My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Rooker.)
moved Amendment No. 1:
Page 3, leave out lines 6 to 14 and insert—
"( ) Meanings of "category 1 hazard" and "category 2 hazard" shall be prescribed for the purposes of this Act.
( ) Those meanings shall be so prescribed by reference to—
(a) hazards of prescribed descriptions, and
(b) a ranking system for the severity of such hazards by which the question of whether a hazard achieves a particular ranking is decided by reference to—
(i) the results of qualitative assessment of the hazard in question, and
(ii) an assessment of whether those results meet prescribed qualitative criteria."
In moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 4 and 7, which are in the group.
The amendment seeks to rewrite the way in which the two types of hazard gain meaning. The Bill proposes meanings based on a numerical scoring system; Amendment No. 1 would specifically write into the Bill that the meanings found foundation also in qualitative considerations.
So why have we brought forward the amendment? As the Bill stands, it would define the banding and categorisation of a hazard based on a numerical score arrived at by an inspector. It is not disputed that in arriving at the score professional judgment would also be required. A score would be difficult to defend unless there is some explicit recognition of the judgments required.
I am grateful to the Chartered Institute of Environmental Health, which has brought the matter to my notice and to the notice of others. It has highlighted this issue because it believes that the decision should be based on descriptions rather than just on scores. The old system that the new housing health and safety rating system will replace contained advice and guidance, but it was judgment based.
The Government have piloted version one of this system, and a number of problems were found by environmental health officers. Although version two has been produced, it has yet to be tested. There are still questions surrounding this, which is the purpose of raising the amendments at this stage.
The amendment would remove these concerns by explicitly basing the categorisation on qualitative considerations. It need not undermine the principle of a numerical system, but it would make it more of an underlying than an underpinning system. It would provide for greater protection against challenges on numerical calculations.
Along with many others, we support the principles of the new system. It is right that the effect of housing conditions on the health and safety of occupants should be decided on the basis of hazard analysis and risk assessment. We also welcome the addition of many new hazards, as compared with the current fitness standard, and also the evidence base that has been established. However, I emphasise again the concern of many that when enforcement action is taken under the new system through tribunals or courts, such cases could get bogged down in a lot of legal and technical argument about scores, arising from the use of this system.
It is important that court decisions are made on the basis of descriptions of the property rather than on scores. In this regard, the guidance notes that will be issued by the ODPM are crucial. I have had communications from the Minister about various pieces of guidance that arrived at the end of last week. I really have not had the time to digest them; perhaps the Minister can tell me more when replying to the amendments. We want the system to protect occupiers, but it must not become a charter for lawyers.
Amendments Nos. 2 and 4, which aim to widen the meaning of "hazards" to include other matters of housing condition, back up Amendment No. 1. They were discussed in another place. As I said on Second Reading, there was some discussion about the repeal of Section 190 of the Housing Act 1985. The Minister in another place wondered whether this was why these issues were being raised. It would be helpful if the Minister could clarify the Government's position on the repeal of Section 190 of the 1985 Act.
Amendment No. 7 backs up the intention of the amendments in my name in the group. I beg to move.
Amendments Nos. 5, 6, 8, 9, 16, 18, 19 and 22, which are in my name, also relate to the hazard categories of the assessment. I am aware that this series of amendments was raised in another place, but I believe it is worth us having another look at their intent in order that we may be able to discuss some of the Government's intentions in relation to the assessment of housing standards and the system for defining hazards, as set out in the Bill. I also hope that the Minister might, in his usual skilled manner—that is what I have written down here—provide noble Lords with slightly more detailed explanations than those received by honourable Members in another place. In that regard, the amendments should be seen as essentially probing in nature.
Amendment No. 5 would amend the definition of "hazard" so as to clarify that deficiencies in buildings or land should be in the immediate vicinity. It is likely that any potential problems with the house will be on the premises, so my question is: what other circumstances does the Minister envisage coming into play that would not be in the immediate vicinity?
Amendment No. 6 would require disability to be taken into account in the methodology used to determine the seriousness of hazards. The estimated number of disabled people in this country varies between 6.8 million and 8.5 million. A very large number of people are not registered disabled and are not chronically disabled, but may be temporarily disabled. They may have a dynamic disability of one sort or another, which is changing, and their needs may change accordingly. They may have moderate learning difficulties; they may fall into a number of categories; they may be temporarily very ill; they will have housing needs, be subject to hazards and be vulnerable in a way that the Bill should identify and cope with. Only by defining ability and disability using a different kind of evidence-based approach will we get to the people that we need to reach if we are to make the Bill work to the best effect.
Amendment No. 8 requires that the hazard bands should be,
"clearly defined by the appropriate national authority".
Those hazard bands will be described in regulations. To be effective and to stand up to robust legal challenge, they will need to be clear.
Amendment No. 9 would add "physical and environmental" to the definition of health. Again, we are looking for a firm commitment.
Amendment No. 16 in Clause 5 and Amendment No. 19 in Clause 7, along with Amendments Nos. 18 and 22, have a similar intent to that of Amendment No. 8. Again, we wish to probe the Minister to be more specific about the balance between category 1 and category 2 hazards and where such hazards would actually arise.
It is useful to have this large group of amendments as a preliminary to start the Committee stage of the Bill. I shall try and stick to my golden rule about not using acronyms, but I am really being tested. The HHSRS slips off the tongue quite easily, compared with the housing health and safety rating system, which I shall be repeating ad nauseam. So if I use the acronym it is because even I am getting tired of saying it.
I should like to deal with these amendments in the two groups in which they have been spoken to. To put the amendments in context, Clause 2 provides for the components of the new system to be prescribed in regulations. The components are: the method for calculating the seriousness of the hazards; the descriptions of the hazards; the bands into which the hazards may fall according to the seriousness of the hazards; and the numerical scores which determine the bands into which the hazards fall.
Subsection (1) defines hazard for the purpose of Part 1 of the Bill. It is a,
"risk of harm to the health or safety of an actual or potential occupier of a dwelling or HMO which arises from a deficiency" on the premises,
"or in any building or land in the vicinity".
Examples of such deficiencies are construction faults, dangerous features—such as broken banisters—inadequate heating or insulation, or lack of repair or maintenance.
Subsection (1) also defines category 1 and category 2 hazards. Category 1 hazards are those which are sufficiently serious as to trigger the general duty on the local authority in Clause 5 to take the appropriate enforcement action. Category 2 hazards—that is, all the other hazards—are those which trigger the powers set out in Clause 7, under which the local authority will have a discretionary power to take enforcement action.
The assessment of a hazard has two elements: how likely it is that there will be an occurrence resulting in harm, and the potential outcome of that occurrence. By virtue of Clause 2(3), the regulations that prescribe the method will take account both of the likelihood of harm occurring and the severity of the harm if it occurs. For example, a child may fall through a low window with a wide opening and no safety catch. The likelihood of falling out is no different whether the window is on the ground or the top floor of a block of flats, but the likely outcome will be very different. For other hazards—for example, excess cold—certain factors, such as the presence or lack of effective insulation, will be a factor in the severity of the health outcome.
I have made available to the Committee copies of the current draft of version 2 of the housing health and safety rating system. That document describes the method for assessing hazards; sets out the principles of scoring the hazards and placing them in bands; and lists the 29 categories of hazard covered by the system. It also gives advice on how local authority officers should operate the system using their judgment; that is, what they should look for and what can be done on the premises to remove or reduce the hazards. Most noble Lords present missed an excellent presentation on the technical aspects of the system which we held recently in an upstairs Committee Room. Nevertheless, certain Members of the Committee came to listen to the experts who designed the system.
Amendments Nos. 1, 2, 4 and 7 would miss the point of the assessment and the way it needs to work. Though new to the Committee, they are not new to the debate on the Bill and they were tabled in almost identical form in the other place. Amendment No. 1 would make technical changes to the meaning of hazards. Unless they are intended to disrupt or harm the introduction of the rating system, they undermine its objectivity, which is its primary aim. It is also clear that they reflect a view that the system is mechanistic and leaves no room for judgment. I accept that the noble Baroness, Lady Maddock, in moving the amendment, said that the inspector would still use his judgment and knowledge, but the rating system does not deal with numbers at the expense of the inspector's professional judgment and knowledge. We have been at pains to stress that. The system of course uses numbers, but the hazard score is not determined by the system; it is determined by the inspector.
Amendment No. 4 would introduce the concept of relative standards to a system of risk assessment by requiring the "age, character or locality" of a property to be taken into account. That leads us on to a slippery slope—that is not the hazard, but an unintended pun. We do not argue that the rating system seeks perfection in every dwelling. That is just not possible in the 20-odd million dwellings in this country.
