The Extra Care Question: RU-C2 or C3-UCO?

A long time ago in a galaxy far, far away, Parliament made the Use Classes Order. 
I referred in my 16 September 2017 blog post Class Distinctions: Planning For Older People to the blurred distinction between C2 (basically use for the provision of residential accommodation and care to people in need of care) and C3 (basically use as a residential dwelling) when it comes to “extra care” facilities for the elderly. I set out some of the criteria applied by inspectors in appeal decisions.
There was a very useful appeal decision letter last month which surely throws additional doubt upon the soundness of the curious attempt in the draft London Plan in effect to amend the Use Classes Order by policy rather than legislation, in that it seeks to deem extra care facilities for the elderly in London as falling within use class C3 (and thereby becoming subject to affordable housing and other obligations and requirements) whereas the recognised planning law position is that they are more likely to fall within use class C2. 
Draft policy H15 C states:
Sheltered accommodation and extra care accommodation is considered as being in Use Class C3. Residential nursing care accommodation (including end of life/ hospice care and dementia care home accommodation) is considered as being in Use Class C2.”
Paragraph 4.15.3 of the supporting text simply states again that “sheltered accommodation and extra care accommodation should be considered as C3 housing“, defining extra care accommodation as follows:
extra care accommodation (also referred to as assisted living, close care, or continuing care housing) is self-contained residential accommodation and associated facilities, designed and managed to meet the needs and aspirations of older people, and which provides 24-hour access to emergency support. A range of facilities are normally available such as a residents’ lounge, laundry room, a restaurant or meal provision facilities, classes, and a base for health care workers. Domiciliary care will be available to varying levels, either as part of the accommodation package or as additional services which can be purchased if required.”
First, how can it be appropriate in principle for a policy document to deem a use to be treated in a particular way in the Use Classes Order? The nature of the use and the determination of which use class, if any, it falls into, is a legal question. For instance whether planning permission would be required for a change of use would ultimately be determination by an application for a certificate of lawfulness of proposed use or development under section 191 of the Town and Country Planning Act 1990. By all means, if justified, the Mayor can determine that particular policies should apply to extra care accommodation (matters which could then be tested through the plan examination process) but his view as to which use class it might fall into has no weight in the legal determination of that question and in my view has no place in a document which is only allowed to address “matters which are of strategic importance to Greater London.

Secondly, his view, not supported by any reasoning, as to the appropriate use class do not sit easily with the conclusions that planning inspectors have come to. The most recent decision letter (22 January 2018) was by inspector Michael Boniface, where he allowed an appeal in Sidmouth, East Devon, by Pegasus Life for an “assisted living community for older people comprising extra care units, staff accommodation and communal facilities, including a kitchen, restaurant/bar/café, a well-being suite comprising gym, treatment rooms and pool, a communal lounge and storage facilities; car parking for residents, visitors and staff of the assisted living community; comprehensive landscaping comprising communal and private spaces; and associated groundworks.”
The decision letter and inspector’s reasoning is well summarised in a blog post by Housing LIN – “Planning Inspector sets out the distinctive elements of Extra Care scheme resulting in C2 Use Class conclusion” (8 February 2018). 

The inspector was presented with the Mayor of London’s position but it did not alter his conclusions on the facts of the case. 
 Thirdly, in its recent report Housing For Older People (8 February 2018) the Commons CLG Select Committee specifically considered the treatment of specialist older people’s housing in the planning system and particularly in the Use Classes Order:

125. We also heard that the “inconsistent and cumbersome” application of the C2 and C3 planning classifications to extra care housing was problematic for developers. Some local authorities apply the C2 classification, applied to residential care homes and nursing homes, to extra care housing which reduces planning charges. Others classify this type of housing as C3, along with mainstream housing, which means full charges apply. Audley Retirement argued that extra care housing should fall within the C2 class:

“Extra care is set up to fulfil many of the functions that care homes can provide in terms of care delivery as and when the resident requires it, monitored by an onsite care team and there is access to communal facilities. There are controls over who can occupy them by age and a need for care that do not exist on C3 standard dwellings.”

Extra care housing developers had a range of suggestions for countering this issue: an “extension and additional clarity” on C2 so that it captures extra care housing; the creation of a sub-section of C2 which attracts lower planning charges; and the creation of a “dedicated use class” for extra care housing which would enable planning contributions to be streamlined.

