Beyond Minimal: What the 'Real Difference' Test Actually Requires

The phrase "more than minimal" appears nowhere in the Housing Benefit Regulations. Yet it has become the gatekeeping test for exempt accommodation status—the threshold that separates providers who receive enhanced housing benefit from those who receive standard rates or nothing at all.

Understanding what this test actually requires is essential for any provider operating in the supported housing sector. Get it wrong, and your entire business model may be built on foundations that will not withstand challenge.

Where the Test Comes From

The "more than minimal" formulation originates from case law, particularly the Upper Tribunal's decision in CH/424/2006, which interpreted the statutory requirement for care, support, or supervision. The regulations require that the provider (or someone on its behalf) provides care, support, or supervision to the claimant. The tribunal held that this must be "more than minimal"—a de minimis threshold below which the statutory test is not met.

"More than minimal" is not a high bar. But it is a real bar, and many providers fail to clear it.

This interpretation has been consistently followed. It remains the authoritative statement of what the regulations require. But what does "more than minimal" mean in practice?

What Tribunals Look For

First-tier Tribunal panels assessing exempt accommodation claims consistently examine several factors:

Intensity. How much support is actually provided? A support worker visiting once a fortnight for thirty minutes is unlikely to meet the threshold. Daily contact with meaningful engagement is more likely to satisfy the test.

Individualisation. Is the support tailored to the claimant's needs? Generic welfare checks that would be provided to any tenant regardless of vulnerability may not qualify. Support that responds to assessed needs and documented support plans carries more weight.

Real difference. Does the support make a real difference to the resident's ability to maintain their tenancy? This is sometimes called the "real difference test"—a separate but related inquiry that asks whether the accommodation would work without the support element.

Documentation. Can the provider demonstrate what support was actually delivered? Tribunals distinguish between what a provider says it offers and what it can prove it provides. Without records, claims are difficult to sustain.

Common Failure Patterns

Providers whose claims fail typically exhibit one or more of these patterns:

• Support is described in aspirational terms but not delivered in practice
• Support is generic rather than responsive to individual needs
• Contact is infrequent or superficial
• Staff lack training or time to provide meaningful support
• Records are absent, incomplete, or inconsistent with claimed activities

The last point cannot be overstated. When a tribunal weighs a provider's assertion that it delivers intensive support against a local authority's assertion that it does not, documentation is decisive. The provider who can produce detailed support logs, contemporaneous notes, and evidence of outcomes will usually prevail. The provider who relies on general descriptions and verbal assurances will usually fail.

Building a Defensible Model

If you want your accommodation to qualify as exempt—and to remain exempt when challenged—build your support model from the ground up with evidential requirements in mind:

• Conduct genuine needs assessments for every resident
• Create individualised support plans that respond to assessed needs
• Deliver support according to those plans—and record that you have done so
• Review and update plans regularly
• Train staff to document their activities accurately
• Retain records systematically

This is not bureaucracy for its own sake. It is the evidence base that will sustain your housing benefit claims when they are inevitably scrutinised. Without it, even genuine and intensive support may be dismissed as "minimal"—or worse, as non-existent.