Some kinds of dwelling will have characteristic defects; for instance, early-20th century terraced houses may have steep staircases that increase the risk of a fall. A local authority inspector will know that and will make appropriate allowance for it. That is my personal experience in London every day. An early-20th century steep staircase would not pass muster in a modern property today.
On the other hand, it will not be good enough for the inspector to say that, because many dwellings in his area have leaking roofs, he should play down the seriousness of that defect in a particular dwelling. The housing health and safety rating system is a tool that provides objective information as a starting point for an inspector to support his judgment of the action needed to deal with a hazard. That judgment should take on board the effect of housing conditions on the health and safety of occupants.
Amendment No. 4 would also introduce considerations of material comfort to a system which assesses the health and safety risks to occupants. That is obviously a reflection of representations that have been made regarding the repeal of Section 190 of the Housing Act 1985. Aside from any merits for a separate power to deal with minor disrepair and discomfort, it is inappropriate to introduce such considerations to the housing health and safety rating system formula.
The rating system formula will pick up disrepair where it contributes to a hazard; that is, any hazard in category 1 or 2. I can assure the Committee that that represents a very wide range of housing conditions. The worked examples that we issued in 2000 to illustrate version 1 of the rating system showed examples of category 1 hazards. We will be issuing an updated and extended series of worked examples to illustrate category 2 hazards and how the defects are taken on board. It would make for very bad regulation indeed and be confusing to those who are being regulated to try to superimpose on a regime that deals comprehensively with everything from very serious to modest deficiencies a regime that simply comes at the problem from another direction.
The housing health and safety rating system provides a tool for authorities to prioritise intervention. They can choose to tackle disrepair that contributes to modest hazards should that be their approach. Where disrepair does not even contribute to a hazard, we should hesitate to provide open-ended powers. Enforcement action needs to be proportionate and evidence based. There is no reason why authorities cannot provide advice to landlords where they judge that defects might lead to discomfort or further deterioration in the future and monitor those conditions.
I turn to the other amendments in the group. Clause 2 provides for the components of the new rating system to be prescribed in regulations. Those are: the method for calculating the seriousness of hazards; the descriptions of hazards; the bands into which they may fall; and the numerical scores. As I said, Section 1 defines "hazard" for the purposes of Part 1 of the Bill.
Amendment No. 5 would qualify "hazard" by limiting any deficiencies outside the premises to any building or land in the "immediate" vicinity. This appears to be an unnecessary change as the assessment should take account of all factors that the inspector judged to contribute to the hazard, regardless of whether they are in the immediate vicinity. Why would we not want the inspector to consider all of the relevant facts if they are available?
Amendment No. 6 would add consideration of an individual disability to the assessment of a hazard. I fully understand the motives behind the amendment and I am sympathetic, but it fails to take account of three important considerations. First, the rating system is evidence based and the evidence of vulnerability is mainly age related, although that would not prevent us adding to our evidence base over time. Secondly, the assessments are based not on the individual occupant, but on the generality of vulnerable people.
Thirdly, there are difficulties in trying to use health and safety legislation to deal with disability rights. We have serious doubts that we could reasonably use this legislation to require a landlord to make alterations and provide special adaptations to an otherwise healthy dwelling. There are other processes and procedures for aiding adaptations for people with disabilities.
Amendment No. 8 would require the hazard bands to be clearly defined by the appropriate national authority. The amendment is unnecessary, because we will ensure that the regulations prescribing the bands will be clear. In addition, the guidance may provide additional assistance.
Amendment No. 9 would clarify that "health" should include "physical and environmental" health. That is unnecessary. Clause 2(5) does not preclude physical and environmental health from the meaning of health. The clause merely states:
"In this Act 'health' includes mental health".
The purpose of Clause 2(5) is to make sure that mental health is not excluded. The parliamentary draftsman obviously thinks that we need such a provision, but I find it appalling, because mental health is a health issue like any other. Nevertheless, as we normally use it in legislation, I assure the Committee that environmental and physical health are included in the meaning of "health", but subsection (5) is needed to make sure that mental health is not excluded.
I turn to Amendment No. 16 in Clause 5. Clause 5 imposes a general duty on a local authority to take the appropriate enforcement action in relation to a category 1 hazard existing on residential premises. Local authorities may select the appropriate enforcement action from the options provided in Clause 5(2). The amendment would ensure that any category 1 hazard that exists in a dwelling is one that has been "clearly defined". All of us want to be sure that decisions taken by local authorities are sound. That is why we want those decisions to be based on an evidence-based system that helps them identify the problems in housing that matter, and to rate and prioritise them.
Amendment No. 16 reflects similar misunderstandings to those behind Amendments Nos. El and E5 to Clause 2—I am sure these amendments have been assigned different numbers now, but they were certainly E1 and E5 when first tabled, so far as my notes are concerned. It fails to take into account the fact that the assessment of the hazard is a function of the inspection carried out by the environmental health officer having regard to the guidance. Whether there is a hazard, and whether that hazard is a category 1 hazard, is therefore a professional judgment of the environmental health officer.
Amendment No. 18 is a cousin to Amendment No. 16 in that it seeks to ensure that any category 1 hazard that exists in a dwelling has been clearly defined. Again, this ignores the fact that the assessment of the hazard is a function of the inspection carried out by the environmental health officer having regard to the guidance. That, we believe, is a matter of professional judgment.
Amendment No. 19 is again related to Amendment No. 16, in that it seeks to ensure that any category one hazard that exists in a dwelling is one that has been clearly defined. We want to be sure that these are sound, and it comes down to the fact that Amendment No. 19 reflects what are apparently no more than misunderstandings behind Amendment No. 16 and Amendments Nos. 3 to 9 to Clause 2—they must be the Amendments Nos. E1 and E5 I referred to. It fails to take into account that the assessment of the hazard is a function of the inspection, and this will be a matter for professional judgment.
Amendment No. 22, the final amendment in this group, relates to Clause 7, which gives local authorities the power to take particular kinds of enforcement action in response to a category 2 hazard existing on residential premises. Authorities may select the appropriate enforcement action from the options provided. These options are essentially the same as those provided by Clause 5 in respect of category one hazards.
Amendment No. 22 fails to take into account that the assessment of the hazard is a function of the inspection, carried out in accordance with the guidance that we issued under Clause 8, by a professional environmental health officer.
I know it sounds like a bit of a damp sponge—I do not say a bucket of cold water. I have gone into some detail with this, because it is an important part of the Bill. The amendments are quite legitimately tabled for the Government to be held accountable, but I hope I have explained the general thrust of this part of the Bill. Much of what has been tabled here is a matter for the assessment, which will be carried out not on a hunch, but by a professional environmental health officer, in line with the final guidance which will be issued in due course after the Bill has received Royal Assent. So it will be some time before we have a final version of the guidance.
The Minister has, as usual, been very full and explicit in his explanations, and we are very grateful to him for that. My noble friend Lady Hamwee, sitting beside me, was wondering whether people trying to listen to this debate were wondering what on earth we were all talking about.
I challenge the Minister again with my main point: those people who are going to try to make this happen on the ground—by and large, environmental health officers—are still concerned that when enforcement action is taken, and if somebody challenges it, the legal and technical arguments in court or tribunals could be quite complicated. They are worried about the system getting bogged down. Can the Minister say what his department thinks of this proposition? That was the one thing he did not touch on.
I asked that very question this morning, putting my former constituency member hat on. What would happen, for example, if campaigning solicitors in localities, or campaigning groups, wanted to pick off one property against another? I am assured that the nature of the system is robust enough to stand court judgments on the basis of the scoring system across the range of issues, and the fact that it relates to the property and the vulnerability of people who may be in it. It will have to be an issue of judgment in the case of a particular property. That is the nature of the situation, so one cannot draw premature conclusions. I am assured that it is legally watertight. A parliamentary draftsman has prepared it so that it does what it says in the Bill—not to give anybody free advertising. But it will, along with the guidance, do that.
It is a very technical system, as was seen when we had the presentation upstairs by the external experts who designed it. We are satisfied that the system is robust, and the way it is drafted in the Bill is fit for the purpose we intend, without succumbing to the pitfalls of nit-picking in the courts over the judgments of environmental health officers.
I thank the Minister for that response, and for the presentation on how the system works.
The Minister, in referring to Amendment No. 4, felt that it was not quite the appropriate place for it, so I shall read what he said very carefully. It may be that there will be other matters we might want to return to at a later stage, but I certainly will not be pressing the amendment for the moment.
I thank the Minister for his detailed reply. I come back to the question of whether a "vicinity" is a vicinity or an immediate vicinity. The concept of a vicinity goes very wide, and in terms of individual properties, one has to ask "How wide is wide?". Would a house in danger of collapsing in the street behind be in the vicinity? I presume, if it was a hazard to property, it might be. If there was a tree whose roots were coming through, and nobody knew quite how far but the tree was two streets away, would that be in the vicinity?
