident then it could be C3(b). It would similarly apply if residents had a disability that prevented them from forming a single household.
• How are the residents living? Are they living substantially communally; shopping and cooking together? Do they share out the house tasks and have they formed real friendships? In contrast, are there kitchenettes in the bedroom and with the residents largely keeping themselves to themselves? An inspector in 2019 found that in that case, the fact that the young adults lived communally (cooking and cleaning together) and had formed strong friendships was a factor that the inspector determined indicated C3(b), living as a single household.
• What is the level of care being provided? How often are carers going in? For example, where carers are in the majority, if not all, of the time and cook and clean etc. for the residents, that would be a more intense level of care (i.e. leaning towards a use more akin to a residential care home (or sui generis) perhaps). On the other hand, if the carers simply come in to take out the laundry or provide the weekly shop, then its more indicative of the more independent C3(b) situation.

Other use classes

If the use does not fall within C3, the other possibilities are:

• C2 residential institutions: your typical residential care home (Scottish class 8)
• C4: houses in multiple occupation of up to 6 residents (included within the Scottish class 9, but max 5 residents)
• Sui generis: none of the above (e.g. 7 or more residents).

Scotland

The situation is different in Scotland: class 9 permits people living as a family or up to 5 (not 6 as in England) residents living together (it also excludes flats). If not a family, the residents do not need to be living as a single household, but class 9 explicitly includes a household where care is provided for residents. That means there can be more of a focus on the level and type of care provided.

The Court of Session upheld a decision to issue a certificate of lawfulness for change of use from dwellinghouse (Class 9) to use by 4 children living together and cared for on a 24 hour basis by non-resident care workers.

"Care"

The provision of care can therefore be a key issue for determining the use class. The relevant definitions in the Use Classes Orders north and south of the border are:

England: "personal care for people in need of such care by reason of old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder, and in class C2 also includes the personal care of children and medical care and treatment";

Scotland: "personal care including the provision of appropriate help with physical and social needs or support; and in class 8 (residential institutions) includes medical care and treatment"

A separate use class?

For all those developers, funders and operators in the supported living space, greater clarity would be welcome, but it is perhaps hard to see how much value a separate use class for supported living would add given the spectrum of care that is possible. It would also remove the potential for converting existing dwellinghouses without having to apply for planning permission.

However, as Neil Collar's blogmentions, a separate use class could assist with issues arising from retirement living projects, such as site allocation, the need for age restriction planning permission conditions, and the application of affordable housing requirements.