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Housing (Scotland) Bill 2024 – Housing Support Services

Introduction of Housing (Scotland) Bill 2024

1. The Housing (Scotland) Bill was introduced in the Scottish Parliament on 26 March 2024. 

New Duty to Assess Need and Supply for Housing Support Services

2. Amongst other things, part 5 makes provision about housing support services.

3. Primary legislation1Section 89 of the Housing (Scotland) Act 2001 provides that a local authority, when required to do so by the Scottish Ministers, must assess housing provision and the provision of related services in its area. The Bill provides 2Under section 42 of the Bill that any such assessment must, in particular, assess the needs of persons in the area for, and the availability of, services that must be provided in accordance with section 32B(4) of the Housing (Scotland) Act 1987 and other housing support services. 

Definition of Housing Support Services

4. The services that must be provided are specified in regulations. The regulations 3The Housing Support Services (Homelessness) (Scotland) Regulations 2012 (S.S.I. 2012/331) specify the following services insofar as they are relevant to enabling a person to occupy, or to continue to occupy, residential accommodation as the person’s sole or main residence:

  1. advising or assisting a person with personal budgeting, debt counselling or in dealing with welfare benefit claims, 
  2. assisting a person to engage with individuals, professionals or other bodies with an interest in that person’s welfare, 
  3. advising or assisting a person in understanding and managing their tenancy rights and responsibilities, including assisting a person in disputes about those rights and responsibilities, 
  4. advising or assisting a person in settling into a new tenancy. 

Other Housing Support Services

5. Other “housing support services”4As defined by section 91(8) of the Housing (Scotland) Act 2001  include any service which provides support, assistance, advice or counselling to an individual with particular needs with a view to enabling that individual to occupy, or to continue to occupy, as a person’s sole or main residence, residential accommodation (other than such excepted accommodation as may be specified in regulations by the Scottish Ministers).

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Carer Support Payment (Scotland)

Introduction

1. The Carer Support Payment paid under the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023  SSI 2023/302 are designed to support individuals providing care to those receiving disability assistance.1‘The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023’,  accessed 16 November 2023 They replace the previous Carer’s Allowance in Scotland and mark a transition in how carers are supported by the Scottish Government.

Legal Framework and Transition

2. The Regulations detail the transition from the Carer’s Allowance, previously administered by the Department for Work and Pensions (DWP), to the new Carer Support Payment, which will be managed by Social Security Scotland. This shift demonstrates the Scottish Government’s approach to social security, aiming to provide a more tailored and localised system of support.

Policy Objectives

3. The primary objective of the Carer Support Payment is to provide financial assistance to unpaid carers, acknowledging the economic impact of caregiving on their ability to earn an income.

4. These regulations align with the broader social security principles laid out in the Social Security (Scotland) Act 2018, emphasising a user-friendly approach and increasing carers’ awareness of available support.

Eligibility

5. The eligibility criteria for Carer Support Payment mirror those of the former Carer’s Allowance to facilitate a smooth transition.

6. Key eligibility requirements include providing 35 or more hours of care weekly and earning below a specified threshold.

7. The regulations detail how earnings are calculated and the conditions for residence and presence in Scotland.

Provisions on Education and Income Replacement

8. The regulations diverge from the Carer’s Allowance in their approach to education, allowing for carers in full-time education to be eligible under certain conditions.

9. Carer Support Payment, being an income-replacement benefit, cannot be received concurrently with other similar benefits, addressing overlapping benefits and overpayment issues.

Suspension and Temporary Stops in Entitlement

10. The regulations include provisions for the suspension of assistance and temporary stops in entitlement. These measures are intended to manage situations where a carer temporarily ceases to meet the eligibility criteria, reducing the administrative burden of reapplying for support.

Case Transfer from Carer’s Allowance

11. A significant aspect of the Regulations is the process for transferring individuals currently receiving Carer’s Allowance to the new Carer Support Payment. This process is designed to be seamless and efficient, with minimal action required from the beneficiaries.

Conclusion

12. The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 represents a comprehensive legal framework for supporting carers in Scotland. It reflects the Scottish Government’s commitment to improving the social security system by making it more accessible and responsive to the needs of unpaid carers. The alignment with the Social Security (Scotland) Act 2018 further ensures consistency and coherence in the delivery of social security benefits in Scotland.

 

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Personal care

1. For regulatory purposes, the term “personal care” is defined in legislation. 

England

2.  In England  “personal care” is:

  1. for someone who is unable to provide it for themself by reason of:
    1. old age,
    2. illness, or
    3. disability, and
  2. which is provided in a place where that person is living at the time the care is provided.1The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 No 2936 Sch 1 para 1

3. “Personal care” means:2The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 No. 2936, reg 2(1) def: of “personal care”

  1. physical assistance given to someone in connection with:
    1. eating or drinking (including the maintenance of established parenteral nutrition),
    2. toileting (including in relation to the process of menstruation),
    3. washing or bathing,
    4. dressing,
    5. oral care, or
    6. the care of skin, hair and nails (but not nail care provided by a  registered chiropodist or podiatrist), or
  2. the prompting, together with supervision, of someone, in relation to the performance of any of the activities listed in paragraph (a), where that person is unable to make a decision for themselves in relation to performing such activity without such prompting and supervision. 