One has to be really careful about this definition. We have clearly defined some things, but if we do not clearly define this then the environmental health officers will use their own discretion as to how near or how far they are going on what could potentially be a fishing expedition. Perhaps the Minister has an answer to that, then I will come to the next point.
It would be unreasonable for people to go on fishing expeditions. It means in the vicinity of vulnerable people in a particular property. Joint entrances, passageways, covered walkways jointly shared with another property but not within the property, would all certainly be within the vicinity and be used by people in the property being inspected. I am not sure about roots of a tree two streets away, but if they are affecting the safety of people in a particular house, maybe because they are making the entrance unsafe, then I would imagine that would come within the vicinity of that particular property. EHOs would certainly not be allowed, however, to go on fishing expeditions.
Thank you. I hear what the Minister says, and I shall read his reply carefully.
I am not clear why the definition of health includes mental health, which is more or less what the Bill says. I cannot think why mental health has been picked out as the only aspect of health. In this day and age, with all that we know about mental health, and all that health means, the word "health" should be all-encompassing. There should be no need for an Act specifically to pick out that one word. That is one of the reasons we have put in the others, to define the extent of jeopardised health. It appeared to be a curious single word—and a curious aspect of health—to include. It might have been easier for it simply to be removed. We needed to debate the reasons for its inclusion.
I do not know. I cannot say more than I have said. I regret that there is nothing in the Explanatory Notes. I am assuming that in Acts of Parliament and Bills the way in which "health" has been used in the past has been found not to cover mental health, and perhaps this approach involves redefining health. The fact that mental health must be specifically stated must mean that it has been held in the past that the term "health" did not cover mental health. For the purposes of this Bill, "health" includes mental health. I assume that it is included for some historical reason involving other legislation. I shall get further particulars on this, however, because I need a better explanation. That is the only common-sense view of why subsection (5) appears as it does.
I knew that the noble Baroness, Lady Hanham, wanted to intervene so I did not withdraw the amendment earlier. However, at this point, I beg leave to withdraw the amendment.
The housing health and safety rating system—I will not attempt to pronounce its acronym—is to operate in accordance with guidance to be published by the Government. At the moment, an unfinished draft known as version 2 is available. There are 29 proposed hazards including falls, fire, structural stability, crowding and space, radon gas, security and so on.
Where an assessment is required the environmental health officer will assess each category of risk on a structural basis to establish the likelihood of the risk occurring which could cause harm within the next 12 months and the range of outcomes from such harm. The spread of outcomes relate to the risk of death or injuries that require medical attention, by a GP or hospital.
This assessment is always based on the most vulnerable age group, if one exists, and is purely age related. Depending on the category of risk, the most vulnerable are either the very young or the elderly. The reason for this is that the only statistics that exist are age based.
Many properties which will be subject to the housing health and safety rating system assessment are not lived in by the very young or the very old. Indeed, most private, rented properties are occupied by students, young couples and young working people.
The guidance assessment process disregards characteristics relating to the actual or potential occupiers, except in one case; namely, crowding and space, where the number of occupants is taken into consideration.
The purpose of the amendment is to ensure that this is done as part of the evaluation process in all cases. No guidance is intended despite the structured approach in which the first two stages of the process are to be undertaken. There would therefore be no structured way of doing this.
The effect of not making this change will be to require unnecessary works to be undertaken to properties with the consequent costs involved. This will lead to higher rents or possibly encourage the landlord—for example, an owner of one or two properties in a student area—to sell up and so reduce the amount of accommodation available. I beg to move.
The noble Lord, Lord Rooker, helpfully took us through the Clause 2 components of the new system in his earlier inspection of the way in which we see the new HHSR system working. He did so rather forensically, I thought. He usefully set out how we see it operating. For that reason, having listened to the noble Baroness, the amendment probably misses the point of the way in which the assessment must work if it is to give an objective means of comparing the severity of hazards across the housing stock. I heard what she said about assessments and how they relate to the age of the occupant and the level of risk but she failed to make a leap of faith, as it were, involving the way in which we see the system working in practice.
Amendment No. 3, which attempts to redefine hazards as a risk of harm to the health or safety of an actual or likely rather than a potential occupier, slightly misses the point. It fails to take account of the fact that the assessment system is intended to assess the condition of the property for the most vulnerable person who could potentially live there based on the principle that a dwelling that is safe for the most vulnerable is safe for all.
We need to know not who is likely to live there but only that such a person may possibly do so in future. Having come to an understanding of the degree of hazard, it will be for the environmental health officer to determine the appropriate action to be taken in the circumstances, which involve the property and the way in which it is likely to be used.
The noble Baroness may have failed to take account of that part of what happens after one has understood the level of hazard and risk as part of the assessment. The amendment is not in the end necessary although I can appreciate that it is hard—certainly at the initial stages—to get to grips with the way in which the system might work in future.
The housing health and safety rating system will probably exercise us for some time. The assessment may be done potentially for the most vulnerable but there are properties in which the most vulnerable might never live. The amount of work that would potentially have to be done to every property would be to that standard, which might not be a necessary standard. We are trying to tease out whether the standard will have to be the most extreme in every case, whatever the scoring system, or are there opportunities for people who are less vulnerable and who will be perfectly happy to occupy a property that has not been done up to the highest levels of safety and healthy existence? That was the purpose behind the amendment. My query is whether that is the case. Will everything have to be done to the most extreme standard?
Perhaps the best way in which I can help the noble Baroness is to rehearse the argument in the following terms. The local authority environmental health officer will carry out an inspection and come up with a score, which they will take away, reflect on and make a decision on what to do. The local authority will not try to get work done on the property for no particular or good reason. If no one vulnerable is living or is likely to live in the property, gold-plated work to the property, as it were, is unlikely to be undertaken. To use a phrase that is often employed in your Lordships' House, the remedy would be proportionate to the problem and relative to those most likely to live in that property. If a group of healthy, fit and active students is involved and the hazard that is there is not so extreme as to produce vulnerability to them, clearly that would colour the view of and judgment made about the most appropriate action to undertake when the environmental health officer thinks about what he or she has seen with regard to making sense of the hazard and coming up with a risk assessment. I hope that that helps.
This amendment to Clause 3 concerns local housing authorities and their duty to review housing conditions in their districts. The purpose of the amendment is to introduce the review of housing conditions and to make sure that information collected is used. The amendment aims to make an explicit link between house conditions and decent home standards. However, the Bill provides no mechanism to require local housing authorities to measure their progress towards achieving the decent home standard in the private sector. Currently, there are no data on the location of non-decent homes occupied by vulnerable people. I shall speak about that matter again in a moment.
The amendment addresses both issues and would generally alert local housing authorities to the need to work towards the decent home standard in the private sector. This is a very important area because three-quarters of all properties that do not meet the decent home standard are in the private sector. Although the Government moved some time ago to set targets for the decent home standard in social housing, it was only in 2002 that the public sector agreement target was extended to include a reduction in the proportion of households on benefits living in the private sector in non-decent homes. The target was 43 per cent in 2002 down to 30 per cent in 2010.
That indicates why this is rather an important amendment. If we are going to tackle the problem of non-decent homes in the private sector, local authorities will have to collect the facts and figures. I hope that the Minister will understand that. Later, I shall move another amendment which is also important in trying to deal with decent home standards in the private sector. I beg to move.
I have two amendments in this group, Amendments Nos. 12 and 13. Having discussed a little the intent of the new rating system, we now move on to how local authorities will go about putting it into place. Amendments Nos. 12 and 13 are similar in attempting to ensure openness and transparency in the process, allowing all those concerned to see on an annual basis what the local authority is doing on an annual basis.
Amendment No. 12 would ensure a local authority made public the report on housing in its area. Therefore, a review of housing should take place and there should be a degree of public understanding, knowledge and scrutiny of what the local authority is doing. That seems important given some of the things that have been discussed. It will be a big change, and with it will come a comprehensive analysis of a range of issues associated with housing in a given area.
Given the fundamental nature of the change and its significance, it is important that the review be published and available for inspection and subject to proper public scrutiny. Perhaps the Minister can helpfully tell us what information will be in the public domain, as the Bill now stands.
Not only should the authority make clear what it has done to review its stock; it should also make perfectly clear what its intentions are. Amendment No. 13 would complement this transparent process by ensuring that a local authority published all this information in an annual report.
I support the amendments just spoken to. I declare an interest in that for nearly 10 years I was vice-president of Neighbourhood Energy Action, as it was in those days, and is now National Energy Action. During that period, I was president of the Scottish sister organisation. Both have done an enormous amount of work, particularly in the provision of assistance to the less fortunate in insulating homes which in most cases were desperately in need of it.
