Optional Extra - Nov/Dec 2007
Welcome to Optional Extra. Every month we'll update you about what's happening in the world of housing and disabled people and, of course, at Ownership Options. We'll be covering subjects such as the changes in legislation affecting adaptations, the roll-out of the Homestake homebuyers' scheme and developments in benefits-based mortgage lending for disabled people. Along the way, we aim to highlight cases of good practice as well as examples of the bariers faced by disabled people in their search for decent housing.
We welcome your comments, and suggestions for subjects to be covered in future issues, which can be emailed to optionalextra@ownershipoptions.org.uk. Feel free to forward the newsletter to your colleagues, who can subscribe by emailing us at the address above quoting "subscribe" in the subject line.
Absent friendsWe’d hoped that, by this Christmas issue, we’d have been discussing both the proposed changes to the adaptation grants scheme and the Homestake Open Market Scheme Pilot’s roll-out. Having promised you information before, and been asked many times about progress since, we thought we’d take a look at what the New Year has in store.
The news from Communities Scotland regarding Homestake doesn’t entirely clear things up. We do know that, whilst Homestake has been the scheme’s name to date, it’s now being brought into a broader range of initiatives under the banner LIFT. This stands for Low Income Initiative for First Time buyers.
Whilst most of the properties sold under the Homestake element of LIFT will continue to be newly built by registered social landlords across Scotland, the open market scheme operating in Edinburgh and the Lothians will remain. It will also be tested in several other areas facing particular pressures shortly.
The mists of Government policy also shroud the consultation on the changes to the private sector adaptation grant scheme. This was expected in October but can now be expected early in the New Year as part of a wider consultation on the regulations and guidance arising from the Housing (Scotland) 2006 Act. What we can reveal is that the measures so far proposed are broadly supported by both disabled people and local authorities.
It could be an interesting 2008!
Better option = no fundingWe’ve had a number of calls recently relating to local authority grants towards the construction of a new property suitable for a disabled person. Specifically, these queries have related to whether such grants should be provided in lieu of adaptation grants that would otherwise have been provided for a less suitable house.
The answer appears to be that grants can, but don’t have to, be provided. Adaptations are dealt with by the Housing (Scotland) 1987 Act, which was amended by the Housing (Scotland) 2001 Act. Under these Acts, a local authority has a duty to provide grant funding towards the adaptation of a ‘house for a disabled occupant’ to provide toilet and washing facilities. They can also, but currently don’t have to, provide grant towards any other adaptation required under housing law.
The problem here is the use of the term ‘house’. The definition of ‘house’ in the Housing (Scotland) 2001 Act includes:
111(a) any part of a building, being a part which is occupied or intended to be occupied as a separate dwelling, and in particular includes a flat
Local authorities generally work under the principal that a home that someone plans to build is not a ‘building’ at that stage. The duty to provide adaptation grants for standard amenities does not, therefore, appear to apply. Whilst this may appear somewhat nonsensical, all is not lost. Part 5 of the Housing (Scotland) 2001 Act, titled ‘Assistance for housing purposes’ states that:
92(3) A local authority may provide assistance to an individual in connection with the acquisition, construction, improvement, repair or maintenance of housing accommodation by that individual.
Whilst ‘assistance’ isn’t defined explicitly, there is clarification in relation to similar powers that assistance can mean grant. Note that the ‘may’ means that a local authority can, but does not have to do so. So, whilst someone loses their legal right to adaptation grant for toilet or washing facilities if they’re building a new home, a local authority can still grant if it thinks it’s a good idea.
Unfortunately, in many cases local authorities ignore part 5 of the 2001 Act and focus on the part 6 of the Act under which adaptations are currently funded. They then argue that they can only grant toward adapting a ‘house’ and not toward an uninhabitable structure that will become a house.
If a local authority won't grant before or during the build, there is currently only one (somewhat ludicrous) option for a disabled person who needs grant in order to complete their new accessible home. They must complete the house without its accessible features and then apply for adaptation grant to adapt it.