Scotland

4.  In Scotland  “personal care” means care which relates to:3Public Services Reform (Scotland) Act 2010 Sch 12 Para 20

  1. the day-to-day physical tasks and needs of the person cared for (for example eating and washing); and
  2. mental processes related to those tasks and needs (for example remembering to eat and wash).

Wales

5. In Wales, the equivalent definition is to the term “care” which relates to: 

  1. the day-to-day physical tasks and needs of the person cared for (for example, eating and washing), and
  2. the mental processes related to those tasks and needs (for example, the mental process of remembering to eat and wash).4Regulation and Inspection of Social Care (Wales) Act 2016, s.3(1)(a)

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Care Inspectorate registration – Scotland

Social Care and Social Work Improvement Scotland

1. The Care Inspectorate is the working name of a body called “Social Care and Social Work Improvement Scotland” (SCSWIS).1Public Services Reform (Scotland) Act 2010 S.44(1)

Duty to register

2. Anyone wishing to operate a care service in Scotland must register with the Care Inspectorate.2Public Services Reform (Scotland) Act 2010 S.59(1)  

A care service

3. A “care service” is any of the following:3Public Services Reform (Scotland) Act 2010 S.47(1)

  1. a support service
  2. a housing support service
  3. a care home service
  4. a school care accommodation service
  5. a nurse agency
  6. a child care agency
  7. a secure accommodation service
  8. an offender accommodation service
  9. an adoption service
  10. a fostering service
  11. an adult placement service
  12. child minding
  13. day care of children.

A support service

4. A “support service” is a service that is provided by reason of a person’s vulnerability or need and it is provided to that person or their carer but not by reason of vulnerability due to a person’s young age.4Public Services Reform (Scotland) Act 2010 Sch 12 Para 1(1)

5. Subject to exclusions the service is provided by:5Public Services Reform (Scotland) Act 2010 Sch 12 Para 1  

  1. a local authority;
  2. any person under arrangements made by a local authority;
    a health body; or
  3. any person if it includes personal care or personal support.

Personal care

6.  “Personal care” means care which relates:6Public Services Reform (Scotland) Act 2010 Sch 12 Para 20

  1. to the day to day physical tasks and needs of the person cared for (as for example to eating and washing); and
  2. to mental processes related to those tasks and needs (as for example to remembering to eat and wash).

Personal support

7.  “Personal support” means counselling or other help provided as part of a planned programme of care.7Public Services Reform (Scotland) Act 2010 Sch 12 Para 20

A housing support service

8. Subject to exceptions a “housing support service” is one provided to a person who has particular needs with a view to enabling that person to occupy residential accommodation as a sole or main residence.8Public Services Reform (Scotland) Act 2010 Sch 12 Para 19

9.  It must be a service that provides:9Public Services Reform (Scotland) Act 2010 Sch 12 Para 19

  1. support;
  2. assistance;
  3. advice; or
  4. counselling.

Excepted Accommodation

10. A service may be excepted from this definition by regulations. With regard to the residential accommodation in question in the definition of “housing support services” it does not include accommodation specified as excepted accommodation in regulations under section 91(9) of the Housing (Scotland) Act 2001.10Public Services Reform (Scotland) Act 2010 Sch 12 Para 19

Care Inspectorate guidance on applying for registration

11. The Care Inspectorate has issued guidance on applying for registration.11Care Inspectorate registration application guidance (13 July 2021)

Disqualified applicants

12. Certain individuals or bodies are disqualified from applying.12Social Care and Social Work Improvement Scotland (Registration) Regulations 2011 Reg. 3

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Care home

Description

1. A care home is a place where personal care and accommodation are provided together.1NHS Business Definitions – Care Home

2. People may live in a care home for short or long periods. For many people, it is their sole place of residence and so it becomes their home, although they do not legally own or rent it.

Types

3. There are two types of care home:

  1. Care home without nursing (residential care home);
  2. Care home with nursing (nursing home).

Care homes for HB purposes

4. For HB purposes a “care home” is separately defined as:2The Housing Benefit Regulations 2006/213 reg 2(1) def: “care home“; The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006/214 reg 2(1) def: “care home“; Universal Credit Regulations 2013/376, sch 1, para 1 def: “care home“

  1. a “care home” in England;3Care Standards Act 2000 s 3 
  2. a “care home service” in Wales, which is provided wholly or mainly to persons aged 18 or over;4Regulation and Inspection of Social Care (Wales) Act 2016 part 1 and
  3. a “care home service” in Scotland.5Public Services Reform (Scotland) Act 2010 sch 12 para 2

In England 

5. In England an establishment is a “care home” if it provides accommodation, together with nursing or personal care, for any of the following persons (unless excluded by relevant law):6Care Standards Act 2000 s 3(1)-(2) 

  1. persons who are or have been ill;
  2. persons who have or have had a mental disorder;
  3. persons who are disabled or infirm; or
  4. persons who are or have been dependent on alcohol or drugs.