Perhaps I may say something about the relationship which has existed. It has been an all-party campaign over the years. In Neighbourhood Energy Action and in Energy Action Scotland, we have had excellent support from governments of both parties. That highlights the non-party attitude taken by both governments. I hope that that will continue, as I am sure it will. I know that the Government do not wish to create legislation that is going to be an embarrassment either to local authorities or to those in the private sector who provide homes for the less fortunate and who do all they can to try to comply with various regulations.
As regards this legislation, these organisations are concerned about one or two matters. For example, they are anxious that the regulations include a requirement for a heating system which is economical and efficient and capable of heating the whole dwelling to a comfortable level in normal weather conditions and at affordable cost to the occupant. Some of these measures may be easier to state than to achieve. We hope that these points are being taken into consideration by the Government in preparing the legislation. They also believe that any property to which this part of the legislation applies must achieve an SAP rating of no less than 65.
I have seen some of the homes before and after they have been treated by the charities and provided with insulation and improvements. Very often it is the elderly who live in these houses, but there are also people with young families. The properties tend to be smaller so that a large number of them are occupied by elderly people who are not in a position to carry out the work for themselves.
I hope that all these points will be taken into consideration by the Government. I know that these amendments have been tabled not to try in any way to get something from the Government which they do not want to give, but as constructive proposals to try to ensure that the people at the sharp end receive the benefit of the improvements made. I hope that the Government consider what I have said as being helpful.
I support the noble Lord, Lord Gray. I am a vice president of National Energy Action. It is my intention later in the Bill to discuss the fact that we have different standards for different types of homes. I hope that we can reassure the noble Lord by saying that the noble Baroness, Lady Hanham, has an amendment dealing with decent home standards, particularly as regards energy. We raised this matter on Second Reading. I support the noble Lord in all the work he has done in the past.
I was almost going to say to the noble Lord, Lord Gray, that I expect to have quite detailed debates on energy and heating during the course of the Bill, but not today. That is not to devalue at all what he said; I certainly pay tribute to his work and that of all those involved in the energy action organisations. As he rightly said, the issue has always been an all-party one. I have spoken in many groups myself, sharing platforms with colleagues from other parties when I was a humble Back-Bencher and, indeed, a campaigning Front-Bencher. It is more difficult now as a Minister, being expected to have all the answers.
The clause is an important part of the Bill. It replaces, with modifications, Section 605 of the Housing Act 1985, which had its origins in the Housing Act 1969. It provides part of the strategic context for the work that local authorities need to do to tackle poor housing conditions in their area. Subsection (1) places a duty on local authorities to keep the housing conditions in their area under review, with a view to identifying any action that they ought to take under the provisions mentioned in subsection (2). The provisions are those in Parts 1 to 4 of the Bill, together with those in other legislation relating to demolition, clearance and renewal.
As introduced in the other place, Clause 3 replicated the requirement in the 1989 Act to review housing conditions annually. There was some misunderstanding in the other place about what was meant by that, and we amended the clause to reflect more closely the current approach to local housing strategies, which local authorities are now expected to update periodically to cover a three-year to five-year period. The requirement in Clause 3 to keep the housing stock under review remains important, but the obligation to do so annually was out of kilter with that approach to strategies.
The purpose of the clause is to ensure that a local authority maintains a current awareness of the state of the housing stock in its area, so that it can come to a well-informed judgment on the action that it needs to take. The purpose of the clause is not to require an authority to produce reports at particular intervals, although we expect them to keep records which can be made available.
Amendment No. 11 seeks to insert into Clause 3 an extra duty on local authorities, when they are reviewing housing conditions in their area, to have regard to the decent homes targets or any other non-statutory targets set by the Government. As many colleagues will be aware, the decent homes standard and associated targets for both socially rented and private sector stock are important policy issues for the Government, and are vital in ensuring that the overall objective of housing policy—that everyone has the opportunity to live in a decent home—is met. However, the standard and targets are non-statutory. The basis on which they are being delivered is through the public sector service agreements between the Treasury and my department—the Office of the Deputy Prime Minister. Flowing from that is a framework of policy guidance and financial support to local authorities, to enable them to deliver.
The guidance that we have issued to local authorities on the decent homes target already sets out in detail the monitoring requirements that should be undertaken at local level to ensure that various milestones towards meeting the targets will be achieved. For private sector housing, we are asking local authorities to undertake periodic stock-condition surveys, to assess progress in making decent the homes of vulnerable households. As one of the noble Baronesses said, the biggest percentage of non-decent homes in the country is in the private sector. Local authorities are also required for the purposes of best-value indicators to measure progress in improving housing conditions in their area. Such progress will be monitored closely by my department, working with the government offices and the Audit Commission to ensure that the targets are met.
In the light of that very substantial policy framework for delivering decent homes which already exists, it would not be right to make the amendment to Clause 3. The framework is non-standard, and the Government do not intend to change that. I do not want to open up another debate at the moment, as I have no doubt that we will come to it later. However, we do not want to open any door to a fourth way for local authorities, people who might want to kid themselves, or people who are lying through their teeth to local authority council tenants about there being a fourth way—extra money—to meet the decent homes standard. There are only three ways, as everyone knows. They are: large-scale voluntary stock transfer; private finance initiative, in which the houses or homes remain under the ownership of the local authority; and arm's-length management organisations, again at which point the houses or homes remain in the ownership of the local authority.
Those are the three ways. There is no fourth option. I want to get that on record, for the avoidance of any doubt in future with campaigning noble Lords or noble Baronesses who might have other views. I have to make that clear, because I was at a local authority on Friday and was handed a leaflet—not by the authority, but by some of the local people campaigning—that said that there were four ways for decent homes, one of which was for them to remain council tenants. People can remain tenants in homes with ownership by the council, but there is no fourth way. I want to make sure that there is no back door to a fourth way. I hope that that is useful for further debates on the Bill.
Amendment No. 12 attaches to the duty to review housing conditions a requirement to publish a report of the review. Those reviews are ongoing, however. The amendment also asks authorities to publish details of the action that they propose to take, and details of their intentions as regards any discretionary licensing. The amendments somewhat miss the point. Clause 3 is a strategic rather than an enforcement provision. In respect of discretionary licensing, Clauses 55 and 77 already make substantial provision, including consultation before the designation of additional or selective licensing. Amendment No. 13 adds a requirement for local housing authorities to publish an annual report in relation to review of housing conditions. It is not clear whether that is the report already referred to in Amendment No. 12.
As I said, local-authority housing strategies are now on a more statutory basis following the Local Government Act 2003. Section 87 of that Act enables the Secretary of State to require an authority to have a strategy in place, to require it to produce a statement and to influence the content of that statement. The Office of the Deputy Prime Minister, through the government offices, works with local authorities to ensure the production of "fit for purpose" housing strategies which are current for at least three years. The plans are expected to include effective delivery of decent homes—now extended to the private sector, which is absolutely crucial because of the large number of vulnerable people involved.
Given the fact that the debate is a precursor to others, certainly so far as insulation and energy are concerned, I hope that the noble Baronesses will not press their amendments.
I hear what the Minister says. As he got to his feet, it occurred to me that the housing strategy was applicable to the issue and that we needed to take note of it. None the less, the reviews will not take place very quickly, simply because of the extent of the work that will be required and the number of environmental health officers who will need to be employed.
Perhaps I should declare my interest as a member of the local authority for the Royal Borough of Kensington and Chelsea. Having been chairman of the housing committee, I remember the condition surveys that used to have to be undertaken, and the fact that they were lamentably slow. That was in an authority that was really well funded and resourced. One could see that, whether the issue had priority or not, it could be a slow job, especially in areas where property is in relatively poor condition anyway. It would seem sensible that there should be some review of what was being undertaken and why, if there were so many properties to be dealt with that there was some slowing down. We were interested to know how many properties were being surveyed, what the outcome was and, if there were targets, whether they were or were not met. That was the purpose of the amendment. I hear what the Minister says, and we may or may not return to that at a later stage.
As usual, the Minister gave a full and clear explanation of how the Government will monitor progress towards a decent home standard. I particularly spoke about a decent home standard in the private sector because of the issues that we are talking about. I had no intention of raising the fourth way, but perhaps we will do that another time. As the Minister said, decent homes and the warmth and thermal capacity of a home are very important and I am sure that we will return to those issues. I beg leave to withdraw the amendment.
This is a simple, straightforward amendment that would give a group of electors living in a particular neighbourhood or area a route to make an official complaint. We believe that there needs to be some safeguard, otherwise an individual bearing a grudge might well make repeated complaints. The amendment takes that into account by allowing a certain proportion of local residents to come together and act. It is important that when things are being done in their name—as will be done under these clauses—people should be encouraged to become involved in their neighbourhoods and in the state of local housing. I beg to move.
It is a simple, short and clear amendment, but I have to disappoint the noble Baroness—I will not be able to accept it. I hope that I have sufficient reasons to explain why.
