What is a 'similar establishment' to a hotel, inn, or boarding house?: underlying purpose
One of the main characteristics of accommodation within a similar establishment is that the provision of the accommodation is itself the main purpose. Where the accommodation provided is subordinate to another purpose or objective tribunals have decided that treatment as ‘similar establishment’ does not apply. The following indicators are typical of such accommodation:
- it is provided for a restricted group of people, such as students or the mentally handicapped
- a degree of selectivity is exercised in relation to the choice of residents
- there is a high degree of care and supervision and control exercised over both the premises and the residents, and
- the existence of a higher goal.
Accommodation provided for students can fall within this category. In the tribunal Joseph McMurray, a Governor of Allen Hall (1973 1 VATTR 161) accommodation was provided only for male students attending a particular university and was held not to be a “similar establishment” because of the selectivity over choice of residents, high degree of control exercised over residents and emphasis on the living of a corporate, as opposed to an individual, existence. A similar outcome was reached in International Student House (ISH) LON/95/3142). In this case accommodation was provided for foreign students attending lengthy courses in a number of universities. It was concluded that the accommodation had a distinct identity or purpose of its own which was intended to foster international friendships. In both cases the accommodation element was held to be secondary to the goal of developing young people. In Sokka Gakkai International UK (LON/95/2554) the tribunal similarly found that the property’s main function was as a religious centre and not as an establishment providing accommodation.
These cases can be distinguished from Acorn Management Services (LON/2000/530). In this case the accommodation was being provided by a commercial company whose business was supplying accommodation to the university student market and there was no pretension of a higher goal as in ISH.
The fact that accommodation is intended for a restricted group is not in itself decisive. For example in Leez Priory (LON/02/182) the accommodation could only be enjoyed by wedding party guests and this did not prevent the tribunal finding that that the accommodation was provided by a similar establishment. Similarly, selection on the basis of homelessness and destitution did not prevent treatment as similar establishment in The Lord Mayor and Citizens of the City of Westminster (LON/87/564) case.
Accommodation for the homeless and for asylum seekers is often provided by local authorities and agencies contracting with the Home Office. Again, the fact that the accommodation is provided exclusively for a particular group of people may be indicative of an establishment that is not a similar establishment, but is not in itself decisive. In such cases it is necessary to consider factors such as the degree of supervision and control being provided (this can be particularly evident in relation to asylum seekers).
An example of a case in which the Tribunal found that accommodation was not provided in a ‘similar establishment’ is Dinaro Ltd T/A Fairway Lodge (VTD 17148):
The appellants ran a hostel which provided accommodation for persons with mental problems, providing care and supervision, and three meals a day. The Tribunal came to the conclusion that there were differences ‘sufficient as to make Fairway Lodge not similar to an hotel, inn or boarding house’, and that the three main elements in establishing the dissimilarity were as follows:
- the selectivity exercised over choice of residents. The establishment would only accept as residents persons with mental problems, who had been referred by the local authority’s social services department; there was no evidence that any other type of person was a resident at Fairway Lodge.
- the high degree of care and supervision for all inhabitants. Most of the residents were in receipt of the middle rate care component of Disability Living Allowance, a factor which influenced the tribunal to conclude that ‘the constant 24 hour support referred to in paragraph 5 of the Philosophy of Fairway Lodge is not an exaggeration’.
- the emphasis of a ‘family concept’ for all those who are residents. Fairway Lodge published a ‘Philosophy’ which stated, among other things, that the role of the hostel staff and residents was to promote and nurture the concept of the ‘Fairway Family’.
The tribunal found that the predominant purpose of Fairway Lodge was ‘not the provision of accommodation but the fulfilment of its objective of helping in the rehabilitation of people with mental problems and supporting and supervising the residents to aid their improvement and individual wellbeing.’ This is not something that a hotel, boarding house or similar establishment would be expected to provide.
The tribunal noted that this case turned on its own particular facts, calling Fairway Lodge an ‘exception’, and noting that it would be rare for similarly run hostels to exist.
In cases like Fairway Lodge it is necessary to establish:
- whether a high degree of care and supervision is provided for all inhabitants
- whether there is evidence of a ‘family concept’ pervading the accommodation provided and
- whether selectivity is exercised over the choice of residents.