Changes due under the Housing (Scotland) 2006 Act
The new adaptation grants system arising from the Housing (Scotland) 2006 Act makes clearer the link between the duty to provide adaptation grant and the ability to grant towards construction of a property. It does not, however, resolve this issue entirely as adaptations are still referred to in relation to ‘a house’. We are in discussions with the Scottish Government as to how this can be resolved through regulations. Hopefully this can be achieved before the new scheme is implemented sometime in 2008/9.
Chronically Sick and Disabled Persons (Scotland) Act (CSDPA) 1972
It’s important to remember that a local authority’s duty to provide assistance with adaptations arises fundamentally from the CSDPA and not housing legislation. Whilst housing adaptation grant can provide a means of meeting the assessed need, a refusal to provide housing grant to fund all or part of an adaptation assessed as being required does not remove the local authority’s duty to provide assistance. See the Ombudsman case below for more information.
Championing rights in the privately rented sectorWe welcomed the chance to update delegates at the Chartered Institute of Housing’s recent private rented housing conference on disabled tenants’ rights. Held on 21st November, ‘Unpicking the Locks’ looked at issues such as landlord accreditation, the repairing standard and Scottish Government policy on the private rented sector.
Ownership Options’ presentation covered discrimination in the letting of property, the duties on landlords to adjust properties let by disabled people and disabled tenant’s right to adapt let property. It’s a shame that disabled tenant’s rights aren’t as strongly enforced in the UK as they are in America, as A Happy Christmas Tale at the end of this edition demonstrates.
You can download a copy of Ownership Options presentation at Unpicking the Locks here.
Are unsuitably housed disabled people homeless?
A bit of a furore has broken out following a recent BBC Newsnight Scotland report on homelessness and disabled people. We were featured suggesting unsuitably housed disabled people could be considered to be homeless. Some housing professionals are, however, concerned that taking away the focus from those who have lost their home, or are in danger of doing so, could undermine the Government’s attempts to meet their 2012 target for the eradication of homelessness.
It’s clear, however, that the Government always intended unsuitably housed disabled people to be recognised as homeless. Its Code of Guidance on Homelessness states that:
‘9.84 Local authorities should make specific provision for the accommodation and support of homeless people with disabilities and respond quickly to requests for adaptations to housing stock which will prevent the occupier from becoming homeless. People with disabilities can be statutorily homeless if they are unable to occupy their present accommodation without excessive hardship or risk to personal safety.'
In response to the question of when is it not reasonable for an applicant to continue to occupy a house, it explains:
5.11 Sections 24(2A) and (2B) of the 1987 Act provide that a person is to be treated as homeless even if he or she has accommodation, if it would not be reasonable for the person to continue to occupy it.
5.13 Examples of how the 'unreasonable to occupy' test might be applied are given below.
• Continued occupation of the accommodation poses a substantial risk to a person's health, which could include their mental health.
• The accommodation is impracticable for a particular applicant because of his or her physical infirmities or disabilities.’
You can watch the Newsnight homelessness and disabled people report on the BBC website.
Council ‘failed to meet profoundly disabled woman's needs’In a case of significant importance to those responsible for social housing and housing adaptation grants, an English council has been admonished for failing to meet a profoundly disabled woman’s needs. The English Local Government Ombudsman found that Leeds City Council had not only failed to give proper access to alternative housing, but also failed to allocate their Disabled Facilities Grant scheme (the English version of Scottish housing adaptation grants) correctly.
The case has relevance in Scotland because the Ombudsman links the provision of assistance with finding and adapting a home to the Chronically Sick and Disabled Persons Act. This Act applies similarly both north and south of the border.
Mrs E’s case
Mr E’s wife has a serious illness causing her to become profoundly disabled. She was discharged from hospital in the summer of 2004 to her family home. This was, however, unsuitable and she needed it either to be adapted or to move to a more suitable home.
In October 2004 the family applied for re-housing through their local authority and were awarded the second highest category of priority in its choice-based letting scheme. After four months Mr E abandoned hope of finding a new home through this scheme and in February 2005 applied for a Disabled Facilities Grant.
A social work OT helped the family to identify the works required and apply for grant. Unfortunately, the Grants Section (in a different Department) disagreed with the OTs assessment. They were only prepared to fund works that would have meant that the entire ground floor would have been used for her bedroom, a bathroom and toilet, and the family kitchen. There would have been nowhere for the family to sit together because medical equipment filled her downstairs bedroom.