Clause 4 replaces with modifications Section 606 of the Housing Act 1985. That section places a duty on the proper officer of a local authority to make a report to the authority if he considers that a dwelling house or a house in multiple occupation is unfit for human habitation or that an area should be dealt with as a clearance area. It also requires a proper officer, as distinct from the authority itself, to inspect such a property or area in response to a complaint by a justice of the peace or a parish or community council that the property is unfit or the area should be cleared.
We introduced amendments in the other place to set out the meaning of Clause 4 more clearly. In particular, they reduced the prominence that it appeared to give to complaints made through justices of the peace and parish or community councils, and gave more emphasis to the day-to-day responsibility of authorities to determine whether an inspection is necessary. That responsibility arises both in response to complaints and as a follow-up to their reviews of housing conditions in their area under Clause 3.
Clause 4(1) now requires a local authority to consider whether to inspect a property in its area to establish whether or not there is a category 1 or category 2 hazard. A duty to consider arises either from the authority's review of housing conditions under Clause 3 or for any other reason. Under subsection (2), where a proper officer of an authority has received an official complaint from a justice of the peace or a parish or community council that a category 1 or 2 hazard may exist on residential premises, or that an area should be dealt with as a clearance area, the proper officer must inspect the premises or area.
Inspections of premises under Clause 4 must be carried out in accordance with the regulations referred to in Clause 4(4). Where, following an inspection made as a result of an official complaint, the proper officer is of the opinion that a category 1 or 2 hazard exists on residential premises, or that an area should be declared a clearance area, subsection (6) requires him to make a report in writing to the authority without delay, which must be considered as soon as possible.
Amendment No. 14 adds an unspecified number of elected members to those who can make an official complaint. It is not clear who determines what the number will be or what the criteria are. Aside from that, we do not believe that this addition serves any practical purpose. Authorities will generally investigate all complaints as a matter of policy. There is a potentially long list of worthy people we might add to our list.
We admit to other misgivings about trying to introduce a political dimension to the issue. We should trust authorities to exercise sensible discretion when it comes to complaints. People will not be slow to use this process, whether they be parish councillors, district councillors or members of the other place. In this case, we do not see the justification for adding Amendment No. 14 to the Bill. Authorities will generally take all reasonable steps to investigate all reasonable complaints as a matter of council policy.
I thank the Minister for his reply. The wording of the Bill is odd. It effectively says that an official complaint can only be made by a justice of the peace or a parish or community council. Any other complaint is presumably not an official complaint, which can therefore be ignored by the health or housing authority if it wishes.
Perhaps this is where the difficulty lies, because if someone makes a complaint, one would expect it to be taken seriously. However, why does the Bill then introduce an official complaint? In order to get a justice of the peace to do anything about it, someone will have to get the justice of the peace or the parish council involved.
The phrasing of the amendment may not be ideal, but an official complaint has to be able to be made by a residents' association or a group of electors. I can think of a house in my borough that was a disaster zone for a number of years. It was not a matter of official complaints—complaints were falling out all over the place. It is important that people feel entitled to complain. They will, regardless of the Bill, but the wording of the Bill is infelicitous.
The language of the clause came from elsewhere. It replaces Section 606 of the 1985 Act. I do not know where that section came from, but I have already referred to a 1969 Act. It is probably old language, because, while there might be 8,000 to 10,000 parish councillors in the country, huge areas of the country are not covered by parish councils. Most big cities are not parished—I think that they ought to be, but they are not. However, that does not stop complaints being made, and any good local authority—do not forget that local authorities are checked over by the Audit Commission these days—will have a complaints policy. If they do not, they should, and I cannot imagine a local authority without one.
Complaints that are reasonably made about houses and conditions in their areas will generally be investigated as a matter of policy. I am quite happy to get a note on this matter to the noble Baroness, Lady Hanham. The language is probably an ancient throwback to previous legislation, which has been transferred from one Act to another. As I said, parish councils do not cover the whole country, so it would be quite wrong to disadvantage people who might not be able to make a complaint just because they do not have a parish council.
I would be grateful if the Minister would look into it. I do not think that my amendment is correct. I am trying to ensure that anybody has a right to make an official complaint while trying to protect against people being awkward and difficult. It may be that subsection (3) needs to be removed unless there is a very good reason—which the Minister looks as if he might have.
Official complaints, as defined in the Bill and elsewhere, are meant to be rare. Ordinary complaints—there are several categories, including dire complaints and urgent complaints—are complaints none the less. There is no reason to believe that they will be devalued simply because there is a process for making an official complaint.
The noble Baroness should look at subsection (3)(a), the first part of the subsection that she wants to amend: justices of the peace are all over the place. Although I do not want to encourage people to knock on their doors, there are a lot of JPs in the country and all areas are covered. However, that relates to an official complaint. It is intended that that will be a rarity, as opposed to ordinary complaints. Ordinary complaints are not devalued because they are not official complaints.
I do not wish to prolong the discussion, but the more I look at the clause, the more concerned I get. It includes districts and parishes, but what on earth will happen with boroughs? I declare an interest as a justice of the peace. I do not want people running around making official complaints.
We should come back to the clause. It is rather bitty, and we might make it better at the next stage. I beg leave to withdraw the amendment.
Amendment No. 15 is sensible and reasonable, and I hope that the Minister will agree. If a local authority conducts an inspection to determine whether a category 1 or 2 hazard exists and concludes that the area in question should be dealt with as a clearance area, local people have the right to be made aware of such a decision. Perhaps it is just my reading of the Bill—I would welcome the Minister's thoughts on the matter—but I cannot see how such a decision would be communicated to people who might have a vested interest in it.
Amendments Nos. 53 and 54 are also sensible and reasonable. The essence of the amendments is to provide for greater openness and clarity, and I know that those things are close to the Minister's heart. It would seem rational that, were a local authority to make a slum clearance or demolition order, the grounds on which the decision was made should be made available to any interested party.
The amendments would not compel the authority to make its decisions public—that might involve additional time and money—but would make it necessary for it to do so on written or oral request. I am sure that the Minister will not disagree with those sentiments. I beg to move.
I listened carefully to what the noble Lord, Lord Hanningfield, said. On the face of it, what he asks for is not unreasonable. However, I shall go through Clause 4 and its operation, because I think that, having listened to what I have to say, the noble Lord will probably think that we are acting entirely reasonably.
Clause 4 requires the proper officer, as distinct from the authority itself, to inspect a property or area in response to a complaint from a justice of the peace or a parish or community council that the property is unfit or the area should be cleared. We had some discussion about the history of that, and I shall come to my view on that in a while. If, following an inspection carried out as a result of an official complaint, the proper officer is of the opinion that a category 1 or category 2 hazard exists in any residential property in the district or that an area should be declared a clearance area, subsection (6) requires him to make a report in writing to the authority without delay, and subsection (7) requires the authority to consider the report as soon as possible.
Amendment No. 15 would add the requirement that, where the report of an inspection that follows an official complaint recommends that the area should be declared a clearance area, the authority must make the report available, on written or even oral request, to any interested parties. The noble Lord, Lord Hanningfield, made a plea for local people to know. That is fine, and I have no doubt that local authorities, acting in the way anticipated in the clause, will have to advertise the action that may be taken and the reasons for it. My question is this: to whom precisely are the reports to be given? In the context of the noble Lord's amendment, who is an interested party, and how would the authority determine that? There are no clues in the amendment. Should an authority be responding to an oral request? How is the person who requested the report to establish that the request has been properly made?
Obviously, we appreciate the case for openness, although it is arguable that the Freedom of Information Act 2000 ought to be the conduit for the release of information by central or, as in this case, local government, but why specifically these reports? We need to consider carefully what is likely to happen in practice. First, official complaints are likely to be few. There is no evidence that authorities receive many of them now. A question that almost came up in the debate was why the concept of an official complaint had been retained. The answer is interesting. Apparently, during consideration of the draft Housing Bill, there was no such provision. The Government were persuaded in the other place that we should retain the procedure.
My noble friend Lord Rooker put his finger on it: the provision has been there for many years. It was in the 1969 Act, I think, and my guess is that it probably goes back to some of the early legislation about fitness of premises and properties in the early 20th century and maybe even slightly before that. On a personal note, I have a feeling that it is probably because of the unique role that magistrates at one point had in considering the fitness of premises that it retains a place in the legislation. I can remember, as a housing activist and housing adviser in the early 1980s, using magistrates' courts as a means of taking enforcement action against reluctant landlords. Perhaps part of that procedure involved the concept of an official complaint, so that the information that the magistrate received led to an action. There was, perhaps, an obligation on the local authority further down the line to take action in some way. I think that that is where the legislation is coming from.
