Clause 25 - Abolition of duty to maintain housing register
Homes Bill
6:00 pm
Mr Don Foster (Bath, Liberal Democrat)
The amendments highly technical and will need careful explanation. I apologise in advance if I stretch the Committee's patience, but I must explain clearly and precisely why they are important.
Sometimes when considering legislation that changes existing legislation, we can throw away some of the good bits of the legislation almost by mistake. The general purpose of the group of amendments is to address one such case, because I genuinely believe that the new proposals will remove important safeguards. That is particularly true of amendment No. 75 and new clause 5, but also applies to new clauses 6 and 11. I believe that the Government have not gone far enough to improve matters that they sought to improve in their amendments to the Housing Act 1996.
Amendment No. 75 and new clause 5 would amend the Bill to include a right of review of local authority decisions on the allocation of accommodation at two points in the allocations process: first, when decisions are taken on eligibility and, secondly, when decisions are taken to reduce the priority given to an application. The amendment would introduce a right of review of decisions on whether an applicant is eligible for consideration under an authority's allocation scheme. The Bill sets out the same criteria for local authorities to use in determining eligibility as the 1996 Act; asylum seekers and others subject to immigration control are not eligible to be considered. However, in sweeping away much of the old allocations framework, the Bill also removes the right of review on decisions of eligibility contained in section 164 of the 1996 Act.
The rules on eligibility are enormously complicated. The Department's guidance to local authorities includes 45 pages of explanation and there is no single formula that can be applied. Case law illustrates the changing situation, not least as it affects individual cases, and there is the added complication of different interpretations in the European Court of Justice. To illustrate the complexity, I remind the Committee that most asylum seekers are ineligible, which is what the Government intend. However, if an asylum seeker is from a country with which the United Kingdom has an agreement on reciprocal social security rights, he or she may be eligible. For example, asylum seekers from Turkey may be eligible because Turkey is a signatory to the Council of Europe social charter.
There are many other complications. For example, a common error made by some authorities is to rule that someone with exceptional leave to remain is ineligible, even though such people are entitled to apply under the complex eligibility criteria. There is a complex set of arrangements for eligibility but no right of review if someone is declared ineligible, thus denying a basic human right.
New clause 5 would introduce a right of review of a decision to give low priority to an application. That is complicated because the Bill makes significant changes to the way in which social housing is allocated, not least by removing the requirement to maintain a housing register, and introduces the right to apply for accommodation. Under a number of criteria, the Bill, therefore, allows a local authority to use its discretion to give lower priority to some individuals. Those criteria include rent arrears, allegations of excessive noise and antisocial behaviour.
The 1996 Act gives applicants a right of review when they are excluded from the register as a result of those criteria being applied. I acknowledge that there is no right of review when the applicant is merely suspended from the register but it exists for those who are taken off the register.
It strikes me as wrong that a right of review has been removed in what could be contentious cases. Applications may be denied because applicants have not paid their rent, even when they have not done so because housing benefit has not been received. I suspect that Committee members will be familiar with that situation from their constituency surgeries. If no right of review exists, there is no opportunity for such applicants to make their case. The purpose of new clause 5 is to reinstate the right of review that existed in the 1996 Act.
Hon. Members may be concerned that the new clause will lead to a large number of such cases. However, the Department's research, which examined the arrangements under part VI of the 1996 Act, demonstrates that only a small number of such cases arose. Very few reviews were sought but, significantly, when they were sought, about 50 per cent. of decisions were overturned. That shows that when local authorities examined cases closely and had access to additional information provided by the applicant, they discovered that mistakes had been made; perhaps more information came to light that proved that rent arrears had occurred due to non-payment of housing benefit. Mistakes are made, and they can be rectified in a review. New clause 5 is important in those circumstances.
New clauses 6 and 11 deal with decisions about homelessness, such as whether the applicant has a priority need or whether he or she is intentionally homeless. Those issues are covered in part VII of the 1996 Act and the two new clauses seek to build on that legislation.
The 1996 Act allows an applicant a right of review of homelessness decisions taken by a local authority. The applicant can go further and appeal to the county court on a point of law if the application is unsuccessful. The local authority also has the power, not the duty, to accommodate an applicant during the review and appeal process. New clause 11 argues that local authorities should be required to accommodate an applicant—except in what might be deemed hopeless cases—pending the review of a homelessness decision. New clause 6 would extend, in certain circumstances, the fixed 21-day time limit that is currently allowed for lodging an appeal with the county court. As with new clause 11, it would also require a local authority to provide accommodation pending an appeal of a homelessness decision, except in hopeless cases.
There is much confusion about the appeal and review process. If the person we talked about earlier were given 24 hours in which to decide about a final offer of accommodation, refused the offer and was then removed from the list of people whom the local authority must help, that person could appeal. If he were unsuccessful in that appeal, that would be the end of it: he would have to fend for himself. However, if that person were to accept the offer, despite being unsure about it, the current arrangements would allow him to appeal anyway.
The arrangements are unfair, and that leads to complications. Our proposals would solve some of the difficulties. No one benefits from such difficulties: neither the person appealing for help, nor the local authority that might be required to give it. New clause 11 requires the authority to provide accommodation pending the review of the authority's decision under the homelessness legislation.
We know that the existing legislation empowers local authorities to provide accommodation but the evidence shows that that power is rarely used. It is difficult for people seeking reviews if they are not housed. In most cases, they will give up and move somewhere else, which means that the review will never take place. The vast majority of reviews simply never happen because people give up when the local authority fails to provide accommodation. That causes additional difficulties, because such people are back to square one, which can affect their mental and physical health, and further increase their vulnerability. They might present to another local authority later, starting the process all over again.
I hope that the Minister will accept that argument and recognise that the problem does not concern only the time in which people have to request a review. If a review is granted, the authority has eight weeks to decide. People could wait three months, and sometimes more, without any accommodation while the review takes place. It is a long time to wait and, as I said, most people decide not to bother.
A requirement on the local authority to provide accommodation during the review period would provide greater opportunity for reviews to go ahead and to check whether the right decision was made in the first place. I stress that there should not be a blanket requirement because there will be reviews that, in the local authority's view, have no chance of success. New clause 11 would provide a get-out clause for the local authority.
New clause 6 has two purposes: first, to provide an opportunity to extend the 21-day limit and, secondly, to provide that the local authority shall make accommodation available, pending an appeal. The combination of such a rigid time limit and lack of accommodation is a huge detriment to an individual who is seeking an appeal to the county court on a point of law. The situation was easier before the 1996 Act and the leave for judicial review following the case of R. vs. Cardiff city council ex parte Barry in 1989, which I mentioned privately to the Minister earlier. At that time, the ``usual concomitant'' to pursuing an appeal was that temporary accommodation would continue to be provided to an applicant.
People will have little or no opportunity to take their case to appeal if improvements to the legislation are not made. There are four separate measures in the amendment and new clauses. The first two are designed to put back measures that have been swept away—perhaps by mistake—by the Government's proposed changes to the 1996 Act. They provide an opportunity to reconsider eligibility or the status of the appeal. The other proposals would extend current legislation to give a genuine opportunity to review homelessness cases and to allow county court appeals so that mistakes can be rectified.