126. When we asked about this, the then Housing Minister, Alok Sharma, told us that the guidance will look at the “precise terminology that is used to describe the different types of older people’s housing”. 
The Select Committee concludes:
We believe that the level of planning contributions on specialist housing, which are increased as a result of the non-saleable communal areas which are a feature of this type of housing, is impeding the delivery of homes. We recommend either the creation of a sub-category of the C2 planning classification (which currently applies to residential care and nursing homes) for specialist housing, which would reduce the contributions required from developers, or the creation of a new use class for specialist housing which would have the same effect.”
In the light of these considerations, how can draft London Plan policy H15 C possibly be justified?
Simon Ricketts, 17 February 2018
Personal views, et cetera 

Class Distinctions: Planning For Older People

Housing is needed by people of all ages but there is a particular need for specialist housing for the elderly. A research report, Housing our Ageing Population: Learning from Councils meeting the Housing Need of our Ageing Population was published by the Local Government Association on 8 September 2017. From its executive summary:
“The number of people aged over 65 is forecast to rise over the next decade, from the current 11.7 million people, to 14.3 million by 2025, a 22 per cent rise. This means that one in five of the total population will be over 65 in 10 years’ time, which will become one in four by 2050. 

In the UK, the vast majority of over 65s currently live in the mainstream housing market. Only 0.6 per cent of over 65s live in housing with care, which is 10 times less than in more mature retirement housing markets such as the USA and Australia, where over 5 per cent of over 65s live in housing with care. The suitability of the housing stock is of critical importance to the health of individuals and also impacts on the demand for public spending, particularly social care and the NHS.
Making quality options available also helps with “right-sizing”, freeing up larger under-used homes back into the housing stock. 
Not only is there great need but changes to local government funding are afoot which are going to increase the pressure for supported housing for the elderly. From the LGA report:
Funding for Supported Housing: Consultation contains the key elements of the Government’s proposals for the future funding of supported housing from April 2019 including: 

“Councils will have responsibility for funding, commissioning and quality assuring all supported housing in their areas from April 2019.

“These proposals would in effect bring to an end the current housing benefit arrangements for all specialist older people’s housing at the end of March 2019“. 

We can expect policies on housing for the elderly in the forthcoming London Plan. The Mayor of London says as much in his draft Housing Strategy, published on 5 September 2017: One of his objectives is “increasing opportunities for older homeowners to move to accommodation more suitable for their needs, including benchmarks for older people’s housing requirements in the draft London Plan” (part of policy 5.2). 
I was also pleased to see a section on planning for older people in the DCLG consultation paper, Planning for the right homes in the right places (14 September 2017) even if it only amounted to two paragraphs:
“92. Section 8 of the Neighbourhood Planning Act 2017 requires the Secretary of State to provide guidance for local planning authorities as to how they should address the housing needs that result from old age or disability. Helping local planning authorities provide a simple yet robust evidence base for such groups will form part of the guidance, and will allow them to maintain the benefits of a more streamlined approach to calculating the overall housing need. 

93. When developing new planning guidance for older people, it is important that we have a shared understanding of who is included in this group. The definition of older people in Annex 2 of the National Planning Policy Framework reflects a range of people at different ages with different needs from retirement age to the very frail elderly. We are also aware of different types of housing that accommodate such a group – ranging from general market and affordable housing to specialised, purpose-built market and rental accommodation and care homes. Given the importance of planning for the need for older people as our population ages, we are reviewing whether we need to amend the definition of older people for planning purposes. We consider that the current definition is still fit-for-purpose but would welcome views.”
Not only is more housing required, there needs to be much more specificity and definition. Whilst there are more detailed supportive passages in the Planning Practice Guidance, paragraph 50 of the NPPF simply says: 
local planning authorities should: 

    * plan for a mix of housing based on current and future demographic trends, market trends and the needs of different groups in the community (such as, but not limited to, families with children, older people, people with disabilities, service families and people wishing to build their own homes)”