We were persuaded to retain the provision. It is a historical hangover, but it may have some use. In the circumstances that the noble Lord, Lord Hanningfield, described, it is likely that the local authority would want to ensure that local residents were well informed. However, we must consider carefully the terms on which reports should be requested, who should have the right to request them, the circumstances in which they can be requested, and how the requests would be properly made and recorded. I am concerned by the notion that detailed information should be supplied simply on the back of an oral request, when that is somewhat informal.
The occasions on which a proper officer will recommend that an area be declared a clearance area are, in the circumstances that I have outlined, likely to be extremely rare. A clearance recommendation presupposes that a large number of properties have been inspected following an official complaint. It is far more likely that the authority itself will initiate the action, leading to a clearance declaration, as part of the review under Clause 3. Clearance declarations follow the procedures set down in Section 289 of the 1985 Act, as amended by this Bill. If they proceed, the owners and occupiers of the property affected must be consulted. There is an obligation in the legislation, which was enacted by the noble Lord's party when it was in government. On balance, we consider the requirement to make such reports available unnecessary and difficult to operate in the circumstances suggested by the noble Lord, although we appreciate the spirit of openness that lies behind the amendments.
Amendments Nos. 53 and 54 are similar in their intent. One relates to the making of demolition orders, the other to the making of clearance orders. Again, the question arises of whom the reports should be made to. Who is an interested party? How do we define that? How is the local authority to determine it? There is also the vagueness of the oral request and the way in which such a request is logged and made clear in the local authority.
I recognise the case for openness. I understand the spirit in which the amendment was moved. We believe that the concept of openness is carefully enshrined in the Freedom of Information Act 2000 with which local authorities must comply. I am not persuaded that anything further is needed given the general legislation to which I referred and the requirements in the 1985 Act for notice of demolition orders to be given. We think—and I am sure that the noble Lord will agree, particularly as his party put it in place—that that legislation is clear and easy to operate through the local authority. Having heard that explanation I hope that he will feel able to withdraw the amendment.
I thank the Minister for that detailed reply. Part of his answer related to the Freedom of Information Act, so it will be difficult to deny people access to the information if they want it. Some of the decisions will be controversial; for example, planning decisions where people are concerned about what is happening to properties next to existing properties. These days, people want openness and the most information possible to be made available on planning decisions.
I can see that some of the decisions will be controversial. I understand the Minister's point on magistrates. We have moved on a great deal and most of the action will be taken by local government under this part of the Bill. The Minister accepted that there should be openness. We are suggesting that the information should be available to those who request it. It would probably be a job to prevent that anyway under the Freedom of Information Act. As the Minister went along with what we were saying I do not understand why the Government cannot accept the amendment. It would probably be a job to refuse it.
I was trying to set out for the noble Lord the practical circumstances in which this situation might occur. I am not convinced that the noble Lord's suggestion adds anything to what would be expected of the local authority in any event.
The noble Lord invites me to accept the amendment on those terms; I am not minded to do so. If he tables a similar amendment at a later stage we will ensure that we can describe to him, in even more detail if he wishes, exactly how the local authority would be expected to operate in those circumstances. I invite him to reconsider the woolliness of his proposition, because the questions I posed back to him about who an interested party might be and whether we should accept mere oral requests for detailed information would probably trouble some local authorities—perhaps not his own because it is not a housing authority, but certainly the district authorities that operate within Essex County Council.
If the noble Lord is prepared to think about the operability of his suggestion—and I am certainly prepared, in offering explanations at a later stage, to consider the obligations on the local housing authority over and above those in the 1985 Act that I described—perhaps we will reach an amicable score draw on the amendment.
Before the noble Lord responds, perhaps I may say that, if he tables another amendment, we would find it helpful if he could explain how his proposals fit in with the technical and detailed freedom of information provisions under which local authorities have to provide for requests for information. It would be helpful to these Benches to understand how the two might lie together. The Minister referred to that, but there might be considerable practical difficulties in operating separate systems.
I find the amendment not only woolly but almost undeliverable. It would make available to any interested party—and we are talking about clearance areas, which are always controversial—reports that would probably cost a great deal of money to draw up. What about the financial impact on the local authority if hundreds of people want information? As worded, the amendment means that the local authority would have to give any report to any interested party. Who will decide who is an interested party? That is a potential conflict. Or how does one prove that an oral request by telephone was made? The amendment's intention is good, but not only is it woolly, it would be damaging to the Bill.
I am confused, but happy to be confused at a higher level. It is easy to define interested parties under law. It is easy to consider what currently happens in the planning world. When a planning application is made, an announcement is made and interested parties can consider it. Little notices go up on lamp posts and residents' associations or interested parties often get together and may define themselves. It is only a question of defining "interested parties", which would not be difficult.
We seem to have had a great deal of debate on the issue. In response to the noble Baroness, Lady Dean, local authorities have to respond in considerable detail to planning applications. Many planning applications are controversial, particularly when one wants to build on areas and neighbourhoods where people do not want building. Planning authorities receive hundreds of requests for information and detail about planning applications which they cannot refuse. This would be no different.
I accept the comments of the noble Baroness, Lady Hamwee, and I thank the Minister for his answer because it offered a way forward. He rightly said that I am involved in Essex County Council and that it is not the housing authority. Between now and further stages of the Bill, I would like to consult my colleagues on housing authorities in local government and see if we can come back with a better suggestion. The Minister said that if we talk to local government about it we might come back with a solution that we could all accept about how and to whom the information will be made available. I beg leave to withdraw the amendment.
moved Amendment No. 17:
Page 5, line 20, at end insert—
"(h) serving a deferred action notice under section 86 of the Housing Grants, Construction and Regeneration Act 1996 (c. 53) (unfitness for human habitation etc: party to improve enforcement procedures) as specified in the Housing (Fitness Enforcement Procedures) Order 1996 (S.I. 1996/2885)."
Both Amendments Nos. 17 and 20—which is in the name of the noble Baroness, Lady Maddock—should be seen as consequential to the removal of Clause 50. I will therefore comment on why we believe the clause is unnecessary. The minded-to procedure was introduced by the last government as a measure of deregulation. Its repeal is now proposed by the present Government as a measure of deregulation.
The procedure was introduced under Sections 81 to 86 of the Housing Grants, Construction and Regeneration Act 1996 as a deregulatory measure to save costs and avoid formal regulatory action being taken when it could be avoided. It was the answer to widespread concerns by landlords that local authorities were proceeding immediately to service of formal notice.
Under the minded-to procedure, before serving a formal notice the local authority must serve a notice of its intention to do so and give the landlord the opportunity to object and make representations. This includes a right for the landlord to appear in front of an officer appointed by the local authority to make representations before any informal action is taken. This procedure can be overridden in urgent cases.
Experience has shown that the procedure has worked well. It removes a source of friction between local authorities and landlords. It gives the landlord an opportunity to negotiate with the local authority. More time may be needed to do the work or it may be agreed that substitute works are satisfactory or indeed a particular item may not need to be done at all. In the majority of cases in response to the minded-to notice the landlord has given an undertaking to do the work so as to avoid service of formal notices.
The landlords' association in Leeds—the Leeds Property Association—has had direct experience of the operation of the procedures and they have worked well in practice. The ODPM has argued that the enforcement concordat provides an alternative, but that is only guidance from central Government and not binding in law. In any case, particularly in relation to HHSRS there will be a mandatory duty under primary legislation to serve notices. There is a mandatory duty to serve notice where a category 1 hazard exists, under Sections 5(2) and (3). The retention of the minded-to procedure would allow less formal procedures to be adopted in the first instance.
The serving of a formal notice attracts a fee of up to £300. The imposition of fees of this magnitude will lead to hostility between landlords and EHOs. The responsible landlord will say, "If you had only written to me or telephoned me about this I would have dealt with it straightaway". This is the very reason that the minded-to procedure was instituted in the first place.
The Bill rightly contains, in Schedule 5, Parts 1 and 2, a consultation procedure to enable representations to be made before an HMO licence is issued, varied or refused, Why, therefore, cannot a similar procedure be retained for the service of notices especially those under Part 1 of the Bill, in respect of the HHSRS. If there is no preliminary procedure a landlord served with a notice may well have to make a protective appeal to the residential property tribunal if he contests certain aspects of the notice. There are strict time limits for such appeals. Although there is power for the tribunal to extend the time for appealing there is no guarantee of this. Unnecessary appeals may be needed simply to protect the landlord's position.
Formal service of a notice automatically sets the landlord in confrontation with the local housing authority, whereas the minded-to procedure enables good relations to be maintained so that the landlord can work with the authority to tackle a problem. If a landlord fails to take remedial action the option of serving a formal notice remains, although in most cases that would not be required. Abolishing the minded-to procedure is an unnecessary piece of heavy-handed regulation that is not conducive to creating a constructive atmosphere in which landlords and local authorities can co-operate.