6. Accommodation is not a care home unless the care which it provides includes required assistance with bodily functions.7Care Standards Act 2000 s 121(9), 3(1)-(2)

In Wales

7. In Wales a “care home service” is the provision of accommodation, together with nursing or care at a place in Wales to persons because of their vulnerability or need.8Regulation and Inspection of Social Care (Wales) Act 2016 s 2(1)(a), (2); sch 1 para 1(1)

In Scotland

8. In Scotland a “care home service” is a service which provides accommodation, together with nursing, personal care or personal support, for persons by reason of their vulnerability or need; but the expression does not include:9Public Services Reform (Scotland) Act 2010 sch 12 para 2

  1. a hospital;
  2. a public, independent or grant-aided school; or
  3. a service excepted from this definition by regulations.

Regulation of care homes

9. Care homes, as defined in the relevant legislation, are regulated by:

  1. the Care Quality Commission (in England);
  2. the Care Inspectorate Wales; and
  3. the Care Inspectorate Scotland.

Care homes and benefit entitlement

Housing Benefit

10. People who are liable to make payments in respect of a care home are not normally eligible for HB. This applies to individuals of working age or pension age.10The Housing Benefit Regulations 2006/213 reg 9(1)(k); 9(4)(a); The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006/214 reg 9(1)(k); 9(4)(a)

11. In the first instance the distinction between a “care home” and “exempt accommodation” for HB purposes may be difficult to determine for individuals with high care needs. 

12. For a benefit decision-maker it is normally whether or not the accommodation is registered that determines the matter.

Universal Credit

13. For UC claimants payments in respect of a care home are excluded from being rent payments for UC calculation purposes.11Universal Credit Regulations 2013/376, sch 1, para 3(d)

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Exempt accommodation [SA1]

1. Residents in “exempt accommodation” are protected from the various schemes of rent restriction that have been introduced into the HB scheme since 2nd January 1996. 

2. This does not mean that the Council will meet unreasonable amounts or unreasonable increases in the rent of such accommodation. It must, however, consider the various tests and safeguards found in the updated version of the pre-January 1996 rules.1A – The restriction on unreasonable payments for working-age claimants is now found in Housing Benefit Regulations 2006/213 , reg 13 as inserted by Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217, sch 3, para 5(2)
B – The restriction on unreasonable payments for non-working-age claimants is now found in Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006/214 reg 13 as inserted by Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217, sch 3, para 5(2)
C – The restrictions on rent increases for working-age claimants is now found in Housing Benefit Regulations 2006/213 , reg 13ZA as inserted by Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217, sch 3, para 5(3)
D – The restriction on unreasonable payments for non-working-age claimants is now found in Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006/214 reg 13ZA as inserted by Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217, sch 3, para 5(3)

Definition

3. This section describes the conditions that must be met for a dwelling to be designated “exempt accommodation”.

The landlord

4. The landlord must have a particular legal status. Exempt accommodation means accommodation which is “provided by”:3Universal Credit Regulations 2013/376 sch 1 para 1 def: exempt accommodation,  Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217 sch 3 para 4(10) def: exempt accommodation para b

  1. a housing association;
  2. a registered charity;
  3. voluntary organisation; or 
  4. a non-metropolitan county council in England. 

Provision of care, support or supervision

5. The identified landlord or a person acting on its behalf must also provide the resident with care, support or supervision.2Universal Credit Regulations 2013/376 sch 1 para 1 def: exempt accommodation,  Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217 sch 3 para 4(10) def: exempt accommodation para b 

Resettlement places

6. The term exempt accommodation also includes accommodation (a resettlement place) that was in receipt of a Resettlement Grant. 4Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006/217 sch 3 para 4(10) def: “exempt accommodation” para a (These were formerly nationally run resettlement units that provided temporary accommodation for homeless people that were transferred to local providers).

Purpose of the “exempt accommodation” definition

Exclusion from UC help with housing costs

7. For working age claimants “exempt accommodation” is also a category of specified accommodation. Consequently, working age UC claimants living in exempt accommodation are not entitled to UC help with their housing costs.5Welfare Reform Act 2012, s 11, Universal Credit Regulations 2013/376, sch 1 paras 2, 3(h), 3A Help with their housing costs is provided by the HB scheme and may be paid direct to the landlord on request.

Exemption from the main HB rent restriction rules

8. The “exempt accommodation” definition provides HB claimants with exemption from the main HB rent restriction schemes that have been introduced from January 1996 ie.: 

  1. the local reference rent rules; and 
  2. the local housing allowance rules. 

HB excluded from the benefit cap calculation

9. A limit is set on the total amount of welfare benefits many working-age claimants can receive. This limit is known as the benefit cap. 

10. Working age claimants in receipt of HB living in exempt accommodation do not have their weekly HB award included in the calculation of the benefit cap. They potentially get a higher amount of total benefit income.6Welfare Reform Act 2012, s96, 96A, 97; Housing Benefit Regulations 2006/213, 75A, 75C(2)(a), 75H(2)

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