As the consultation paper seems to accept, the definition of “older people” in the glossary to the NPPF is extremely wide:
“People over retirement age, including the active, newly-retired through to the very frail elderly, whose housing needs can encompass accessible, adaptable general needs housing for those looking to downsize from family housing and the full range of retirement and specialised housing for those with support or care needs.”
I’m not sure on what basis the definition can be said to be fit for purpose. Housing for the elderly doesn’t fit neatly into traditional planning law, partly because it is a wide spectrum of operating models, some being a specialist version of use class C3, dwellinghouses, and some being institutional and care based in nature, falling within use class C2. 
Class C2: “Use for the provision of residential accommodation and care to people in need of. care (other than a use within a class C3 (dwelling house). Use as a hospital or nursing home.”
Class C3: “Use as a dwellinghouse (whether or not as a sole or main residence) — (a) by a single person or by people living together as a family, or. (b) by not more than 6 residents living together as a single household (including a household where care is provided for residents).”
 I wrote a blog post last year, Time To Review The “C” Use Classes?. As with other alternative or quasi residential uses, the use class distinction matters because local planning authorities have very different policy approaches in terms of whether the proposal is acceptable in that location and as to the requirements arising, for instance in relation to affordable housing. The distinction can be crucial in relation to the extent of CIL liability and indeed whether planning permission is required in the first place.

The problem is that in reality the distinctions between C2 and C3 are becoming increasingly blurred – there is a spectrum, with no clear dividing line between the two. 
At the C3 end of the spectrum, there is sheltered housing and retirement living operated by the likes of McCarthy and Stone and Churchill Retirement Living. Churchill have produced a useful guide for planning and design professionals, Retirement Living Explained (April 2017). In order to distinguish its retirement living model from general C3 use, Churchill advocates the use of model age restricted planning condition:
“Each of the apartments hereby permitted shall be occupied only by: 

* Persons aged 60 or over; or 


* A spouse/or partner (who is themselves over 55 years old) living as part of a single household with such a person 
or persons; or 


* Persons who were living in one of the apartments as part of a single household with a person or persons aged 60 
or over who has since died; or 


* Any other individual expressly agreed in writing by the Local Planning Authority. ”

Is it right that C3 retirement living should be required to deliver affordable housing when itself it meets a non-mainstream housing need? Pending any reconsideration of that policy, Churchill’s guide includes a template section 106 agreement, suggesting the making of an off-site affordable housing contribution (with early stage review if the development hasn’t started reached shell and core stage within 28 months), given that the affordable housing requirements attaching to general market housing C3 products would be inappropriate. 

At the C2 end of the spectrum, there is a variety of operating models, with a bewildering variety of descriptions, including care homes, continuing care retirement communities, assisted living, very sheltered housing and close care. 
Hardest to categorise is what the market refers to as “extra care”, which has been described as follows: 
“Extra care housing is housing with care primarily for older people where occupants have specific tenure rights to occupy self-contained dwellings and where they have agreements that cover the provision of care, support, domestic, social, community or other services. Unlike people living in residential care homes, extra care residents are not obliged as a rule to obtain their care services from a specific provider, though other services (such as some domestic services, costs for communal areas including a catering kitchen, and in some cases some meals) might be built into the charges residents pay.” (Extra Care Housing What Is It?, paper, 2015, published by Housing LIN). 

So what are the distinguishing factors between C2 and C3?
A September 2017 blog post, Update on recent Extra Care Housing Planning Appeals and CIL Success, by Tetlow King’s John Sneddon, identifies two recent appeal decisions where inspectors agreed that proposed extra care developments would fall within use class C2. (The piece is also useful on the opportunities for ensuring that C2 developments are exempted from CIL within local planning authorities’ CIL charging charging schedules.)

My Town partner Liz Christie has previously carried out an analysis of planning appeal decisions. The most important factors for determining whether the operation is properly to be regarded as C2 or C3 use are (i) the physical layout of the building; (ii) the level of care; and (iii) the nature of the operation of the proposed development. We can go into more detail on each of these aspects, with appeal references, for anyone with a specific interest in the issues but, in summary, the whole area unnecessarily complicated and uncertain. Some standardised definitions and policy expectations would be really helpful.  
I wrote this blog post as a by-product of preparing to speak at LD Events’ 26 September 2017 conference, Alternative Residential Property 2017. See some of you there. 
Simon Ricketts, 16 September 2017
Personal views, et cetera