Amendments Nos. 17 and 21 are consequential to the removal of Clause 50. I beg to move.
I have also put my name to the amendment and to the question whether Clause 50 stand part of the Bill. I have also put my name to Amendment No. 20, which is exactly the same as Amendment No. 17, but to a different clause.
I support the comments of the noble Lord, Lord Hanningfield, and, indeed, we have both been heavily lobbied by the Residential Landlords Association, which makes some important points. If we try to regulate the private sector we need to work with landlords. I am sure that the amount of bureaucracy with which local authorities will have to deal as a result of the Bill will be greater. Therefore anything that we can do to cut down on that bureaucracy is important.
We know that the minded-to procedure has worked and I know that the Government believe that the enforcement concordat provides a good alternative. It was part of the explanation that we were given at a session with the Minister and departmental officials. Nevertheless I should like to hear a little more from the Minister about why he thinks that it is a reasonable replacement for the minded-to procedure that has worked so well. I hope that he can persuade me that the new procedure will work. Otherwise, we should pursue this matter on behalf of landlords.
Clause 5 imposes a general duty on a local authority to take the appropriate enforcement action in relation to a category 1 hazard existing on residential premises. Authorities may select the appropriate enforcement action from the options provided in subsection (2). It operates somewhat like a menu. If the intention behind Amendment No. 17 is to retain the minded-to procedures—which is the intention of both noble Lords—the amendment is defective. The amendment attempts to add deferred action notices under Section 86 of the Housing Grants, Construction and Regeneration Act 1996 to the menu of options open to an authority with housing responsibilities to deal with a category 1 hazard. Deferred action notices are in fact provided for under Section 81 of the 1996 Act. Section 86 deals with what are known as "minded-to" notices.
This is a pre-notice procedure in which the authority must give the reasons for its proposed action and it allows the person served with the notice the opportunity to make representations. We have consulted twice on the repeal of the minded-to notices—first, as far back as 1998 in a paper on changes in principle to the fitness standard and again in a paper in 2001 on the detailed proposals for the HHSRS procedure. At that point there was broad support to remove them. I am aware that there are still those who would retain those procedures.
Repeal of the minded-to procedures is in part a deregulatory measure. It was seen as costly and bureaucratic and a potential delaying tactic by owners who wanted to stall the improvement of their property. It is unnecessary where informal procedures are already in place. As the noble Baroness, Lady Maddock, and the noble Lord, Lord Hanningfield, said, we have encouraged authorities to sign up instead to the enforcement concordat. The great majority have done exactly that. The concordat commits authorities to good enforcement practice, including consultation with those affected by their enforcement powers, providing information and discussing compliance failures. The minded-to procedures are unnecessary because of the success of the concordat. This is why the Government have long advocated their repeal.
I should declare an interest because I have a feeling that in my earlier life in the Local Government Association I was partly responsible for encouraging the development of concordats. I recall that I may even have attended the signing ceremony in March 1998—although I should not wish to be pressed on that. I certainly remember the concordat process and I had the impression at that stage that local authorities preferred the concordat—with its degree of informality, its pre-consultative format and an agreement to engage with those affected by enforcement action—rather than having to go through what was sometimes seen as the activation of a pre-enforcement process being used just to delay appropriate enforcement action.
For those reasons, we feel unable to accept Amendments Nos. 17, 20 and 21, which have a similar effect.
The noble Baroness, Lady Maddock, wanted to be persuaded. Perhaps I should make a final point. Over time we have encouraged local authorities to sign up to the concordat. We have been impressed by their coverage. The statistics suggest that some 96 per cent of all central and local government organisations with enforcement functions have adopted the enforcement concordat. So its coverage is almost universal. As a result of that success we do not think that the minded-to process has any great merit and we want to see this element of deregulation because it reduces bureaucratic burdens on local authorities. That would be to local authorities' benefit and would reduce burdens on them because we want them to act in a more precise way. It is perhaps ironic that both opposition Front Benches are urging us to retain something which we see as a bureaucratic burden. We are arguing for its removal because what local authorities have done has worked so well, particularly through the operation of the concordat. We want to see the application of that rather than a bureaucratic straitjacket.
Perhaps the noble Lord, Lord Hanningfield, believes that that would provide a necessary protection for landlords. I do not believe that he is motivated by that spirit because usually he sees enforcement as being important in certain circumstances. We certainly take that view.
We would like to rely on the enforcement concordat, but we do not think that the pre-enforcement minded-to approach is necessary. We congratulate local government on the progress it has made in ensuring that the concordat works effectively.
I thank the Minister for giving the detailed information about the way in which the enforcement concordat works. If he had not done so I was about to ask him whether he had some figures. In the light of his remarks, I am satisfied that the situation will be satisfactory. The issue was raised by landlords. Obviously some landlords still prefer the old system, but I am satisfied by the Minister's remarks.
As the noble Baroness said, the matter has been raised by landlords' associations as they are concerned about the processes. I totally agree with most of what the Minister has said because there has to be the ultimate sanction of enforcement. One wants to try to do remedial works as quickly as possible with the minimum of fuss. It is best to let them happen rather than go through lots of bureaucratic procedures. We shall analyse what the Minister said. I beg leave to withdraw the amendment.
moved Amendment No. 23:
After Clause 7, insert the following new clause—
(1) This section applies where a local housing authority decide to take one of the kinds of enforcement action mentioned in section 5(2) or 7(2) ("the relevant action").
(2) The authority must prepare a statement of the reasons for their decision to take the relevant action.
(3) Those reasons must include the reasons why the authority decided to take the relevant action rather than any other kind (or kinds) of enforcement action available to them under the provisions mentioned in section 5(2) or 7(2).
(4) A copy of the statement prepared under subsection (2) must accompany every notice, copy of a notice, or copy of an order which is served in accordance with—
(b) Part 1 of Schedule 2 to this Act (service of copies of prohibition orders etc.), or
(c) section 268 of the Housing Act 1985 (service of copies of demolition orders), in or in connection with the taking of the relevant action.
(5) In subsection (4)—
(a) the reference to Part 1 of Schedule 1 to this Act includes a reference to that Part as applied by section 27(7) or 28(7) (hazard awareness notices) or to section 39(7) (emergency remedial action); and
(b) the reference to Part 1 of Schedule 2 to this Act includes a reference to that Part as applied by section 42(4) (emergency prohibition orders).
(6) If the relevant action consists of declaring an area to be a clearance area, the statement prepared under subsection (2) must be published—
(a) as soon as possible after the relevant resolution is passed under section 289 of the Housing Act 1985, and
(b) in such manner as the authority consider appropriate."
Clause 5 places a general duty on local authorities to take action in respect of category 1 hazards. The local authority must take the most appropriate of the courses of action available to it. Under Clause 7, which provides powers to take action in respect of category 2 hazards, they may take one of the available courses of action.
In their 8th and 10th reports the Joint Committee on Human Rights expressed concerns that the absence of a duty on local authorities to give reasons for deciding which form of enforcement action to pursue under Clause 5 or 7 fails to comply with Article 6 of the convention on human rights, on the right to a fair hearing, with Article 8, on respect for private and family life, and with Article 1 of the First Protocol 1, on the protection of property.
The amendment aims to give effect to the Joint Committee's recommendation by placing a duty on local authorities to prepare a statement of their reasons for their decision to take the course of action on which they have settled, and to provide a copy of that statement with the notices, copies of notices and copies of orders that they are required to serve under the enforcement provisions of Part 1 of the Bill and the relevant provisions of the 1985 Act.
We believe that the new clause responds positively to the Joint Committee's concerns without placing local authorities under a significant additional burden. I beg to move.
The thrust of these amendments is to tease out a little more about guidance for the enforcement and inspection regime and the resulting costs to local authorities.
Subsection (1) states:
"The appropriate national authority may give guidance".
It is clear that guidance does not have to be given, which is why we suggest in Amendments Nos. 24 and 25 that it "will" give guidance. The appropriate national authority would therefore be under a duty to give guidance rather than merely having the power to do so.
Amendment No. 26 would add paragraphs (e), (f), (g) and (h). Paragraph (e) would make transparent the training expected of environmental health officers. It is clear what the roles to be undertaken under the new system will require but one ought to be specific about what is required of local authorities rather than the rather vague provision in the Bill as it stands.
Paragraph (f) is proposed because certain specifications are expected of local authorities. Paragraphs (g) and (h) also add to the guidance. We are trying to expand the degree of guidance needed so that the time and cost implications for local authorities are much clearer and more quantifiable. We want the situation to be clear so that authorities know what the costs are, and so that the Local Government Association can make representations to the Government for proper funding.
Amendment No. 27 would ensure that any guidance issued under this section is properly scrutinized by both Houses of Parliament rather than simply being published by the Government.