As a result of this dispute Mrs E was, for two years longer than necessary, confined to bed in the front living room of her home and was unable to use a toilet, bath, or shower. She could not use a special wheelchair provided by the NHS that would have relieved her pain and discomfort and could not sit either outside or with her family.
The family were finally offered a local authority house in March 2007, following the start of the Local Government Ombudsman investigation. Works are underway to extend this to accommodate Mrs E’s needs. Meanwhile the local authority has also funded the widening of the doors and other work in the present home to allow wheelchair access.
The Ombudsman’s findings
The Ombudsman reported that:
• ‘The Council did not seem to appreciate that it had a duty under Section 2 of the Chronically Sick and Disabled Person’s Act 1970 (1972 in Scotland) to meet Mrs E’s assessed need to have her home adapted. Its failure to fulfil this duty was maladministration’.
• ‘There was maladministration by the Council in relation to the Disabled Facilities Grant in having no means of resolving the conflict between the Community OT’s view and that of the Grants Officer about what work was “necessary and appropriate” to meet Mrs E’s needs’
• There was maladministration by the Council in relation to them not being prepared to review and reconsider the Grants Section’s view that a DFG could not be used to retain a family room.
• ‘It was insensitive to expect someone in Mr E’s position to devote time and energy to bidding for properties under the choice based lettings scheme.’ Although she found no maladministration in the way that the Council had dealt with the request for re-housing, she was ‘pleased that the Council has now revised its Lettings Policy to allow for direct lets to be made in exceptional circumstances’
To remedy the injustice, the Council has agreed to:
• pay £6,605 to the complainant
• establish a mechanism for resolving disputes about what adaptations are required to meet a disabled person’s needs
• ensure that all relevant officers are aware, and are periodically reminded of, the Council’s duty under section 2 of the Chronically Sick and Disabled Person’s Act
• produce a report about the lessons to be learnt from the complainant’s experience and the changes it will make to its practice and procedures.
You can read the full Local Government Ombudsman report on the complaint against Leeds City Council here.
A happy Christmas tale37 disabled Americans will no doubt have a happier Christmas having been awarded their share of damages worth $700,000 by the US courts on December 12th. The payments follow two lawsuits filed by the United States in 2001 and 2002 against Michigan apartment owner Edward Rose and Sons, along with their architects and affiliated companies.
The companies were alleged to have failed to design and construct 49 apartment complexes in seven different states in accordance with the accessibility requirements of the Fair Housing Act and the Americans with Disabilities Act.
The court’s decree required the Rose companies to set aside $950,000 in total to compensate persons who had been harmed by the lack of accessible features at the complexes. They were required to take steps to notify tenants and other persons of their right to apply for compensation. 37 disabled people were identified and $700,000 of the total compensation is to be distributed amongst these people.
The remaining $250,000 in the settlement fund will go toward increasing housing opportunities for disabled persons in communities where Edward Rose and Sons operates, in a manner to be determined later by the Court.
"This is an important settlement for persons who were denied the right to live in accessible housing," said Grace Chung Becker, Acting Assistant Attorney General for the Justice Department's Civil Rights Division. "The Civil Rights Division is committed to ensuring that individuals are not prevented from occupying the home of their choice because of illegal accessibility barriers or other violations of federal law."
"Despite the Fair Housing Act's enactment by Congress so many years ago, some landlords still fail to make their properties accessible to persons with disabilities. " said Stephen J. Murphy, U.S. Attorney for the Eastern District of Michigan.
"As a result of this case, more than 5,000 apartment units are being made accessible to citizens with disabilities. We are also pleased to be able to compensate those individuals who have been victims of housing discrimination in this case."
And finally, staying in America, further good news for disabled people as the US House of Representatives voted to maintain the budget for housing for disabled people at $237 million. They rejected the US President’s proposal to cut this figure by $112 million, which would have severely curtailed the provision of grants to finance housing for disabled people.
Optional Extra is produced every month. If you would like to receive the newsletter please e-mail us quoting "subscribe" in the subject line.
If you no longer wish to receive the summary email, please email quoting "unsubscribe" in the subject line.