Amendments Nos. 35 and 38 would provide an avenue for a local authority to seek suitable guidance in regard to the issuing and contents of prohibition orders from the appropriate national authority.
We are attempting to probe the Government's thinking a little on the system that the Bill envisages. It would surely be preferable to have a system that is easily understood, with uniformity throughout the country. There appears to be nothing at present that restricts one local authority from interpreting this part of the Bill significantly differently from a neighbouring local authority. Circumstances will obviously change from area to area and, indeed, from district to district whatever the Government do. Surely allowing each local authority recourse to the national authority is a sensible step. I beg to move.
I regret that my response to the amendments will be a lot longer than the speech of the noble Lord, Lord Hanningfield. He said that he was probing the Government. I am all in favour of spending time on the early parts in the hope that we can avoid later amendments. One of these days we might even be able to miss out a stage.
Clause 8 enables the appropriate national authority to give guidance to local housing authorities on the exercise of their functions under Part 1. Our intention is that the guidance will fall broadly into two categories: guidance about the way in which properties are inspected and the way in which hazards are assessed, using the housing health and safety rating system; and guidance about the way in which authorities, when they have established that a hazard exists, can use the enforcement duties and powers provided in Part 1. Those relate to the use of improvement notices, prohibition orders, hazard awareness notices, demolition orders, clearance and the use of emergency measures.
Amendment No. 24 would place the appropriate national authority under a duty to give guidance, which we think is unnecessary. I can assure Members of the Committee that we intend to issue that guidance. It has already been made available in draft.
On Amendment No. 25, we are not sure what the difference is. Noble Lords will be aware that precursors of Amendment No. 26 were debated thoroughly in the other place. There was a Division, but the argument is obviously not convincing so I shall try again—hence the extra time that it will take.
Amendment No. 26 adds to the topics on which guidance may be given. We are not convinced that the additions are necessary. More that that, all but the reference to fire safety, which is important, are entirely inappropriate in guidance about the use of the enforcement tools available to authorities. It is the case that authorities need to ensure that their officers are appropriately qualified and experienced to carry out their work on behalf of the authority. Authorities will also need to consider the costs of enforcement action to themselves as well as to property owners.
We suspect that Amendment No. 26 reflects continuing nervousness over the change to a risk assessment system. But we should not have too many qualms about current competence and experience of environmental health practitioners. I have heard no criticism of those professional officers. They are highly respected and regarded by all sections of society. They have an extremely interesting job, given the range of things in which they can become involved. The rating system requires a change of approach by local authorities. But the housing health and safety rating system is essentially a tool to assist professional judgment. It makes transparent the process environmental health practitioners already go through in judging fitness.
They are already trained in the use of risk assessment methods. The Housing Minister in the other place, Keith Hill, referred to an account of their members given by the Chartered Institute of Environmental Health in their response to consultation on the enforcement guidance. The CIEH pointed to environmental health practitioners',
"experience in risk assessment procedures and ability to take an holistic view of the health, safety and welfare of occupiers alongside traditional building and means of escape defects".
I doubt very much that we are talking here about the need for new qualifications. However, we shall ensure—we have made a commitment on this—that the rating system is implemented smoothly. To achieve that we shall ensure that there is adequate training in the system, and my officials are currently discussing with the Local Government Association and others the kind of training that will be required.
Subsection (1)(f), which Amendment No. 26 would insert into Clause 8, appears once again to be an attempt to write a regulatory impact assessment into the guidance. We do not believe that that is the function of guidance.
I am aware that some local authorities have suggested that inspections may take longer than at present. If so, we are not sure whether that reflects the complexity of the rating system or shortcuts that are taken now in the fitness inspection. What is certain is that inspections are likely to vary considerably in length, both in the field and back at base. Most dwellings, even really bad ones, will not be riddled with serious hazards. They are likely to contain one, perhaps two, although there may be less serious problems as well. Some may well require considerable attention. Surely that should not be so, if a building is to be made safe for people to occupy.
On new subsection (1)(g), which would be inserted by the amendment, it is not clear in what circumstances authorities may need to compensate landlords. Landlords will have a right to appeal the improvement notices and prohibition orders for which the Bill provides, before they take effect—or, in the case of the emergency measures, after the measures have been taken. Compensation may well be an outcome of an appeal in some such cases. I suggest that compensation should be dealt with on appeal. I cannot agree that compensation should be a matter for government guidance under Clause 8; nor can we see that compensation is a likely outcome for a landlord who has kept his tenants in conditions so hazardous that a local authority has felt compelled to take enforcement action.
We must be sensible about this. The vast majority of landlords are good, decent property owners, providing a really good service for their tenants. Others sometimes deliberately keep tenants in hazardous conditions and ignore their complaints. Where enforcement action is taken in those circumstances, compensation should not be on the radar.
We take far more seriously, of course, any concerns about fire safety. Fire is one of the 29 hazards dealt with by the rating system. There will be guidance on hazards from fire. It will cover the causes and preventive measures. It is not necessary to single out fire safety on the face of the Bill. All the hazards will be spelt out in the regulations which prescribe the housing health safety rating system method under Clause 2.
We want local authorities to prioritise action against all serious hazards. In the case of houses in multiple occupation covered by Part 2, they will be required to do so following an application for a licence. I promise that we shall emphasise that in the guidance that we issue to authorities.
It would be inconsistent with a system of risk assessment to prescribe specific means of dealing with hazards. However, the technical guidance to be issued under this clause will recommend that there should be adequate means of escape from fire from all parts of a building. In some houses in multiple occupation, sprinkler systems may well be required. That does not mean that authorities will require such systems in all houses in multiple occupation, but it does mean that it will be appropriate to fit them where the risk justifies it.
I hope that noble Lords will accept that the technical guidance under Clause 8 will deal comprehensively with fire and other hazards, and I believe that the elements of the amendment are either misplaced or inappropriate in the circumstances.
On Amendment No. 27, Clause 8 enables the appropriate national authority to give guidance to local housing authorities on the exercise of their functions under Part 1. I am certainly willing to take this amendment away. We shall, of course, lay a draft of the guidance before Parliament and we are willing to consider further whether the guidance should be made by affirmative resolution. I shall bring forward a suitable amendment to provide for that, if that is the final decision.
I thank the Minister for that very full and detailed reply. He referred to many areas covered by my series of amendments. However, he did not mention the cost at all. That needs to be assessed. He mentioned such matters as training for officers, but there will be some costs to local authorities. Local authorities will want to ascertain what the costs will be as that will be part of the bid in the revenue support grant for local authorities. We shall read the Minister's reply, and we may return to some areas later. However, perhaps the Minister could give his views on where the money will come from. The more we talk about it the more it looks as though it will cost money and that money has to come from somewhere.
I had not actually finished my reply. I gave way, but I had not yet reached Amendments Nos. 35 and 38. I was making a concession. I moved back from the Dispatch Box and the noble Lord must have thought that I had finished. I shall not be accused of missing out amendments, although I do not have the full answers to the money issue. It is a little early in the Committee stage for us to come forward with the money for this. I am not saying that I shall be able to do so tomorrow, but if I can give an indication of the figures tomorrow, and if it is appropriate, I shall do so. I shall be brief, as I understand that other noble Lords have not entered the Chamber to speak on the Housing Bill.
Amendment No. 35 would enable a local authority to seek the guidance of the appropriate national authority on any of the requirements of this clause. The appropriate national authority fully intends, using its powers in Clause 8, to give comprehensive guidance to local authorities on the exercise of their functions under Part 1. I suggest, therefore, that the amendment is unnecessary.
Amendment No. 38 would appear to be intended to require the appropriate national authority to give guidance specifically on whether an undertaking, such as I have described, has been breached. Guidance will cover the full range of local authority functions, so we believe that the amendment is unnecessary.
It is a massive, bold commitment on behalf of the Government. The Government are committed to meeting the local authority start-up costs. That is fairly significant. At the moment we are discussing with the Local Government Association and the Chartered Institute of Environmental Health what costs will be covered. Our estimate at present is some £5 million. That may not sound much, but we are changing the situation. Professional officers are already in place undertaking many of those functions. There is a new system and training will have to be undertaken for that new system, but our estimate is about £5 million. We are in discussion with the Local Government Association. There is a well defined procedure for new burdens on local authorities. I understand that the new burdens requirements are quite rigorously enforced so that local government is not short-changed. As I say, the present estimate is £5 million.
I thank the Minister for a very comprehensive reply to that long list of complicated questions. I am pleased that he acknowledged that the Government will meet the start-up costs of approximately £5 million. There will be ongoing revenue costs and no doubt we shall come to those later in considering the legislation. I shall analyse the Minister's replies. I believe that we shall require further discussions as the Bill proceeds. With that, I beg leave to withdraw the amendment.